Mohamud v Morrisons – the end justifying the means?

January 20, 2017

by Christian Taylor 

In the previous issue I considered the doctrine of employers’ vicarious liability in the light of the Supreme Court’s decision in Cox v Ministry of Justice[1]. That decision was one of two Supreme Court decisions dealing with this doctrine. The case of A M Mohamud v WM Morrison Supermarkets Plc being the other.[2]

The facts in Mohamud are fairly striking. In March 2008 the Claimant, Mr Mohamud, visited Morrison’s supermarket and petrol station. After checking tyre pressures he entered the kiosk and asked Morrison’s employee, Mr Khan, if there was a printing facility and if it was possible to print off some documents he had stored on a USB stick.

Mr Khan responded in an abusive fashion, including racist language. There were two other employees present who appear to have joined in the abuse of the Claimant. After the abuse the Claimant left the kiosk and walked to his vehicle.

Mr Khan followed him, opened his front passenger door and partly entered the vehicle and told him never to come back. The Claimant told Mr Khan to get out of the car and shut the passenger door. Instead Mr Khan punched the Claimant to the head. There followed a further assault on Mr Mohamud including him being kicked whilst lying on the petrol forecourt.

At trial the judge found the Claimant was in no way at fault. The attack was brutal and unprovoked. Mr Khan had made a positive decision to leave the kiosk and follow the Claimant despite his supervisor encouraging him to do otherwise. Attack was for “no good or apparent reason”. Purely for Mr Khan’s own reasons.

The Judge at first instance dismissed the claim that the Defendant was vicariously liable for the assault perpetrated by Mr Khan. The Court of Appeal upheld the Judge’s decision, finding that the Judge correctly focussed on the Lister test, that is whether there was a sufficiently close connection between what the tortfeasor, ie. Mr Khan, was employed to do and his tortious conduct to make it fair and just to hold the Defendant vicariously liable. The Court of Appeal went on to find that on these facts there was not a sufficiently close connection to hold the Defendant liable. Furthermore in dismissing the appeal they went on to find that if this claim succeed, it would mean that in practically every case where an employee was required to engage with the public, his employer would be liable for any assault which followed on from such an engagement.

The Claimant appealed again to the Supreme Court who allowed the appeal, making the following findings:

• Mr Khan’s job was to attend to customers and respond to their enquiries. His conduct in answering the Claimant’s request in a foul-mouthed way and ordering him to leave was inexcusable but “was within the field of activities assigned to him”.
• Once on the forecourt Mr Khan had repeated his order to the Claimant to leave. This was an order to keep away from his employer’s premises, reinforced by violence. Thus he was purporting to act in furtherance of his employer’s business.
• It was a gross abuse of his position, but it was in connection with the business in which he was employed. Therefore because the Defendant had entrusted him with the position of serving customers, it was just that it should be held responsible for his abuse of that position. It was irrelevant that it looked as if Mr Khan was motivated by personal racism rather than a desire to benefit his employer’s business.

This decision represents a clear widening of the scope of liability on the part of employers for their employees misbehaviour. Widening to the extent that there would appear to be elements of strict liability within the doctrine of employers’ vicarious liability. The two crucial questions are (i) what are the functions or fields of activities of the employee’s job? And (ii) whether there was a sufficient connection between the position in which the employee was employed and the wrongful conduct to make it right for the employer to be held liable under the principle of social justice[3]. Whilst cases remain fact sensitive, where there is an employee who is employed to deal with members of the public, who commits an assault on a member of the public whilst the employee is at work, the victim of the assault is likely to be off to a pretty strong start in any claim against the employer because of the decision in Mohamud.

The Mohamud decision was followed by the Court of Appeal in the case of Fletcher v Chancery Supplies Limited[4]. This case concerned a policeman, Mr Fletcher, cycling along the road when an employee of the Defendant, Mr Traynor, walked out from behind a van and collided with Mr Fletcher. At first instance the Recorder had found for the Claimant on the basis that Mr Traynor had acted negligently within the course of his employment and there was a sufficiently close connection with the tasks assigned to Mr Traynor and his wrongful conduct, to make it fair and just to hold his employer liable. The employer appealed and the Court of Appeal upheld the appeal on the basis that there was no evidence as to the reason why the employee, Mr Traynor, was crossing the road at the time. Mr Traynor did not give evidence at the trial. The Court of Appeal found that the Recorder made an impermissible inference that the employee was acting in the course of his employment on the basis that he was wearing his work clothes, that he told the police he was attempting to cross the road “to where my shop is” and the fact that he had given to the police his work address when asked for his address. The Court of Appeal found that there was no legitimate basis for finding that Mr Traynor was still at work and therefore no basis for finding that his negligence was performed during the course of his employment. Furthermore, Longmore LJ went on to find that even if Mr Traynor had been at work, it was impossible to know whether his crossing over the road was “sufficiently connected” with his work as shop assistant to make it right for his employer to be held liable under the principles of social justice. In other words effectively the Claimant had to show why Mr Traynor had left the shop and was then crossing back to the shop, before he could establish it was “sufficiently connected” with his employment to justify the imposition of liability. “If the judge did not know why Mr Traynor was so doing, the judge had no option but to say that the claimant had not shown that there was a sufficient connection between [his] job and his negligence”. [5] Somewhat understandably in my view, Counsel for the Claimant argued that this was unfair, given that this approach would surely encourage Defendant employers to simply fail to call relevant employees to give any evidence, thereby depriving the Claimant of the opportunity to establish the close connection test.

Thus it is not all good news for Claimants.  There are obviously differences between the facts in Mohamud and the facts in Fletcher. Mohamud concerned a brutal and intentional criminal assault by an employee on an innocent customer. In those circumstances Claimants are obviously on very strong ground against an employer, doubtless largely for reasons of social justice[6]. And in such cases it is unlikely that employers would be able to escape merely by not calling the perpetrator in question. In Fletcher, the act complained of was probably a careless one, as opposed to an intentional one. Fletcher is principally a decision on the facts, not on the legal principle which is applied as per Mohamud. It nevertheless does highlight a real practical problem where an employee acts negligently, and the employer simply fails to call the employee to give evidence intending to deprive the Claimant of the opportunity to establish any close connection with the employment. That evidential conundrum is likely to require some careful thought on the part of a Claimant’s legal representatives.

Whilst various recent enactments and proposed further reforms of Parliament seem intent on undermining the ability of an injured party to receive compensation, the two Supreme Court decisions of Cox and Mohamud seem to have widened the scope of employers’ liability with the aim of achieving social justice by compensating innocent victims even where the legal route to such compensation seems as tortuous as it is tortious.

[1] [2016] UKSC 10