Mohamud v W M Morrison Supermarkets Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Lady Justice Arden |
| Judgment Date | 13 February 2014 |
| Neutral Citation | [2014] EWCA Civ 116 |
| Docket Number | Case No: B3/2012/3263 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 2014 |
[2014] EWCA Civ 116
The Right Honourable Lady Justice Arden
The Right Honourable Lord Justice Treacy
and
The Right Honourable Lord Justice Christopher Clarke
Case No: B3/2012/3263
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Birmingham Civil Justice Centre
Mr Recorder Khangure QC
1IQ07416
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Adam Ohringer (instructed by Bar Pro Bono Unit) for the Appellant
Mr Roger Harris (instructed by Gordons Llp) for the Respondent
Hearing date: 16th January 2014
Approved Judgment
This Appeal
This appeal is concerned with a single question, namely whether the Respondent supermarket was vicariously liable for an assault committed by an employee upon the Appellant.
The appeal is against a judgment of Mr Recorder Avtar Khangure QC delivered on 7 th November 2012 at the Birmingham Civil Justice Centre. The Recorder dismissed the Appellant's claim, holding (inter alia) that although the Respondent's employee had assaulted the Appellant, the Respondent was not vicariously liable for that assault.
The Appellant filed a notice raising various grounds of appeal, essentially of a factual nature. However, at a permission hearing before Sir Stephen Sedley, permission was granted to add a further ground of appeal, namely whether the Recorder erred in law in failing to find that on the facts found by him the Respondent was vicariously liable. Sir Stephen refused permission to appeal on all grounds save for that relating to vicarious liability.
The Facts
On 15 th March 2008 the Appellant visited the Respondent's supermarket and petrol station premises in Small Heath, Birmingham. There is a kiosk which serves the petrol station which performs the function of a small convenience store. After checking the tyre pressures on his car, the Appellant, who is of Somali descent, entered the kiosk and asked the Respondent's employee, Amjid Khan, if it was possible to print off some documents which were stored on a USB stick which the Appellant was carrying. Mr Khan responded in abusive fashion, including racist language.
In addition to Khan, there were two other employees present who appear to have joined in the abuse of the Appellant, but who, on the judge's finding, were not involved in the subsequent violence.
After being abused the Appellant left the kiosk and walked to his vehicle. He was immediately followed by Khan, who opened the front passenger door and partly entered the vehicle. He shouted violent abuse at the Appellant, who told him to get out of his car. At this point the Appellant was punched to the head by Khan. Then when he got out of his car to close the passenger door, he was again attacked by Khan, who punched him twice to the head. Khan then leapt on the Appellant and subjected him to a serious attack involving punches and kicks while the Appellant was curled up on the petrol station forecourt.
The judge found that the Appellant was in no way at fault and had not behaved offensively or aggressively at any stage. He described the attack as "brutal and unprovoked".
The judge found that the assault took place at a time when Khan was being encouraged to go back inside the kiosk by his supervisor, who had earlier told him not to follow the Appellant out of the premises. Khan had made a positive decision to leave his kiosk and to follow the Appellant.
The judge found that for "no good or apparent reason" Mr Khan had decided to follow the Appellant from the kiosk and carry out his attack. He said that Mr Khan's actions appear to have taken place purely for reasons of his own.
Vicarious Liability
The issue of vicarious liability for the assault was squarely before the judge, and his judgment shows that he had been taken to a large number of authorities in this area of the law. Having considered those authorities in detail in the course of his judgment, the Recorder held that there was no vicarious liability in this case so as to make the Respondent liable for what Mr Khan had done.
A claim based in negligence on the basis of a breach of duty adequately to train Mr Khan also failed. That is not the subject of an appeal. In the circumstances the Recorder dismissed the Appellant's claim. In so doing he did not therefore need to consider the Appellant's claim for damages for personal injury and consequential losses arising from the assault. Those allege a head injury causing epilepsy; psychological injury; and soft tissue injuries to the upper limbs and trunk.
