The doctrine of vicarious liability, at its heart, imposes a legal duty upon the employer of an offending party to compensate the victim of that party’s actions. The justifications for the doctrine are numerous (and well-rehearsed to just about any tort law student) but understandably, transferring the burden of reparations from a ‘guilty’ party to an ‘innocent’ one is subject to a set of rules and guidelines, nearly all of which are exclusively for the courts to determine. This explains, then, why UK courts, including the Supreme Court, have seen a great number of claims recently with vicarious liability at their heart. As of 24 July 2014, the UKSC granted permission to appeal for yet another vicarious liability case; Mohamud v WM Morrison Supermarkets Plc  EWCA Civ 116, decided in the Court of Appeal earlier this year.
Vicarious liability: principles
Vicarious liability requires proof of two things; firstly, that there is a relationship between the person committing the damage (the employee) and their employer. This is traditionally expressed as a strict ’employer/employee’ relationship and nothing less would suffice, but recent case developments (JGE v The Portsmouth Roman Catholic Diocesan Trust  EWCA Civ 938; Catholic Child Welfare Society v Various  UKSC 56) have widened that to include a relationship which, even if not strictly one of an employer and an employee, is ‘akin to employment’. In Mohamud, this is not so big an issue, as shown below. The relationship between the defendant and his employer is clear – he is employed by Morrison’s and so this facet of liability is easily satisfied.
The real issue here is with the second requirement – not only does the offending action have to be committed by an employer, but it must be committed within the scope of their course of employment. An employee will not be liable for each and every action committed by their employee, just those which are sufficiently connected with their job. This is sensible enough, but again, the changing nature of vicarious liability has widened this aspect, too. It was once thought, for example, that an intentional tort (such as assault and battery) could never be within the ‘course of employment’ of an employee as strictly no worker is hired to commit an intentional battery. This was largely thanks to the influential “Salmond test”, highlighting authorisation as the key factor, which prior to 2001 was the primary source material when determining the ‘course of employment’.
This is no longer so clear-cut, however, largely thanks to the reformulation of vicarious liability in the House of Lords in Lister v Hesley Hall  UKHL 22. The course of employment criteria is now more readily determined by assessing whether there is a “close connection” between an intentional wrongdoing and the work the employee is instructed to do. This test allowed the employer in Lister, for example, to be held liable for abuse carried out in his care home – he had not authorised the abuse in any way, but the scope of the employee’s duties – primarily looking after children – were closely connected enough with the abuse carried out. It was reasonable, in that case, to impose liability for the intentional wrongdoing.
Applying the law: Mohamud v Morrison at the Court of Appeal
And so to the case at hand. The facts are relatively simple; a supermarket attendant, an employee of Morrison’s, violently assaulted the claimant, Mohamud, during an altercation which occurred during a visit to the aforementioned supermarket. The claimant then sought to sue Morrison’s for damages under the doctrine of vicarious liability. It seems fair that someone who is assaulted in a supermarket should seek damages from that supermarket. Except that there remained the hurdle of proving that the assault which was carried out was closely connected enough to the attendant’s course of employment that it would be reasonable to place liability in the hands of the employer, Morrison’s, instead.
Traditionally, case law has fallen on the side of the employer in cases such as these. The classic example is Warren v Henlys Ltd  2 All ER 935, a case with facts very similar to the one at hand. Here, a petrol station attendant got into a fight with a customer and committed a battery against him. The court held that the employer was not liable because the battery was not within the course of his duty. The case was approved and applied by the court of first instance in Mohamud’s case. So what is the problem? Firstly, the case was decided in 1948, and was heavily reliant on the old “Salmond test”, much stricter than the above test in Lister. There is also the factual difference between a battery committed by a petrol station owner and one committed by a shop attendant. Case law since Warren was decided has also occasionally fallen the other way. The Court of Appeal in Mattis v Pollock  EWCA Civ 887, for example, decided that a bouncer employed by a nightclub was, somewhat remarkably, acting within the course of his duty when he went home from his station, retrieved a knife and stabbed the victim who had been causing him grief earlier that night. The CA here heavily relied on the Lister formulation in making its decision, along with the particularly interpersonal relationship a bouncer would have with customers. Is the situation in Mohamud more analogous with Warren or Mattis?
