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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Mohamud v WM Morrison Supermarkets Plc (Rev 1) [2016] UKSC 11 (2 March 2016) URL: https://www.bailii.org/uk/cases/UKSC/2016/11.html Cite as: [2016] AC 677, [2016] WLR(D) 109, [2017] 1 All ER 15, [2016] 2 WLR 821, [2016] UKSC 11, [2016] PIQR P11, [2016] IRLR 362, [2016] ICR 485 |
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[2016] UKSC 11
On appeal from: [2014] EWCA Civ 116
JUDGMENT
Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets plc (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Dyson
Lord Reed
Lord Toulson
JUDGMENT GIVEN ON
2 March 2016
Heard on 12 and 13 October 2015
Appellant Joel Donovan QC Adam Ohringer (Instructed by Bar Pro Bono Unit) |
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Respondent Benjamin Browne QC Roger Harris Isabel Barter (Instructed by Gordons LLP) |
LORD TOULSON: (with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Reed agree)
1. Vicarious liability in tort requires, first, a relationship between the defendant and the wrongdoer, and secondly, a connection between that relationship and the wrongdoer’s act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoer’s conduct. In this case the wrongdoer was employed by the defendant, and so there is no issue about the first requirement. The issue in the appeal is whether there was sufficient connection between the wrongdoer’s employment and his conduct towards the claimant to make the defendant legally responsible. By contrast, the case of Cox v Ministry of Justice [2016] UKSC 10, which was heard by the same division of the court at the same time, is concerned with the first requirement. The judgments are separate because the claims and issues are separate, but they are intended to be complementary to each other in their legal analysis. In preparing this judgment I have had the benefit of Lord Reed’s judgment in Cox, and I agree fully with his reasoning and conclusion.
Facts
The trial judge’s decision
6. In a detailed and impressive judgment, the judge reviewed the principal authorities. He expressed great sympathy for the claimant but concluded that the company was not vicariously liable for Mr Khan’s unprovoked assault. His principal reason was that although Mr Khan’s job involved some interaction with customers and members of the public who attended the kiosk, it involved nothing more than serving and helping them. There was not a sufficiently close connection between what he was employed to do and his tortious conduct for his employer to be held vicariously liable, applying the “close connection” test laid down in Lister v Hesley Hall Ltd [2001] UKHL 22; [2001] 1 AC 215 and followed in later cases including Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366. A further reason given by the judge was that Mr Khan made a positive decision to come out from behind the counter and follow the claimant out of the kiosk in contravention of instructions given to him.
The Court of Appeal’s decision
Grounds of appeal
Origins and development of vicarious liability
12. The 17th century was a century of expansion of commerce and industry, and vicarious liability began to be broadened. Holt CJ was particularly influential in this development. In Boson v Sandford (1691) 2 Salk 440 a shipper of goods sued the ship owner for damage caused by the negligence of the master. Eyre J held that there was no difference between a land carrier and a water carrier, and therefore the owners were under a special liability as carriers for the acts of their servants; but Holt CJ rested his judgment on the broad principle that “whoever employs another is answerable for him, and undertakes for his care to all that make use of him”. (The action failed on a technical pleading point.)
13. In Tuberville v Stamp (1698) 1 Ld Raym 264, Skinner 681, SC Comb 459, the plaintiff complained that the defendant’s servant lit a fire on heath land which destroyed the heath growing on the plaintiff’s land. The majority of the judges held that the plaintiff had a cause of action under the medieval rule about liability for fire; but Holt CJ doubted whether that rule applied to fires other than in houses, and he based liability (according to the report in Comb.) on the broader ground that “if my servant doth anything prejudicial to another, it shall bind me, when it may be presumed that he acts by my authority, being about my business”.
14. Holt CJ did not confine this principle to cases of negligence. In Hern v Nichols (1700) 1 Salk 289, the plaintiff brought an action on the case for deceit, alleging that he bought several parcels of silk under a fraudulent representation by the defendant’s factor that it was another kind of silk. The factor was operating overseas and there was no evidence of deceit on the part of the defendant personally. Holt CJ held that the defendant was nevertheless liable “for seeing somebody must be a loser by this deceit, it is more reason that he that employs and puts a trust and confidence in a deceiver should be a loser, than a stranger”.
