Mohamud v WM Morrison Supermarkets Plc

Vicarious liability for an employee’s intentional tort requires a relationship capable of giving rise to liability and a sufficiently close connection between the wrongdoing and the employment. The inquiry is broad but fact-sensitive. Mere opportunity, workplace, duty time or customer interaction is insufficient. An additional connection may arise from authority to keep order, furtherance of the employer’s aims, inherent friction or confrontation, power, vulnerability, or a special employment-created risk. These are illustrative rather than exhaustive. A personal, unprovoked assault by a customer-facing employee, unrelated to the employer’s aims and outside the employee’s duties, therefore falls outside the close connection test.

The appellant visited the respondent’s supermarket petrol-station kiosk and asked an employee to print documents from a USB stick. The employee responded abusively, followed the appellant to his vehicle and seriously assaulted him. The Recorder found that the employee acted for purely personal reasons, had limited customer-facing duties and no responsibility for keeping order. The Recorder dismissed the claim, including the vicarious-liability claim. A separate negligence claim based on inadequate training also failed and was not appealed. Permission to appeal was granted only on whether the facts established vicarious liability. The central issue was whether the assault was sufficiently closely connected with the employee’s employment to make the respondent liable.

The appeal was dismissed unanimously.

1. Per Treacy LJ, with Clarke LJ and Arden LJ agreeing, vicarious liability involved a two-stage inquiry. The relationship between the wrongdoer and the alleged defendant had to be capable of giving rise to liability. There then had to be a sufficiently close connection between the wrongdoing and the employment to make liability fair and just. The test arose from Lister v Hesley Hall Limited [2002] 1 AC 215 and Dubai Aluminium Co Limited v Salaam [2003] 2 AC 366.
2. The second stage required close attention to the particular facts, while adopting a broad view of the employment. Being on duty, working on the employer’s premises, having the opportunity to commit the tort, or interacting with a customer was relevant but not conclusive. Some feature beyond mere interaction was required. The approach was consistent with Lister and Weddall v Barchester Healthcare Limited [2012] EWCA Civ 25.
3. Relevant, non-exhaustive indicators included authority or responsibility to keep order, furtherance of the employer’s aims, friction or confrontation inherent in the employment, power over the victim, vulnerability and an additional risk inherent in the business. The cases involving railway inspectors, nightclub doormen, rugby players and factory managers were distinguished because they involved such additional features: Fennelly v Connex South Eastern Limited [2001] IRLR 390, Vasey v Surrey Free Inns Plc [1996] PIQR 373, Mattis v Pollock [2003] 1 WLR 2158, Gravil v Carroll [2008] ICR 1222 and Wallbank v Wallbank Fox Designs Limited [2012] EWCA Civ 25. Bazley v Curry [1999] 174 DLR (4th Ed) 45 supplied useful non-exhaustive factors.
4. Warren v Henlys Limited [1948] 2 All ER 935 remained a relevant authority on the basis explained by Lord Millett in Lister. On the facts, the employee had no authority or responsibility for keeping order, acted for personal reasons, did not further the employer’s aims, and posed no employment-created special risk of this kind of violence. The close connection test was therefore not satisfied. The employer’s customer-facing business and the opportunity for contact did not alter the result.
5. Arden LJ added that keeping order was an example of a close connection, not a prerequisite. She also observed that imposing liability for personal acts of vengeance beyond the employer’s control might not advance the policy of encouraging safer employment practices.

• Court of Appeal (Civil Division) — On appeal from Birmingham Civil Justice Centre, the court unanimously dismissed the appeal on the vicarious-liability issue: [2014] EWCA Civ 116.
• Birmingham Civil Justice Centre — Mr Recorder Khangure QC dismissed the claim on 7 November 2012, finding no vicarious liability for the employee’s assault. The separate inadequate-training negligence claim also failed and was not appealed.