Mohamud v WM Morrison Supermarkets plc: SC 2 Mar 2016

The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first instance and at the court of appeal.
Held: The appeal was allowed.
Lord Toulson said: ‘In the simplest terms, the court has to consider two matters. The first question is what functions or ‘field of activities’ have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. As has been emphasised in several cases, this question must be addressed broadly . . Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice which goes back to Holt. To try to measure the closeness of connection, as it were, on a scale of 1 to 10, would be a forlorn exercise and, what is more, it would miss the point. The cases in which the necessary connection has been found for Holt’s principle to be applied are cases in which the employee used or misused the position entrusted to him in a way which injured the third party.’
And, applying the Bazley case: ‘ (a); an opportunity to assault was afforded. That in itself is not sufficient, and in this instance it did not involve an abuse of power. (b); the assault did not and could not have furthered the employer’s aims. The situation is different from cases discussed earlier in this judgment. (c); the assault was related to a polite approach and request by the Appellant. The situation was one in which friction, confrontation or intimacy was not, in my judgment, inherent. (d); no relevant power was conferred on the employee as regards to the customer. (e); there was no special vulnerability of the applicant in the way that might arise, for example, where a child is in the care of a warden at a home’
Lord Dyson said: ‘The close connection test has now been repeatedly applied by our courts for some 13 years. In my view, it should only be abrogated or refined if a demonstrably better test can be devised. Far from being demonstrably better, the proposed new test is hopelessly vague. What does ‘representative capacity’ mean in this context? And by what criteria is the court to determine the circumstances in which the reasonable observer would consider the employee to be acting in a representative capacity? I do not see how this test is more precise than the close connection test or how it better reflects modern views of justice. The attraction of the close connection test is that it is firmly rooted in justice. It asks whether the employee’s tort is so closely connected with his employment as to make it just to hold the employer liable.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Dyson, Lord Reed, Lord Toulson
[2016] WLR(D) 109, [2016] UKSC 11, [2016] ICR 485, [2017] 1 All ER 15, [2016] PIQR P11, [2016] 2 WLR 821, [2016] AC 677, [2016] IRLR 362, UKSC 2014/0087
Bailii Summary, Bailii, WLRD, SC, SC Summary
England and Wales
CitedKeppel Bus Co v Ahmad PC 20-May-1974
Singapore – The respondent, the plaintiff was a passenger in a bus belonging to the appellants. They employed as conductor of the bus the second defendant. The conductor treated an elderly lady passenger in a high-handed and rude fashion. The . .
CitedVasey v Surrey Free Inns Plc CA 5-May-1995
The claimant had been refused entry to the nightclub and in a temper he had kicked the door and damaged glass in it. Employees of the defendants’ nightclub, two employed as doormen, pursued the group of whom the claimant was one, to a public car . .
AppliedBazley v Curry 17-Jun-1999
(Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be . .
CitedFennelly v Connex South Eastern Ltd CA 11-Dec-2000
A ticket inspector, following an altercation with a passenger during which strong words were exchanged, had held the passenger in a headlock. The court had found this to be within the course of his employment so as to make the employer vicariously . .
CitedBoson v Sandford and Others 1629
A shipper of goods sued the ship owner for damage caused by the negligence of the master. Eyre J held that there was no difference between a land carrier and a water carrier, and therefore the owners were under a special liability as carriers for . .
CitedMattis v Pollock (T/A Flamingo’s Nightclub) QBD 24-Oct-2002
The claimant sought damages after being assaulted by a doorman employed by the defendant.
Held: The responsibility of the nightclub owner for the actions of his aggressive doorman was not extinguished by the separation in time and place from . .
CitedHern v Nichols 1700
The plaintiff brought an action on the case for deceit, alleging that he bought several parcels of silk under a fraudulent representation by the defendant’s factor that it was another kind of silk. The factor was operating overseas and there was no . .
CitedSir Robert Wayland’s Case 1795
Holt CJ said: ‘the master at his peril ought to take care what servant he employs; and it is more reasonable that he should suffer for the cheats of his servant than strangers and tradesmen’. . .
