On the 2nd of March the Supreme Court handed down their judgment in Mohamud v Morrison. The case has some significant implications for vicarious liability but does not fundamentally alter basic principle found in the line of cases following the House of Lords ruling in Lister v Hesley Hall  UKHL 22. The Supreme Court also handed down this week Cox v Ministry of Justice which goes much further than the law has previously gone before on the principle of the relationship between the defendant and the wrongdoer for the purposes of establishing vicarious liability.
The question in Cox was whether the prison service was vicariously liable for the act of a prisoner in the course of his work in the prison kitchen, where by an act of his own negligence he caused an injury to a member of the prison staff by dropping a bag of rice on her. The claimant was the supervisor of the catering operations in the prison which were specifically designed following official guidance from the Ministry of Justice to provide a working environment for the prisoners as part of the rehabilitation process, this involved payment and the capacity for prison officers (who acted as managers) to dismiss prisoners that were poor workers, which could in turn have negative impacts on their prospects for probation. The leading authority on whether the conduct between the parties constitutes a relationship of employment is Catholic Child Welfare Society  UKSC 56 where Lord Phillips established that the notion of control was to be construed broadly and the principle that defendant should be liable for torts that may fairly be regarded as risks of his business activities, whether they are committed for the purpose of furthering those activities or not (see Lord Nichols in Dubai Aluminium v Salaam  UKHL 48). The lower courts had rejected the claimants case on the basis that this was not a contract of employment because the work component was mandatory for prisoners and therefore not a contract of employment. The Supreme Court however were clear that mere “technical” arguments on the status of employment were unlikely to be successful and noted that the interests of both the prisoners and the prison management were in alignment. Lord Reed was clear that the prisoner’s activity formed “part of the operation” of the Prison and was unimpressed by the floodgates orientated arguments made by the defendants.
In Mohamud the claimant was assaulted by an employee of the defendant who was working at one of their petrol stations. The assault was unprovoked and quiet savage in nature and another employee of the defendant had attempted to prevent the assault. Applying the “close connection” test in Lister the judge at first instance held that the employee’s job involved “nothing more than serving and helping” customers and as such the defendant’s could not be held liable for the conduct of their employees. The issue before the Supreme Court claimants argued was that the “close connection” test should be replaced and the courts should apply a broader test of “representative capacity” in relation to vicarious liability. In historic cases of vicarious liability Warren v Henlys Ltd  2 All ER 935 and Keppel Bus Co Ltd v Ahmad  1 WLR 1082 assaults by employees on customers were not usually considered to impose vicarious liability on employers, following a narrow application of the Salmond test. The close connection test in Lister introduced a new dimension too vicarious liability but as it was clarified by Lord Toulson close connection should be determined in accordance with the interests of justice not measured on an imaginary scale. On this basis neither Lord Toulson nor Lord Dyson saw any problem with the basic approach of Lister. On this basis Lord Toulson concluded that
“[the employees] conduct in answering the claimant’s request in a foul mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him. What happened thereafter [the assault] was an unbroken sequence of events.
Therefore vicarious liability should be imposed upon Morrisons. One feature of this judgment is fairly clear, the ‘close connection’ did not need to be further refined. Therefore some of the commentary in the last 24 hours that this has significantly changed Tort law needs to be taken with a pinch of salt. There are three observations it is worth making;
- In Mohamud neither Lord Toulson nor Lord Dyson considered the case of Mattis v Pollock  1 WLR 2158 even though they endorsed the idea of a continuing chain of events which was initiated by the employer in the course of his duties. Mattis may not be particularly helpful given the facts of Mohamud, as in Mattis the defendants had employed the individual employee for the purposes of security which involves some level of potential physical coercion, whereas in Mohamud the employee in question was employed to serve customers. Nevertheless the crucial aspect of Mattis, that liability can be established if the alleged wrongdoing begins in the course of employment and initiates an unbroken chain of events, was implicitly endorsed.
- Cox shows just how far the Catholic Child Welfare Society principle extends in terms of considering different situations a relationship of employment sufficient for the purposes of establishing vicarious liability. However, one aspect that has now definitely been relegated to one of secondary importance is the issue of control, which was the key factor in leading authorities such as Mersey Docks v Coggins  2 All ER 345. Rather the Supreme Court seemed much more keen to endorse ‘alignment of interests’ as the principle question following the reasoning of the Court of Appeal in Viasystems v Thermal Transfer (Northern) Ltd  EWCA Civ 1151. For your exams focus on the question of alignment of interest to determine the existence of a relationship giving rise to vicarious liability.
- Whilst stretching Lister and potentially opening the door to a much wider number of claims it is not clear that the law has significantly changed. It is also noteworthy that the Law Lords did not take floodgates arguments seriously in either Mohamud or Cox. Indicating a much more ‘claimant friendly’ approach to the construction of both the close connection test and the relationship between the wrongdoer and the defendant.