In addition, it is asserted that the Appellant has been restricted in his work since the incident and may suffer ongoing loss of income and/or prejudice in the labour market. There was also a claim for aggravated damages.
The judge began his consideration of vicarious liability by correctly identifying a two stage test: firstly, consideration of the relationship between the primary wrongdoer and the person alleged to be liable and whether that relationship is capable of giving rise to vicarious liability. There is no difficulty for the applicant in satisfying this first stage as the relationship between Khan and the Respondent is that of employer to employee.
In the course of his judgment, the Recorder identified Mr Khan's job as that of an assistant in the kiosk. The judge said:
"His duty was simply not to keep public order in the sense of a doorman, but to ensure that the shop was in good running order and that petrol pumps were in good running order, to assist people if at all possible, but no more than that."
The judge also commented that Khan's duties would obviously include interaction with customers and found that he had specific instructions and training not to confront in any way customers who were abusive and/or angry (which this Appellant was not).
The second stage which forms the focus of this appeal, relates to whether there is a sufficiently close connection between the wrongdoing, the assaults in this case, and the employment so that it would be fair and just to hold the employers vicariously liable. It was common ground that this was the correct test, arising from the decisions in Lister v Hesley Hall Limited [2002] 1 AC 215 and Dubai Aluminium Co Limited v Salaam [2003] 2 AC 366. This test has been adopted in a series of subsequent cases cited to this court.
It was this latter limb of the two stage test which the judge held the Appellant had failed to satisfy. Having concluded that for no good or apparent reason Mr Khan had left the premises and attacked the Appellant, the judge noted that although the scope of Mr Khan's employment included interaction with customers, it was clear that specific instructions from an employer to an employee not to do something unlawful would be insufficient in itself to avoid vicarious liability. He made his finding on the basis that Mr Khan's duties as an employee were in the terms summarised at paragraphs 14 and 15 above. The mere fact that Khan was an employee, that the assault happened on the employer's premises, and that he was required to interact with customers in the course of his duties did not suffice to bring this case within the necessary close connection in relation to employment so as to attract vicarious liability on the part of the Respondent.
The judge said that he came to this conclusion even after taking a broad view of the nature of the employment and what was reasonably incidental to the employee's duties. The judge said he was reinforced in his view by the analysis of Warren v Henlys Limited [1948] 2 All ER 935 by Lord Millett at paragraph 80 in Lister, where his Lordship concluded that notwithstanding criticism of that decision, the better view may be that the employer was not liable because it was no part of the duties of the pump attendant who had assaulted a customer to keep order. The judge found that his own findings as to Mr Khan's duties were in a parallel position, and concluded that Mr Khan's "actions appear to have taken place purely for reasons of his own and beyond the scope of his employment".
The Appellant's Case
The Appellant argues that the judge's conclusion, even on the facts as found, was wrong. Mr Ohringer argued that in modern times an individual who goes into a shop and interacts with a sales assistant and who suffers an assault in the course of a confrontation should be able to make the sales assistant's employer vicariously liable. The assistant should be regarded as wearing the badge of the employer and representing its brand standards. He or she is in a customer facing role and likely to have to respond to a variety of enquiries and approaches, some of which may well be provocative or difficult.
Taking a broad approach to the nature of Khan's employment, it could be viewed as a situation in which friction was not unusual so that there would be no improper extension of vicarious liability to this situation. The attack in this case did not represent some incidental or random assault, but rather arose out of the interaction between Mr Khan and the Appellant, and so was clearly committed within the parameters of Khan's duties.
In the circumstances it would be entirely fair and just for the Appellant to have a remedy against the employer. So to hold would act as a deterrent to others and in addition, the employer rather than the individual employee would be likely to have insurance as a normal overhead in the carrying on of his business. The continuum of activity between the initial interaction involving Mr Khan and the...
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