Bryan Patterson-Whitaker considers the related judgments of Cox v MoJ and Mohamud v WM Morrison Supermarkets Plc. Despite the helpful guidance provided by the Court, the scope of vicarious liability remains inevitably imprecise and uncertain.
Cox v MoJ
Mrs Cox worked as a catering manager at HMP Swansea and was in charge of a team which included both inmates and civilians. In the course of that work one of the prisoners accidentally dropped a 25kg bag of rice causing her personal injury. The question for the Court therefore concerned the sort of relationship which has to exist between an individual tortfeasor and a Defendant before the Defendant can be made liable for his conduct.
Referring approvingly to the criteria in Various Claimants v Catholic Child Welfare Society  UKSC 56, Lord Reed (with whom the other Justices unanimously agreed) considered that the prisoner was integrated into the operation of the prison as the activity assigned to him furthered the aims of the prison service and was an integral part of its activities. The relationship between the MoJ and the prisoner was therefore ‘sufficiently akin to employment’ such as to fix the Ministry with liability.
In the course of his judgment, Lord Reed explained that the five factors in Catholic Child Welfare Society were not equally significant and provided guidance on the weight to be attached to each. Both (i) the likelihood of a Defendant having the means to compensate the victim and (v) the tortfeasor being under the control of the Defendant were said to be of lesser importance. The primary focus should instead be on whether (ii) the tort has been committed as a result of activity being taken by the employee on behalf of the employer, (iii) the employee’s activity is likely to be part of the business activity of the employer and (iv) the employer, by employing the employee to carry on the activity has created the risk of the tort committed by the employee.
Whilst acknowledging that vicarious liability extended beyond the mere employer-employee relationship, his Lordship nevertheless made clear that it was ‘not to the extent of imposing such liability where a tortfeasor’s activities are entirely attributable to the conduct of a recognisably independent business of his own or a third party’.
Mohamud v WM Morrison Supermarkets PLC
In Mohamud there was no question as to whether the relationship test was met; the tortfeasor was an employee of the Defendant company. Instead, the question concerned whether there was a sufficient connection between the wrongdoer’s employment and his conduct towards the Claimant (an assault) to make the Defendant liable.
The Claimant had attended one of the Defendant’s petrol stations and enquired about the possibility of some documents being printed out from a USB stick. Having been refused, sworn at and racially abused he left the pay kiosk but was followed back across the forecourt by the Defendant’s employee. What followed was a serious, yet seemingly unprovoked, attack.
Following an exhaustive review of the authorities, Lord Toulson endorsed the ‘close connection test’ set out in Lister v Hesley Hall  UKHL 22. Specifically, the question was always ‘whether the employee’s tort is so closely connected with his employment that it would be just to hold the employer liable’. In addressing this, his Lordship set out two matters that must always be considered. The first question is what functions or ‘field of activities’ had been entrusted to the employee; that question must be addressed broadly. The second is whether there is 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.
On the facts of Mohamud, the Court unanimously allowed the claim. Lord Toulson referred to the fact that in answering the Claimant’s request and ordering him to leave, his conduct fell within the ‘field of activities’ assigned to him. Thereafter was an unbroken sequence of events. It would not be right to regard the wrongdoer as ‘having metaphorically taken off his uniform’ when electing to follow the Claimant and press his point further through a physical assault.
A degree of helpful guidance has been provided in both Cox and Mohamud but the Court in both cases acknowledged that this area of law is inevitably imprecise and uncertain. The concept of “social justice” is inherently difficulty to pin down and its application is likely to vary case by case, judge by judge. If there is a trend though, it certainly does not favour the Defendant ‘employer’.