The Court of Appeal in Mohamud, despite the reformulation of the law post-Lister, and approving the decision of the trial court, found that there was no sufficient connection between the intentional act of battery and the course of employment he undertook. It rejected the assertion of Mohamud that, much like in Mattis v Pollock, a job as a supermarket attendant involved a strong element of interaction with customers, and therefore provided an opportunity for the tort to be committed. This, it was asserted, was enough to give rise to vicarious liability. The Court disagreed. Treacy LJ, giving the leading judgment, reinforced the fact that even though this area of the law had widened, it had still expressly retained the need for a ‘close connection’ between the employee’s job and the acts committed rather than just a simple link between them. Providing the setting for the acts to take place, or presenting the employee with the mere opportunity to commit the battery, was not enough. He said (quoting Lord Millett in Lister):
“Mere opportunity to commit the wrong would not be sufficient. The employer would only be liable if the risk was one which experience shows is inherent in the nature of the business.”
Something in the employee’s job role must have been linked with the battery – much like in Mattis v Pollock where a violent attack was connected to an intimidating role as a club bouncer, but not so in the case of a supermarket attendant. Treacy LJ continued, regarding cases such as Mattis:
“All of those cases involved a finding of liability in situations where the employee was given duties involving the clear possibility of confrontation… they are to be contrasted with the current case… [the appellant’s] instructions were not to engage in any form of confrontation.”
Based on this, the judge found that there was no sufficient connection, and the appellant was unsuccessful in proving vicarious liability, leaving him without his desired remedy.
The case in the Supreme Court
So was the Court of Appeal correct? The fact the case’s appeal to the Supreme Court has been allowed in the first place demonstrates that there is at least a chance it has erred. Precedent-wise, however, it seems consistent with all the (seemingly conflicting) relevant authorities. Treacy LJ’s judgment is even-handed, clear and well thought out, and it is difficult to see where the Supreme Court could fault the approach taken, even if it disagrees with the conclusion overall. The Court will have to grapple with the same issues as the CA here; how far vicarious liability should stretch post-Lister (bearing in mind its two most recent decisions – Catholic Child and Woodland – stretched the boundaries of vicarious liability in regards to the employer/employee relationship and which duties are non-delegable, respectively) and exactly how to balance the rights of the two ‘innocent’ parties; the employer and the victim. The CA seems to have applied the law correctly as it stands, but alas Supreme Court has an opportune moment to stretch the ‘course of employment’ further if it chooses to do so. Before reaching any stark conclusions, however, Lord Neuberger’s comments in Maga v Birmingham Roman Catholic Church  EWCA Civ 256 (quoted by Treacy LJ in this case) should be remembered:
“I accept that the court should not be too ready to impose vicarious liability on a defendant. It is, after all, a type of liability for tort which involves no fault on the part of the defendant, and for that reason alone its application should be reasonably circumscribed.”
Whatever steps the Supreme Court takes to provide justice for victims, a set of clear and consistently-applied criteria is absolutely necessary for justice to happen. Lord Hope’s commentary here is apt:
“One must hope that the search for clearly defined criteria… is not abandoned simply in order to meet the need for a solution on a case by case basis. The fact that vicarious liability is a principle of strict liability places a special responsibility on the judges, as the law develops, to see that this does not happen.”
If the Supreme Court does allow the battery in this case to fall into a recognised course of employment, it must do so carefully to heed Lord Hope’s warning so as not to render meaningless the essential principles behind vicarious liability which the courts have spent so long trying to establish coherently.