15. Holt CJ gave the same explanation for the development of the principle in Sir Robert Wayland’s Case (1706) 3 Salk 234, “the master at his peril ought to take care what servant he employs; and it is more reasonable that he should suffer for the cheats of his servant than strangers and tradesmen”.
16. Holt CJ also held that for the master to be liable the servant’s act had to be within the area of the authority given to him: Middleton v Fowler (1699) 1 Salk 282.
“It was sometimes put on the ground that the master by implication undertakes to answer for his servant’s tort - which is clearly not true. Sometimes it was put on the ground that the servant had an implied authority so to act - which again is clearly not true. Sometimes it was grounded on the fiction that the wrong of the servant is the wrong of the master, from which the conclusion was drawn that the master must be liable because no man shall be allowed to make any advantage of his own wrong; and sometimes on the ground that the master who chooses a careless servant is liable for making a careless choice. Blackstone gives all these reasons for this principle. In addition, he deals with the totally different case where a master has actually authorised the commission of a tort; and cites most of the mediaeval cases of vicarious liability with the special reasons for each of them. It is not surprising that he should take refuge in the maxim ‘qui facit per alium facit per se’ or that others should have used in a similar way the maxim ‘respondeat superior’. His treatment of the matter illustrates the confusion of the authorities; and it is noteworthy that he does not allude to the true reason for the rule - the reason of public policy - which Holt CJ, gave in Hern v Nichols and in Wayland’s Case.”
“In all these cases it may be said, as it was said here, that the master has not authorized the act. It is true, he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in.”
“The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master’s benefit, though no express command or privity of the master be proved.” (Emphasis added.)
20. The words in italics were used in later cases to support the argument that in order to establish vicarious liability it was necessary to show that the employee’s misdeed was committed for the employer’s benefit. This argument was rejected by the House of Lords in the landmark case of Lloyd v Grace, Smith & Co [1912] AC 716. A solicitor’s clerk, who was entrusted by the defendant firm with managing its conveyancing department, defrauded the plaintiff, who had come to the firm for advice about two properties left to her by her late husband. He advised her to sell and procured her signature on documents conveying the properties to himself, which he disposed of for his own benefit. It was held that the firm was liable for his fraud. Lord Macnaghten, who gave the leading judgment (with which Lord Loreburn LC and Lord Atkinson agreed) and Lord Halsbury both referred with approval to the general principle enunciated by Lord Holt (pp 726-727 and 732).
22.
Lord Macnaghten recognised the difficulty of trying to give a precise
meaning to the expression “within his authority”. He referred at pp 732-734 to
the discussion of the subject by Sir Montague Smith in Mackay v Commercial
Bank of New Brunswick (1874) LR 5 PC 394, 410, who observed that since it
may be generally assumed that, in mercantile transactions, principals do not
authorise their agents to act fraudulently, frauds are beyond the agent’s
authority in the narrowest sense of which the expression admits; but that so
narrow a sense would be opposed to justice and so a wider construction had been
put on the words, and that it was difficult to define how far it went. Lord
Macnaghten (at p 736) agreed that what is meant by the expressions “acting
within his authority”, “acting in the course of his employment” and “acting
within the scope of his agency” (as applied to an agent) is not easy to define,
but he said that whichever expression is used, it must be construed liberally.
29. Deatons Pty Ltd v Flew (1949) 79 CLR 370 had similarities to Petterson but was decided differently. According to the jury’s verdict, the claimant was the victim of an unprovoked attack by a barmaid on duty in a hotel when he asked her for the manager. She threw a glass of beer over him and then threw the glass in his face, causing him the loss of sight in one eye. The High Court of Australia held that there was no basis for finding that the barmaid was acting in the course of her employment. They rejected the argument that her conduct was incidental to her employment in that it was a method, though an improper method, of responding to an inquiry from a customer. They also rejected the argument, which had succeeded in Petterson, that her conduct was an improper mode of keeping order. Dixon J gave two reasons: first, that she did not throw the glass in the course of keeping discipline, and secondly, that she was not in charge of the bar, but was working under the supervision of another woman.
