The Test for Vicarious Liability

Posted in : HR Updates on 30 March 2016
Helen O'Brien
Personnel and Training Services
Issues covered:

Vicarious liability is a situation where someone is held responsible for the acts or omissions of another person. In the workplace, an employer can be liable for the acts and omissions of its workers in certain circumstances. It is these circumstances which have recently been examined by the Supreme Court in Cox v Ministry of Justice and Mohamud v Wm Morrison Supermarkets plc.

Cox v Ministry of Justice

In the case of Cox, Ms Cox worked for the Prison Service as a catering manager in the kitchen of a prison alongside prisoners. Ms Cox was injured by one of the prisoners who were working in the kitchen, after they accidently dropped a large bag of rice onto Ms Cox’s back. Ms Cox sued the Ministry of Justice for personal injury on the basis that they were vicariously liable for the prisoner’s negligence. At first instance the County Court rejected that the Ministry of Justice was vicariously liable for the prisoner. However, Ms Cox appealed to the Court of Appeal and they overturned the County Court’s decision and held the Ministry of Justice was vicariously liable for the prisoner, as the relationship between the prisoner and the Ministry of Justice was equivalent to employment. However, the Ministry of Justice appealed to the Supreme Court.

Mohamud v Wm Morrison Supermarkets Plc

In the case of Mohamud, he was assaulted and verbally abused by an employee of Morrisons on the premises of the supermarket’s petrol station, which is where the employee worked. Mr Mohamed sued Morrisons for personal injury, claiming that they were vicariously liable for their employee’s actions. However, the Judge held that the employee’s actions were too far removed from his employment and therefore the supermarket was not liable for his actions. This decision was upheld by the Court of Appeal and therefore Mr Mohamud appealed to the Supreme Court.

Taking other cases into consideration

In the Cox case, the Supreme Court dismissed the Ministry of Justice’s appeal and applied the elements of vicarious liability outlined in the case of Various Claimants v Catholic Child Welfare Society, in that (a) is the harm wrongfully done by a person who carries out activities as a fundamental part of the business activities of the Defendant and for its benefit and (b) the risk of the wrongful act happening arose because the Defendant gave responsibility to the wrongdoer. If these factors are present in a circumstance, then vicarious liability is able to occur, which they considered it was in this case. The Supreme Court accepted that it extended the scope of vicarious liability beyond that of employee-employer relationship, however it outlined that it was not imposing a liability when the wrongdoer’s actions were wholly attributable to an independent business of their own or a third party.

In the Mohamud case, the Supreme Court endorsed the “close connection” test for vicarious liability between the employee and employer. This was first outlined in the case of Lister v Hesley Hall Ltd, in that the essence of the job entrusted to the employee must be considered generally and the court must consider whether there was an adequate connection between the wrongful act and the employee’s position to make it right under social justice to impose vicarious liability onto the employer. Applying this test to the Mohamud case, the Supreme Court found that it had been satisfied and vicarious liability should be attributed to Morrisons. The employee’s job was to attend and serve customers at the petrol station, the employee was trying to exit Mr Mohamud from Morrisons petrol station and reinforcing this by violence, notwithstanding it being an extreme abuse of his position, the employee was in effect, acting on behalf of Morrisons business and therefore was in connection with the business and Morrisons should be held responsible for the employee’s actions.

Both these cases provide helpful insight to the tests and factors the courts will apply when deciding whether vicarious liability applies to employment and ‘employment-like’ relationships. 

This article is correct at 30/03/2016

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Helen O'Brien
Personnel and Training Services

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