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Released On 2nd Mar 2016

The Supreme Court extends Vicarious Liability 

Two recent decisions of the Supreme Court are a forewarning for employers where their employees commit a wrongdoing at work.  Even more crucially, vicarious liability can now extend to situations where there is no contract of employment.

When is an organisation liable for the negligence or criminal acts of its employees or members? This is an important question because frequently a survivor of sexual abuse will look to recover compensation from the perpetrator’s employer, such as a school; or if the perpetrator was part of an organisation such as the Church or Scouts, that organisation responsible for the wrongdoer.  Schools, churches and the Scouts should hold insurance and are therefore able to pay compensation if they are found to be liable for the wrongdoer.  The legal principle of making an employer or organisation liable for the abuse committed by its staff is known as vicarious liability.

On 2 March 2016 the Supreme Court handed down two important Judgments that clarify the test of vicarious liability.

In Mohamud v Morrison Supermarkets plc [2016] UKSC11 the Supreme Court had to decide whether Morrisons could be vicariously liable for the actions of its employee, a Mr Khan, who physically attacked a customer.

In Cox v Ministry of Justice [2016] UKSC10 the Supreme Court had to decide what sort of relationship has to exist between a prisoner and the prison service (and by extension the Ministry of Justice or MOJ) to be held vicariously liable for the prisoners negligence.

The Mohamud Case

Mr Mohamud pulled in to a garage operated by Morrison Supermarkets.  He wanted to print some documents from a memory stick and asked a member of staff if they could help.  Mr Khan who was employed by Morrison’s to operate the kiosk desk, verbally abused him using racist and threatening language. Mr Mohamud left but was followed onto the forecourt by Mr Khan who ordered Mr Mohamud to leave.  Mr Khan then then launched a savage and serious attack upon Mr Mohamud.

Mr Mohamud brought civil proceedings against Morrisons on the basis that it was vicariously liable for the actions of their employee Mr Khan.

The Supreme Court held that the appropriate legal test to apply was the “close connection test”. In applying the close connection test the court has to consider, firstly, what function or field of activities has been entrusted by the employer to the employee.  In short what is the nature of the employee’s job?  The Supreme Court said this has to be viewed broadly.  Secondly, the Supreme Court had to decide whether there was a sufficient connection between the position in which Mr Khan was employed and his wrongful conduct so as to make it right for Morrisons to be held liable.

The Supreme Court noted that Mr Khan’s job was to attend customers and respond to their enquiries.  Therefore interacting with customers was within the field of activities assigned to him by Morrisons.  When Mr Khan followed Mr Mohamud to the forecourt and told him to leave the garage Mr Khan was giving an order on the half of Morrisons.  In giving this order Mr Khan was purporting to act on behalf of Morrisons.

The Supreme Court unanimously decided that Morrison Supermarkets were vicariously liable for the actions of its employee Mr Khan.   

The Cox Case

Mrs Cox worked as a catering manager at a prison operated by the Ministry of Justice (MOJ). Mrs Cox was in charge of a number of prisoners who had been assigned the duty of assisting her in the preparation of prison meals.  One of the prisoners accidentally dropped a sack of rice on Mrs Cox’s back causing her injury.  The prisoner had no assets to compensate her Mrs Cox so she sued the MOJ. Initially Mrs Cox brought her claim in the Swansea County Court and lost on the basis the prison service and the prisoner who dropped the rice was not akin to that of an employer and employee.  However, Mrs Cox appealed to the Court of Appeal who reversed the decision and found the prison service were liable for the prisoner’s negligence.

The MOJ appealed to the Supreme Court and the question for the Lord Justices was to consider whether the MOJ were vicariously liable for someone who was not an employee.

The Supreme Court considered the sort of relationship that existed between the prisoner and the MOJ.  The Supreme Court referred to the earlier case of the “Christian Brothers” in which the Supreme Court had identified five factors in a relationship between the perpetrator and defendant that would make it fair, just and reasonable to impose vicarious liability on a defendant where the perpetrator was not employed by the defendant.

The Supreme Court gave guidance as to the significance of each of the five factors.  The first factor, namely that the defendant is likely to be insured and therefore to have the means to compensate the survivor is not, of itself likely to be in doubt and therefore does not add much to the issue.  The fifth factor, namely that the perpetrator must be under the direct control of the defendant no longer has the significance it was considered to have. The Supreme Court recognised that in modern life it is not realistic to expect an employer to always be able to direct an employee as to how the employee should perform his duties.

The Supreme Court has re-emphasised the importance of the following three factors:-

1.  The abuse has been committed as a result of an activity undertaken by the perpetrator on behalf of the defendant.

2.  The activity is likely to be part of the business activity of the defendant.

3.  The defendant, by engaging the perpetrator, has created the risk of the abuse being committed by the perpetrator.

The Consequences

Importantly the Supreme Court now recognises that vicarious liability can exist outside of an employment relationship.  This will be the case when abuse is perpetrated by someone who carries on his activities at work as an integral part of the defendant’s business and for its benefit and where the abuse is a risk created by the defendant by assigning those activities to the perpetrator.  The Supreme Court said that a wide range of circumstances can satisfy these requirements and the defendant cannot avoid vicarious liability on the basis of erroneous arguments about the employment status of the abuser.

The Supreme Court has also recognised the defendant need not be a commercial organisation and it need not make any profit from the perpetrators activities. This is important as the Church and Scout organisations have previously argued they should not be vicariously liable for the abuse committed by their clergy or Scout masters as the organisations were not engaged in business. The Supreme Court stated that it is sufficient simply that a defendant organisation is carrying on activities in the furtherance of its own interests.

In the Cox case the Supreme Court said that prison kitchens are integrated into the operation of the prison service, and that prisoners assigned to work in the kitchens form an integral part of the activities the prison carries on in the furtherance of (some of) its aims, namely to provide meals for prisoners.  The prison service places these prisoners in a position where there is a risk they may act negligently in carrying out the tasks assigned to them as is recognised by the provision of health and safety training.  Moreover, the prisoners work under the direction of the prison staff. The fact that a prisoner works for nominal or no wages is irrelevant and, as the Supreme Court pointed out working for no or little money actually strengthens the argument for imposing vicarious liability on the prison service.

The Supreme Court stated that where a claimant can show the three criteria as set out in the Christian Brothers case, a Court should readily accept the fairness, justice and reasonableness of imposing vicarious liability.

These two decisions are welcome news for survivors of sexual abuse where their perpetrator is under the control, supervision or employment of an organisation.  The Court's clarification should help survivors of abuse to more easily claim compensation against an employed perpetrator, or one working for an organisation responsible for them.  An employer will now have difficulty denying liability by arguing the perpetrator was on `a frolic of his own’.  They are now are likely to be vicariously liable for their employees unlawful acts committed on duty, even where they do not approve of them.  Now employers and organisations are more likely be held liable for criminal acts, such as sexual abuse, when committed by their staff at work (or a person they are responsible for) even though the wrongdoing was a personal act not directly connected to their employment.   

If you or a family member is a survivor of sexual abuse, this latest ruling may help if the perpetrator was employed or part of an organisation responsible for them.  Please contact us on a free, confidential, no obligation basis for legal help from an abuse specialist solicitor.  Please email us on enquiries@robsonshaw.uk or call us on 01392 345333 at any time to speak to a member of our team.

Tags: sexual abuse, Vicarious Liability