Vicarious Liability

Vicarious liability is an ancient common law principle, the key features of which are:

• There must be an employer/employee relationship, normally evidenced by a contract of employment.
• The civil wrong must have been committed in the course of the employment.

This second point has caused some difficulty and has been the subject of a number of decided cases. The general rule is that a wrong falls within the scope of employment if it is expressly or impliedly authorised by the employer; or, is an unauthorised way of doing something which is authorised, or is necessarily incidental, to something which the employee is employed to do.

An early example of this is the case of Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942), where a petrol tanker driver threw a lit match to the ground while transferring petrol from the tanker to a tank in a garage. This resulted in a fire and explosion. The driver’s employer was held by the court to be responsible for the damage because the driver had been negligent in the way in which he carried out his work.

The concept of vicarious liability has been discussed and analysed in two recent cases.

Supermarket assault

In Mohamud v WM Morrison Supermarkets plc (2014), M visited Morrisons supermarket and petrol station. He asked K, an employee of Morrisons, if he would print some documents from a memory stick. K abused M, followed him to his car and assaulted him. M claimed compensation from the supermarket.

At first instance, the claim was rejected. The court made the following points:

• There was not a sufficiently close connection between the wrongdoing and the employment.
• It would not be fair and just to hold Morrisons vicariously liable.
• K’s actions appeared to have taken place purely for his own reasons and beyond the scope of his employment, which, while involving interaction with customers, involved no element of authority over them or responsibility for keeping order.

M appealed to the Court of Appeal who dismissed the appeal and made the following points:

• In considering whether there was a sufficiently close connection between the wrongdoing and the employment, a broad approach should be adopted.
• The fact that the assault took place at the employee’s place of work and at a time when he was on duty was relevant but not conclusive.
• The opportunity to be present at premises enabling the assault to be committed did not mean that the act was necessarily within the scope of employment. Some factor or feature beyond interaction between the employee and the victim was required.
• The decided cases had examined the question of close connection by reference to factors such as the granting of authority, the furtherance of an employer’s aims, the inherence of friction or confrontation in the employment and the additional risk of the kind of wrong occurring.
• On the facts of the present case, there was no element of this sort which would bring K’s case within the close connection test.

Prison injury

Another recent case is Cox v Ministry of Justice (2014).

A prisoner dropped two 25kg sacks of rice onto C, the catering department manager at a Swansea prison causing injuries. It was not disputed that the prisoner had been negligent.

C claimed compensation from the Ministry of Justice (MOJ), arguing the following:

• The MOJ was more likely to have the means to compensate her than the working prisoners.
• The tort had been committed as a result of activity being undertaken by prisoners on behalf of the MOJ.
• The activity was part of the catering business and benefited the MOJ by allowing catering for the whole prison without employing significant numbers of staff or paying outside agencies.
• By causing the prisoners to carry on the activity, the MOJ had created the risk of the tort being committed.
• The prisoners were under the control of the MOJ and were treated as though they were employees and were paid for their work.

At first instance the claim was dismissed. The court stated that the engagement of prisoners to perform work for pay was a statutory requirement for the purposes of prison discipline and the efficacy of the penal system. It was not a voluntary mutual arrangement entered into by the MOJ for its own advantage or for commercial reasons to further a business or enterprise of running prisons.

C appealed to the Court of Appeal. The appeal was allowed and the Court made the following points:

• The relationship was akin to employment. The features of ability to compensate, creation of risk and control clearly applied.
• The relevant work was clearly done on behalf of the MOJ and for its benefit.
• The activity was different from the activity of a prisoner engaged in education, training or sport.