At CAMohamud v Wm Morrison Supermarkets Plc CA 13-Feb-2014
The court was asked whether the Respondent supermarket was vicariously liable for an assault committed by an employee upon the Appellant. The claimant had been assaulted and injured by the respondent’s employee whilst at a service station. He now . .
CitedVaickuviene and Others v J Sainsbury Plc SCS 11-Jul-2013
A Mr Romasov was killed by a fellow employee in a Sainsbury’s supermarket; this fellow employee had, two days earlier, told Mr Romasov that he did not like immigrants and that he should go back to his own country. There was an argument when the . .
CitedMiddleton v Fowler and Others 1795
For the master to be liable the servant’s act had to be within the area of the authority given to him. . .
CitedBarwick v English Joint Stock Bank 1867
When considering the vicarious liability of a master for the acts of his servant, no sensible distinction could be drawn between the case of fraud and any other wrong. The general rule was that: ‘the master is answerable for every such wrong of the . .
CitedMackay and Another v The Commercial Bank of New Brunswick and Others PC 14-Mar-1874
(New Brunswick) It may be generally assumed that, in mercantile transactions, principals do not authorise their agents to act fraudulently, frauds are beyond the agent’s authority in the narrowest sense of which the expression admits; but that so . .
CitedHouldsworth v City of Glasgow Bank HL 1880
‘an innocent principal was civilly responsible for the fraud of his authorised agent, acting within his authority, to the same extent as if it was his own fraud’. . .
CitedLloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
CitedCentral Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925
A night watchman at a garage drove off in a car left there for his own purposes and damaged it.
Held: The garage had delegated to their employee the duty of keeping the car safely secured in the garage and they were liable to the owners of the . .
CitedWarren v Henlys Ltd 1948
A garage attendant, as an act of personal vengeance, assaulted a customer of the garage. A customer at a petrol station was abused by the attendant as he drove off without paying. The customer then paid. He complained to the police officer he found . .
CitedPetterson v Royal Oak Hotel Ltd 1948
A barman had refused to serve a drunken customer with more alcohol. As the customer was on his way out of the premises, he threw a glass at the barman which broke in pieces at his feet. The barman picked up a piece of the broken glass and threw it . .
CitedDeatons Pty Ltd v Flew 12-Dec-1949
(High Court of Australia). A barmaid employed by the appellant threw first the beer from a glass, and then the glass in a customer’s face causing injury. The company appealed a find of vicarious liability.
Held: The act of the barmaid was not . .
CitedKeppel Bus Co v Ahmad PC 20-May-1974
Singapore – The respondent, the plaintiff was a passenger in a bus belonging to the appellants. They employed as conductor of the bus the second defendant. The conductor treated an elderly lady passenger in a high-handed and rude fashion. The . .
CitedRose v Plenty CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the . .
CitedBazley v Curry 17-Jun-1999
(Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be . .
ConfirmedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
CitedBernard v The Attorney General of Jamaica PC 7-Oct-2004
PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
CitedBrown v Robinson and Sentry PC 14-Dec-2004
(Jamaica) The deceased claimant had been shot by a sentry employed by the respondent company. His estate appealed a finding that the sentry was not acting in the course of his employment.
Held: Older authorities had now been replaced by recent . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
CitedGravil v Carroll and Another CA 18-Jun-2008
The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed from a finding that they were not vicariously liable. The defendant player’s . .
CitedWeddall v Barchester Healthcare Ltd CA 24-Jan-2012
Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
Held: Appeals were dismissed and allowed according to their facts.
In one case, one employee . .
CitedThe Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .

Cited by:
CitedChell v Tarmac Cement and Lime Ltd CA 12-Jan-2022
Explosive pellet not part of employee’s role.
The claimant worked on a site operated by the respondent. One of the respondent’s employees exploded two pellet targets injuring the claimant’s hearing. He asserted vicarious liability in the respondent. There had been tensions between the claimant . .

Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Personal Injury

Updated: 14 January 2022; Ref: scu.560622