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Supermarket not vicariously liable for assault on customer by employee

In the recent case of Mohamud v WM Morrison Supermarkets Plc [2014] EWCA Civ 116, the Court of Appeal held that an employer will not always be vicariously liable for the actions of its employees and it is important to consider the details of each case.  In this case, WM Morrison Supermarkets Plc (Morrisons) was not liable to a customer who was assaulted by a member of staff.

Facts

Mr Mohamud, who is of Somali descent, visited one of Morrisons' petrol stations.  He went into the kiosk, which was operated as a convenience store, and asked an employee, Mr Khan, if he could print some documents on a USB stick.  Mr Khan was abusive and racist towards Mr Mohamud, who walked out of the kiosk.  Despite his supervisor instructing Mr Khan not to follow Mr Mohamud, he did so anyway and subjected Mr Mohamud to an unprovoked serious assault, kicking and punching him.  The supervisor told Mr Khan to go back inside the kiosk.

Mr Mohamud brought a claim against Morrisons arguing that it was vicariously liable for Mr Khan's actions.  A Recorder sitting in the Birmingham Civil Justice Centre dismissed Mr Mohamud's claim, holding that although Mr Khan had assaulted Mr Mohamud, Morrisons were not vicariously liable for that assault.  Mr Mohamud appealed the decision to the Court of Appeal.

Court of Appeal decision

The Court of Appeal dismissed the appeal and identified a two stage test:

  1. Considering the relationship between the primary wrongdoer and the person alleged to be liable, is the relationship capable of giving of giving rise to vicarious liability?  This stage was satisfied because the relationship between Mr Khan and Morrisons was that of employee and employer.
  2. Is there a sufficiently close connection between the wrongdoing (ie the assault in this case) and the employment so that it would be fair and just to hold the employer vicariously liable?  This stage was not satisfied.  The mere fact that Mr Khan was an employee, that the assault happened on the employer's premises and that Mr Khan was required to interact with customers was not enough to make Morrisons vicariously liable.

Lord Justice Treacy said of Mr Khan: "His duty was simply not to keep public order in the sense of a doorman but to ensure that the shop was in good running order…. to assist people if at all possible, but no more than that".  He considered a number of cases that make it clear that very careful attention must be given to the closeness of the connection between the action of the employee and the duties he is employed to perform in deciding whether the employer is vicariously liable.  Examples of the factors to consider when looking at the closeness of connection include the granting of authority and the furtherance of an employer's aims.  The mere fact of contact between a sales assistant and a customer, which is authorised by an employer, is not sufficient to fix the employer with vicarious liability.  In this case, the actions of Mr Khan went far beyond the scope of his employment.

Comment

Many people may think that Mr Mohamud should have been compensated by Morrisons because he was assaulted by one of their employees on their premises.  However, that is not the test that applies and the question is whether the connection between the assault and the employment is sufficiently close to make it fair and just to hold the employer vicariously liable.  This type of liability involves no fault on the part of the employer and it is right that the courts are not too quick to impose it.

 

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