Mohamud v W M Morrison Supermarkets Plc

JurisdictionEngland & Wales
JudgeLord Reed,Lord Toulson,Lord Neuberger,Lady Hale,Lord Dyson
Judgment Date02 March 2016
Neutral Citation[2016] UKSC 11
Date02 March 2016
CourtSupreme Court
Mr A M Mohamud (in substitution for Mr A Mohamud (deceased))
(Appellant)
and
WM Morrison Supermarkets plc
(Respondent)

[2016] UKSC 11

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Dyson

Lord Reed

Lord Toulson

THE SUPREME COURT

Hilary Term

On appeal from: [2014] EWCA Civ 116

Appellant

Joel Donovan QC Adam Ohringer

(Instructed by Bar Pro Bono Unit)

Respondent

Benjamin Browne QC Roger Harris

Isabel Barter

(Instructed by Gordons LLP)

Heard on 12 and 13 October 2015

Lord Toulson

( with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Reed agree)

1

Vicarious liability in tort requires, first, a relationship between the defendant and the wrongdoer, and secondly, a connection between that relationship and the wrongdoer's act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoer's conduct. In this case the wrongdoer was employed by the defendant, and so there is no issue about the first requirement. The issue in the appeal is whether there was sufficient connection between the wrongdoer's employment and his conduct towards the claimant to make the defendant legally responsible. By contrast, the case of Cox v Ministry of Justice [2016] UKSC 10, which was heard by the same division of the court at the same time, is concerned with the first requirement. The judgments are separate because the claims and issues are separate, but they are intended to be complementary to each other in their legal analysis. In preparing this judgment I have had the benefit of Lord Reed's judgment in Cox, and I agree fully with his reasoning and conclusion.

2

The question in this appeal concerns an employer's vicarious liability in tort for an assault carried out by an employee. It is a subject which has troubled the courts on numerous occasions and the case law is not entirely consistent. In addressing the issues which it raises, it will be necessary to examine how the law in this area has developed, what stage it has reached and whether it is in need of significant change.

Facts
3

In this case the victim was a customer. I will call him the claimant although he sadly died from an illness unrelated to his claim before his appeal was heard by this court. The respondent company is a well known operator of a chain of supermarkets. It has premises in Small Heath, Birmingham, which include a petrol station. The petrol station has a kiosk with the usual display of goods and a counter where customers pay for their purchases. One of the company's employees was Mr Amjid Khan. His job was to see that the petrol pumps and the kiosk were kept in good running order and to serve customers.

4

The claimant was of Somali origin. On the morning of 15 March 2008 he was on his way to take part with other members of his community in an event in London. While he was at the petrol station he decided to inquire whether it would be possible to print some documents from a USB stick which he was carrying.

5

The trial judge, Mr Recorder Khangure QC, accepted in full the claimant's account of what followed. The claimant went into the kiosk and explained to the staff what he wanted. There were two or three staff present. Mr Khan, who was behind the counter, replied by saying "We don't do such shit". The claimant protested at being spoken to in that manner. Using foul, racist and threatening language, Mr Khan ordered the claimant to leave. The claimant walked out of the kiosk and returned to his car by the air pump. He was followed by Mr Khan. The claimant got into his car and switched on the engine, but before he could drive off Mr Khan opened the front passenger door and told him in threatening words never to come back. The claimant told Mr Khan to get out of the car and shut the passenger door. Instead, Mr Khan punched the claimant on his left temple, causing him pain and shock. The claimant switched off the engine and got out in order to walk round and close the passenger door. At this point Mr Khan again punched him in the head, knocked him to the floor and subjected him to a serious attack, involving punches and kicks, while the claimant lay curled up on the petrol station forecourt, trying to protect his head from the blows. In carrying out the attack Mr Khan ignored instructions from his supervisor, who came on the scene at some stage and tried to stop Mr Khan from behaving as he did. The judge concluded that the reasons for Mr Khan's behaviour were a matter of speculation. The claimant himself had said and done nothing which could be considered abusive or aggressive.

