Vicarious liability and the “close connection” test

This piece is the second of two dealing with the recent Supreme Court decisions in Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets. This piece will consider the judgment in Mohamud’s case.

The leading judgment in Mohamud’s case was given by Lord Toulson, with whom the other four justices agreed. Lord Dyson gave a short concurring judgment. Mohamud’s case deals with the second stage of the vicarious liability inquiry – what is the connection between the employee’s employment and the action for which the claimant seeks to make the employer liable?

Mr Mohamud was on a car journey from Birmingham to London. He stopped at the petrol station attached to the Morrison’s Supermarket in Small Heath, Birmingham. He asked Mr Khan, an assistant serving behind the counter, whether he could print some documents from a USB stick. Mr Khan replied that he could not, and followed up with a volley of foul-mouthed and racist abuse towards Mr Mohamud. Mr Mohamud left to return to his car. He was followed by Mr Khan, who warned him not to return to the supermarket and then subjected him to a serious assault involving several punches and kicks.

Mr Mohamud sought damages from WM Morrison Supermarkets, Mr Khan’s employer, in the Birmingham County Court. The judge found that there was not a sufficiently close connection between Mr Khan’s employment and his actions in assaulting Mr Mohamud for the supermarket to be vicariously liable for Mr Khan’s assault, and dismissed Mr Mohamud’s claim. This was because Mr Khan’s job was to serve customers at the counter. Mr Khan’s decision to follow Mr Mohamud to the car therefore broke the connection between his employment and his actions. The Court of Appeal agreed. Mr Mohamud appealed to the Supreme Court. His lawyers argued that the “close connection” test should be replaced with a test of “representative capacity”. Sadly, before the case could be heard by the Supreme Court, Mr Mohamud died from an illness unrelated to his claim. The Supreme Court case therefore proceeded on behalf of his estate, with his son substituted as the claimant.

Lord Toulson stated that while the “close connection” test may be imprecise, it was undesirable to attempt to lay down a definitive list of criteria for what would amount to a “close connection” because of the almost infinite number of factual scenarios in which questions of vicarious liability arise. He stated that, in the simplest terms, the court has to consider two matters; first, the nature of the employee’s job, and secondly, whether the nature of the job and the wrongful conduct were so closely connected as to make it just to hold the employer liable for the employee’s wrongful conduct.

Lord Toulson (and Lord Dyson, in his short concurring judgment) did not consider that the “close connection” test should be replaced with the “representative capacity” test argued for by Mr Mohamud’s lawyers. However, he did consider that the judge and the Court of Appeal had applied the “close connection” test too narrowly by holding that Mr Khan had broken the connection by following Mr Mohamud to his car. Lord Toulson considered that this was so for two reasons; first, it was an unbroken sequence of events, and secondly, after following Mr Mohamud to his car, but before the attack, Mr Khan had warned Mr Mohamud not to return to the supermarket, i.e. his employer’s premises. He therefore purported to act on his employer’s behalf.

In reaching this decision, Lord Toulson distinguished this case from another case of an assault by a petrol station attendant, Warren v Henlys Ltd. In that case, a customer had an angry confrontation with a petrol station attendant, who accused him of trying to avoid payment. The customer became enraged by the way the attendant spoke to him. After paying for the petrol, he complained to a passing police officer about the attendant’s conduct and persuaded the officer to return to the petrol station with him. After the officer had spoken to the customer and the attendant, the attendant assaulted the customer. The petrol station was held not to be vicariously liable for the attendant’s assault.

Lord Toulson stated that, in Warren’s case, the action of the customer in leaving, speaking to the police officer and then returning had changed the relationship between the customer and the attendant so that there was no longer a close connection between the attendant’s employment and his assault on the customer. In this case, Mr Khan’s verbal abuse of Mr Mohamud at the counter was followed immediately by his following Mr Mohamud to his car, telling him not to return, and then physically assaulting him. The “close connection” was therefore intact.

It is easy to see how the Supreme Court’s decision meets the justice of this case. Mr Mohamud was subjected to a vicious and unprovoked assault by an employee of the supermarket while that employee was at work, and it seems unjust that the supermarket should escape liability simply because the physical assault took place by Mr Mohamud’s car rather than at the counter. What is more problematic is the distinction drawn between this case and Warren’s case. Whilst the customer in Warren’s case did leave the petrol station, he was returning to complain about the attendant’s conduct as an employee and was assaulted for complaining about the attendant’s conduct as an employee. The distinction between the two cases therefore seems very narrow, and may mean that this case is not the definitive statement on “close connection” that some have taken it to be.