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A Mohamud Wm Morrison Supermarkets plc

Introduction

In the recent Supreme Court decision of Mohamud v WM Morrison Supermarkets plc, Lord Toulson stated that in order to apply the close connection test, the court has to consider the “field of activities” entrusted to the employee, and the existence of a sufficient connection between the position in which employee was employed and his wrongful conduct. The close connection test has been established in common law and it goes to provide the circumstances in which the employer may be held liable for the torts of the employee which are closely connected with the employment. The Muhamad case goes to broaden the scope for application of close connection test by reference to field of activities that may come within the nature of his job.

This essay critically discusses this broadening of the close connection test in the Muhamad case in relation to the principle of vicarious liability and in light of authorities previously decided. This essay argues that the decision may lead to an uncomfortable broadening of the close connection test.

The Broadening of the Close Connection Test in Muhamad

In the Muhamad case, the Supreme Court held that for the purpose of establishing vicarious liability of the employer, consideration must be given to the nature of the job entrusted to the employee and whether the wrongful act of the employee is closely connected with his employment. In terms of establishing vicarious liability on the basis of a connection between the act and the employment, the Muhamad case does not say something new as the ‘close connection’ test has been applied in a number of cases since its first time application in the case of Lister v Hesley Hall Ltd. In that early authority, it was laid down that if there is a sufficient connection between the wrongful conduct of the employee and the employment functions and duties, then the vicarious liability of the employer may be established on the basis of that close connection.

Since Lister, there are a number of cases in which the close connection was applied for establishing vicarious liability and taking it beyond the Salmond test, which requires for the establishment of vicarious liability that either the wrongful act be authorised by the employer, or that the employee performs a lawful and authorised act in a manner that is unauthorised by the employer. The second element of the Salmond test allows imposition of vicarious liability even where the employee is doing something that is authorised by the employer in a way that is unauthorised or even unlawful. This became the basis for the application of the close connection test, which broadened the scope of vicarious liability. This can be illustrated with the help of some authorities on the point.

In Mattis v Pollock, the nightclub employer was held vicariously liable for the injury caused by its doorman to a guest due to an authorised violent act, even when the nightclub owner had not authorised the doorman to hit the guests. However, on the basis that the doorman was authorised to be aggressive for the purpose of keep a check on the guests, therefore, there was close connection between the acts of the doorman and his employment. In Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church, the Church was held vicariously liable for sexual abuse of a boy by one of its priests. Once again, the court applied the close connection test in establishing vicarious liability because the priest was entrusted with care of boys and offering counsel, in which the court saw a close connection with the sexual abuse. In yet another case, the House of Lords held the innocent co-partners in the firm vicariously liable for their partner’s fraudulent behaviour which led to the economic losses for their client. In all of these cases, the close connection test was related to the employment functions of the employee and if there was the foreseeable risk attached to these functions, then the employer could be held vicariously liable.

The brief discussion on previous authorities on close connection test and vicarious liability show that the test has been applied in a variety of cases and in that Muhamad case is not making a new point. However, what is new about this case is that by applying the ‘field of activities’ criteria, the employer is being made vicariously liable even for those actions that are not in the course of employment. In this case, the facts were that the appellant, a customer at the respondent’s petrol station, was assaulted by a sales assistant. The appellant sued the respondent for vicarious liability, which the respondent denied on the ground that the sales assistant was not authorised to take violent action against customers and that the actions of the sales assistant were not even closely related to his employment duties. While this argument was accepted in the County Court and the Court of Appeal, it failed in the Supreme Court, where the court held that as the sales assistant was employed to attend to customers, his contact with the customer came within the ‘field of activities’ assigned to him and therefore the respondent would be vicariously liable through application of the close connection test. This was so even if the conduct was unauthorised so long as the conduct was within the field of activities assigned to him.

The Muhamad case significantly opens up the scope for vicarious liability as compared to previous decisions. Although this case is based on the Lister principle, the decision is a broader application of the close connection test because whereas Lister and the subsequent cases imposed vicarious liability only where the duties and responsibilities of the employees came with a special risk of harm; but Muhamad would impose vicarious liability even when the employee’s functions do not attach a special risk of harm. This broadens the scope of vicarious liability and also creates some grey areas. One area that deserves attention in this respect is how the courts will apply the principle in the subsequent cases, and how far employers will come to be held liable for torts of their employees committed while involved in activities that are not closely connected with their employment. In other words, how far can the ‘field of activities’ of an employee be stretched to allow establishment of vicarious liability of employer.

It may be noted that the close connection test in itself was considered to suffer from a weakness, in that in every case where it is considered, the close connection test is a value judgement. This weakness of the close connection test was also recognised in Dubai Aluminium Co Ltd v Salaam by Lord Nicholls. What this means is that the close connection test is in itself open to interpretation where the courts use value judgement to determine whether the wrongful acts of the employee are closely connected to their employment. Now, with the Muhamad case, the test has further been opened up to interpretation by the use of the ‘field of activities’ criterion to establish the close connection. The facts of the case further complicate the future application of this principle because the facts clearly show that the employee not only followed and assaulted the claimant outside the premises, he also ignored the repeated instructions of his supervisor who asked him to desist from his wrongful conduct. Therefore, there were clear and expressed instructions to the contrary at the point in time. Yet, the employer was held vicariously liable on the ground of the act being within the ‘field of activities’. Therefore, there is a possibility of greater uncertainty in future for the limits of vicarious liability application. Ultimately it will be left to the employers to devise ways in which they can safeguard themselves from liability due to errant employees and a broadly defined concept of vicarious liability in an attempt to internalise the risks of their enterprise.

Conclusion

The Muhamad case presents an uncomfortable principle for future cases, wherein the courts in applying this principle may find themselves holding the employer liable even though the latter may have done everything in his power to prevent the wrongful acts of the employees. The use of the ‘field of activities’ criterion may lead future courts to further widen the scope of vicarious liability.

Table of Cases

  • A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets plc [2016] UKSC 11.
  • Dubai Aluminium v Salaam & Others [2002] UKHL 48.
  • Lister v Hesley Hall Ltd [2001] UKHL 22.
  • Rose v Plenty, [1976] 1 WLR 141.
  • Mattis v Pollock [2003] 1 WLR 2158.
  • Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church (2010) EWCA Civ 256.
  • Bibliography
    Books

  • Bermingham V and Brennan C, Tort Law Directions (Oxford University Press 2016). Lunney M and Oliphant K, Tort Law: Text and Materials (Oxford: Oxford University Press 2013).
  • Journals

  • Dhochartaigh MN, ‘Mohamud v. Wm Morrison Supermarkets PLC’ (2017) 20 Trinity CL Rev. 203.
  • Jonathan L, ‘Vicarious Liability for Assaults after Mohamud v Wm Morrison Supermarkets PLC’ (2017) 11 HKJ Legal Stud. 1.
  • Morgan P, ‘Certainty in vicarious liability: a quest for a chimaera?’ (2016) 75(2) The Cambridge Law Journal 202.
  • Mustafa E, ‘The liability for employers for the conduct of their employees–when does an employee’s conduct fall within the “the course of employment”?’ (2016) 24(7) Human Resource Management International Digest 44.
  • Tan D, ‘Internalising Externalities-An Enterprise Risk Approach to Vicarious Liability in the 21st Century’ (2015) 15 SAcLJ 822.

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