The trial judge's decision
6

In a detailed and impressive judgment, the judge reviewed the principal authorities. He expressed great sympathy for the claimant but concluded that the company was not vicariously liable for Mr Khan's unprovoked assault. His principal reason was that although Mr Khan's job involved some interaction with customers and members of the public who attended the kiosk, it involved nothing more than serving and helping them. There was not a sufficiently close connection between what he was employed to do and his tortious conduct for his employer to be held vicariously liable, applying the "close connection" test laid down in Lister v Hesley Hall Ltd [2001] UKHL 22; [2001] 1 AC 215 and followed in later cases including Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 36 A. further reason given by the judge was that Mr Khan made a positive decision to come out from behind the counter and follow the claimant out of the kiosk in contravention of instructions given to him.

The Court of Appeal's decision
7

The Court of Appeal (Arden, Treacy and Christopher Clarke LJJ) upheld the judge's decision that the claim against the company failed the "close connection" test. The main points made in the judgments were that Mr Khan's duties were circumscribed. He was not given duties involving a clear possibility of confrontation or placed in a situation where an outbreak of violence was likely. The fact that his employment involved interaction with customers was not enough to make his employers liable for his use of violence towards the claimant.

8

Christopher Clarke LJ added that if the question had been simply whether it would be fair and just for the company to be required to compensate the claimant for his injuries from the assault, there would be strong grounds for saying that it should. The assault arose out of an interchange which began when the claimant asked to be supplied with a service which he thought the company could provide. Mr Khan, whose job it was to deal with such a request, followed up his refusal with an apparently motiveless attack on the customer, who was in no way at fault. The customer was entitled to expect a polite response. Instead he was struck on the head and kicked when on the ground. In those circumstances it could be said that the employer could fairly be expected to bear the cost of compensation, rather than that the victim should be left without any civil remedy except against an assailant who was unlikely to be able to pay full compensation. However, he concluded that this was not the legal test, and that the fact that Mr Khan's job involved interaction with the public did not provide the degree of connection between his employment and the assault which was necessary for the employer to be held vicariously liable. Christopher Clarke LJ said that he was attracted for a time by the proposition that the assault could be looked at as a perverse execution of Mr Khan's duty to engage with customers, but he considered that such an approach parted company with reality.

Grounds of appeal
9

In this court the claimant's primary argument was that the time has come for a new test of vicarious liability. In place of the "close connection" test the courts should apply a broader test of "representative capacity". In the case of a tort committed by an employee, the decisive question should be whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer at the time of committing the tort. A company should be liable for the acts of its human embodiment. In the present case, Mr Khan was the company's employed representative in dealing with a customer. What mattered was not just the closeness of the connection between his duties to his employer and his tortious conduct, but the setting which the employer had created. The employer created the setting by putting the employee into contact and close physical proximity with the claimant. Alternatively, it was argued that the claimant should in any event have succeeded because he was a lawful visitor to the premises and Mr Khan was acting within the field of activities assigned to him in dealing with the claimant.

Origins and development of vicarious liability
10

The development of the doctrine of vicarious liability can be traced to a number of factors; in part to legal theories, of which there have been several; in part to changes in the structure and size of economic and other (eg charitable) enterprises; and in part to changes in social attitudes and the courts' sense of justice and fairness, particularly when faced with new problems such a cases of sexual abuse of children by people in a position of authority.

11

According to Holdsworth's A History of English Law (1908) (vol 3, pp 383387) in medieval times the general principle was that a master was only liable at civil law for misdeeds of his servants if done by his command and consent. "It would be against all reason", said counsel in the reign of Henry IV, "to impute blame or default to a man, when he has none in him, for the carelessness of his servants cannot be said to be his act" (YB 2 Hy IV Pasch pl 5). But there were some exceptions, which today would be classed as instances...

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