This article concerns itself with the recent Supreme Court decision in the case of Mohamud v WM Morrisons Plc in respect of vicarious liability.

In order for an employer to be held vicariously liable for the actions of their employee there are two tests which must be satisfied. These two requirements are firstly that there must be a relationship between the Defendant and the wrongdoer and secondly, that there must be a connection between that relationship and the act of the wrongdoer.

A separate case of Cox v Ministry of Justice , which was also heard by the Supreme Court , has recently ruled on the first requirement , the relationship between the Defendant and the wrongdoer.

The case that is the subject of this article however, Mohamud v WM Morrison Supermarkets Plc, concerned the second test for vicarious liability, the connection between the Defendant and wrongdoers relationship to the actual act which caused injury.

The circumstances in this case are that a Mr Mohamud (who had sadly passed away prior to the Supreme Court’s judgment) was a visitor to a petrol station owned by the Defendant. At this site the Defendant employed a Mr Khan (this employment relationship was obviously enough to satisfy the first test of for vicarious liability). Mr Mohamud entered the petrol station and asked whether it would be possible for him to print off some documents from a USB stick. Following this request Mr Khan proceeded to use foul and abusive language after which Mr Mohamud returned to his car. Despite his supervisor instructing him not to, Mr Khan followed Mr Mohamud out onto the forecourt and threatened Mr Mohamud telling him not to come back before seriously assaulting Mr Mohamud, this assault inevitably causing injury.

Mr Khan was employed by the Defendant, with his duties being to ensure the petrol pumps and kiosk ran well together with serving the customers. At the initial trial the judge was sympathetic to Mr Mohamud, however, it was held that although Mr Khan’s role did involve interaction with customers this interaction only extended to serving and helping them. Mr Khan’s act of wrongdoing was therefore considered to be so far removed from the duties he was employed to carry out, a sufficiently close relationship between the employment connection and the actual act of wrongdoing, could not be found. The Defendant therefore could not be held vicariously liable for Mr Khan’s actions. Another reason given for reaching this conclusion was that Mr Khan made his own decision to exit the counter and follow Mr Mohamud.

The case was then appealed to the Court of Appeal by Mr Mohamud with the Court of Appeal upholding the initial trial judge’s judgment.

The case was then appealed to the Supreme court on the grounds that in place of the test as to whether there is a sufficiently close connection between the Defendant and wrongdoers act, a new, broader test of ‘representative capacity’ should be laid down. This test would involve assessment as to whether a reasonable observer would consider the employee to be acting as a representative of the employer at the time of carrying out the act of wrongdoing. The suggestion was that the ‘a company should be liable for the acts of its human embodiment’. Having assessed the arguments in the case Lord Toulson in his judgment, with whom Lord Neuberger, Lady Hale, Lord Reed and Lord Dyson agreed, stated that from Mr Mohamud making the initial request to print off some documents and Mr Khan responding in a foul mouthed way there was an unbroken chain of events.

At the initial trial it was held that the connection between Mr Khan and his employer ended when Mr Khan left from behind the counter and went out onto the forecourt. Lord Toulson disagreed for two reasons stating firstly that he did not consider it right to regard Mr Khan as ‘having metaphorically taken off his uniform the moment he stepped from behind the counter’. Secondly when Mr Khan reached Mr Mohamud’s car he told Mr Mohamud to never come back to the petrol station. Lord Toulson asserted that this was not something personal between them but was in fact an order to keep away from his employer’s premises, an order which was then ‘reinforced by violence’.

The appeal was allowed and therefore a new precedent has been set in the test of ‘representative capacity’ replacing the test of ‘close connection’. This broader test widens the scope for a Claimant to successfully show that an employer should be held vicariously liable for tortious acts of their employees.

By Nick Cowley