In Mohamud v WM Morrison Supermarkets plc the Court of Appeal has held that an employer was not vicariously liable for an employee’s assault on a customer. There was nothing to show that the attack had a sufficiently close connection with the employment, as required by the House of Lords’ decision in Lister v Hesley Hall Ltd (Brief 686), so as to enable a finding of vicarious liability. The mere fact of contact between a sales assistant and a customer, which is plainly authorised by an employer, is not of itself sufficient to fix the employer with vicarious liability.
M visited WMMS plc’s supermarket and petrol station premises. M, who is of Somali descent, entered the kiosk and asked an employee, K, if it was possible to print off some documents on a USB stick. K responded in an abusive, racist fashion. M left but was followed by K, who subjected him to a serious attack involving punches and kicks. K was encouraged to go back inside the kiosk by his supervisor, who had earlier told him not to follow M. M subsequently brought a claim against WMMS plc, arguing that it was vicariously liable for K’s actions.
A Recorder sitting in the Birmingham Civil Justice Centre dismissed M’s claim, holding that although K had assaulted M, WMMS plc was not vicariously liable for that assault. The employer and employee relationship between K and WMMS plc was capable of giving rise to vicarious liability. However, the requirement in Lister v Hesley Hall Ltd that there must be a sufficiently close connection between the wrongdoing and the employment, so that it would be fair and just to hold the employer vicariously liable, was not met. M appealed against the decision.
Lord Justice Treacy, giving the leading judgment with which the rest of the Court agreed, noted that while the test identified in Lister and later cases is clearly formulated, its application, because of its generality, is less easy. Each case must turn on its own particular facts and will inevitably involve an element of value judgment. However, the authorities from Lister onwards make clear that very careful attention must be paid to the closeness of the connection between the tort of the employee and the duties he is employed to perform, viewed in the round. After examining these authorities, Treacy LJ considered that they showed that the mere fact that the employment provided the opportunity, setting, time and place for the tort to occur is not necessarily sufficient. Some factor or feature going beyond interaction between the employee and the victim is required. The decided cases had examined the question of close connection by reference to factors such as the granting of authority, the furtherance of an employer’s aims, the inherence of friction or confrontation in the employment and the additional risk of the kind of wrong occurring. These different approaches represented different ways of asking and answering the key question as to the closeness of connection and are illustrative of the focus which needs to be brought.
On the basis of the facts found by the judge, both as to the nature of K’s employment and the particular circumstances of the assault, there was no element which could bring M’s case within the close connection test so as to enable a finding of vicarious liability. While Treacy LJ expressed his sympathy for M, he considered that the law is not yet at a stage where the mere fact of contact between a sales assistant and a customer, which is plainly authorised by an employer, is of itself sufficient to fix the employer with vicarious liability. As Lord Neuberger MR (as he then was) stated in the Court of Appeal in Maga v Archbishop of Birmingham (Brief 903), ‘the court should not be too ready to impose vicarious liability on a defendant. It is, after all, a type of liability for tort which involves no fault on the part of the defendant, and for that reason alone its application should be reasonably circumscribed’. The Court therefore dismissed the appeal.