Litigation: Vicarious liability – where do we stand now?

Two recent and long-awaited decisions from the Supreme Court have provided guidance on the pertinent factors to be taken into account when considering whether vicarious liability (the doctrine providing that one party can be held liable for the actions or omissions of another) may be imposed.

Vicarious liability is most commonly encountered in the employee/employer relationship whereby an employer may be held legally responsible for the actions of their employees if it can be demonstrated that those actions took place in the normal course of their employment.

The first of these two landmark decisions is Cox v Ministry of Justice [2016] UKSC 10 which has effectively extended the remit of this principle by ruling that a party can be found vicariously liable for the acts of another even in situations where there is no contract of employment between the wrongdoer and the person(s)/body held liable.

In this case, the Ministry of Justice, on behalf of the prison service, was held vicariously liable for the negligent act of a prisoner undertaking paid work in the prison kitchen. The prisoner, whilst working in the kitchen, dropped a 25kg bag of rice on to the claimant, who was working as the catering manager at the prison, resulting in serious injuries. The defender argued that they could not be vicariously liable as the relationship between the prison service and inmates was fundamentally different to the relationship between an employer and its employees.

The Supreme Court held that, by assigning certain responsibilities to the prisoner, the defender created a risk that this situation might arise. It also stated that the fact that the aims of the prison service were not commercially motivated, and that they did not derive a profit from the prisoner’s activities, was no bar to imposing vicarious liability.

This case was heard alongside Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, which considered the ‘close connection’ test outlined in the case of Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 A.C. 215.

In the Mohamud case, the claimant appealed a decision that the respondent supermarket was not vicariously liable for an assault perpetrated by one of its employees against the claimant. The customer had been assaulted by the kiosk attendant in the forecourt of a supermarket petrol station. It was reported that the attendant had used racist language about the claimant before punching and kicking him.

Initially, it was held that there was not a sufficiently close connection between the assault and the employee’s responsibilities under his employment for the defender to be held vicariously liable.

In reaching its decision, finding in favour of the claimant, the Supreme Court considered (a) what functions had been entrusted by the employer to the employee (which had to be addressed broadly); and (b) whether there was sufficient connection between the employee's wrongful conduct and the position in which he was employed to make it right for the employer to be fixed with vicarious liability.

The Supreme Court held that the employee in this instance had been employed to serve customers and, notwithstanding the fact that his actions were a gross abuse of that position, they were carried out in connection with the business in which he was employed, and so his employers were held to be vicariously liable.

These two decisions have sparked much debate within the legal world as, on the face of it, they seem to considerably extend the scope and application of the principle of vicarious liability. It will be interesting to see what longer-term effects these decisions will have on actions for damages.