Vicarious liability in tort

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The Supreme Court has given judgment in two cases concerned with Vicarious Liability in Tort.  Previous posts: Vicarious liability for intentional tort (16th January 2012) and Catholic Child Welfare case (21st November 2012).

The cases:

Cox v Ministry of Justice [2016] UKSC 10 was a case brought against the Ministry of Justice by Mrs Cox in respect of injury caused to her by the negligence of a prisoner assigned to work in the prison kitchen.  Whilst the more usual case of vicarious liability involves the responsibility of an employer for the actions of an employee, this form of liability has been applied in other situations.





Cox v Ministry of Justice and see Lord Reed handing down the judgment.

Mohamud v W.H. Morrisons [2016] UKSC 11 was a case brought against the company owning a supermarket and operating a petrol station.  An employee of Morrisons was violent to a customer and the Supreme Court held the company vicariously liable for what their employee had done.

Mohamud v W.H. Morrisons and see Lord Toulson handing down the judgment.

Lord Toulson, having looked at the history of this subject, stated the Present Law at paras 44-46 ...

44.              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; see in particular the passage in Diplock LJ's judgment in Ilkiw v Samuels included in the citation from Rose v Plenty [1963] 1 WLR 991, 1004 at para 38 above, and cited also in Lister by Lord Steyn at para 20, Lord Clyde at para 42, Lord Hobhouse at para 58 and Lord Millett at para 77.

45.              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. Lloyd v Grace, Smith & Co, Peterson and Lister were all cases in which the employee misused his position in a way which injured the claimant, and that is the reason why it was just that the employer who selected him and put him in that position should be held responsible. By contrast, in Warren v Henlys Ltd any misbehaviour by the petrol pump attendant, qua petrol pump attendant, was past history by the time that he assaulted the claimant. The claimant had in the meantime left the scene, and the context in which the assault occurred was that he had returned with the police officer to pursue a complaint against the attendant.

46.              Contrary to the primary submission advanced on the claimant's behalf, I am not persuaded that there is anything wrong with the Lister approach as such. It has been affirmed many times and I do not see that the law would now be improved by a change of vocabulary. Indeed, the more the argument developed, the less clear it became whether the claimant was advocating a different approach as a matter of substance and, if so, what the difference of substance was.

The decisions of the Supreme Court are considered by the UK Human Rights Blog where it is noted that - Mohamud v WM Morrison Supermarkets [2016] UKSC 11 affirms the “close connection” test set out in Lister v Hesley Hall Ltd [2001] UKHL 22 and rejects the formulation of a new test for vicarious liability based on “representative capacity”.

Cox v Ministry of Justice [2016] UKSC 10 extends the sorts of relationships where a defendant can be made vicariously liable for the conduct of an individual and evaluates Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (the ‘Christian Brothers’ case).

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