32. Hilbery J held that the assault was not committed in the course of the attendant’s employment, applying the Salmond formula. By the time that the assault happened the customer’s business with the petrol station had ended, the petrol had been paid for and the customer had left the premises. When he returned with the police officer it was for the purpose of making a personal complaint about the attendant. The attendant reacted violently to being told that the customer was going to report him to his employer, but there was no basis for holding the employer vicariously liable for that behaviour. The judge was right to dismiss the customer’s claim against the petrol company. At the time of the incident the relationship between the plaintiff and the attendant had changed from that of customer and representative of the petrol company to that of a person making a complaint to the police and the subject of the complaint. In Lister v Hesley Hall Ltd [2002] 1 AC 215 Lord Millett commented, at para 80, that “the better view may have been that the employer was not liable because it was no part of the duties of the pump attendant to keep order”, but there is no suggestion in the report of the case that there was any other employee in practical charge of the forecourt and cash desk area. If the attendant had punched the customer because he believed, rightly or wrongly, that the customer was leaving without payment, I would regard such conduct as occurring within the course of his employment.
33. In Keppel Bus Co Ltd v Ahmad [1974] 1 WLR 1082 the plaintiff was travelling in a bus when the conductor treated an elderly lady passenger in a high-handed and rude fashion. The plaintiff remonstrated with him. An altercation followed in which each tried to hit the other. They were separated by the passengers, but the conductor struck the plaintiff in the eye with his ticket punch, causing loss of sight in the eye. The trial judge and the Singapore Court of Appeal held that the bus company was vicariously liable, but the Privy Council decided otherwise.
“The question is not to be answered merely by applying the test whether the act in itself is one which the servant was authorised or ordered or forbidden to do. The employer has to shoulder responsibility on a wider basis; and he may, and often does, become responsible to third parties for acts which he has expressly or impliedly forbidden the servant to do. … It remains necessary to the master’s responsibility that the servant’s act be one done within the sphere of his service or the scope of his employment, but it may have this character although it consists in doing something which is the very opposite of what the servant has been intended or ordered to do, and which he does for his own private ends. An honest master does not employ or authorise his servant to commit crimes of dishonesty towards third parties; but nevertheless he may incur liability for a crime of dishonesty committed by the servant if it was committed by him within the field of activities which the employment assigned to him, and that although the crime was committed by the servant solely in pursuance of his own private advantage.”
The expression “within the field of activities” assigned to the employee is helpful. It conjures a wider range of conduct than acts done in furtherance of his employment.
37. In Rose v Plenty [1976] 1 WLR 141 a milk roundsman paid a 13 year old boy to help him collect and deliver milk bottles, in disregard of his employer’s rule prohibiting children from being carried on milk floats. The boy was injured when he fell off a milk float as a result of the employee’s negligent driving. The trial judge dismissed the boy’s claim against the employer on the ground that the employee was acting outside the scope of his employment and that the boy was a trespasser on the float, but his decision was reversed by a majority of the Court of Appeal.
“In words which have frequently been quoted both in the courts and in the universities, Salmond on Torts, 16th ed (1973), p 462, refers to the basis of vicarious liability for accidental damage as being one of public policy. That view is supported by quotations (dated no doubt, but still full of life) of a dictum of Lord Brougham and of another, 100 years or more earlier, of Sir John Holt. That it is “socially convenient and rough justice” to make an employer liable for the torts of his servant in the cases to which the principle applies, was recognised in Limpus v London General Omnibus Co, 1 H & C 526; see the judgment of Willes J at p 539. I think it important to realise that the principle of vicarious liability is one of public policy. It is not a principle which derives from a critical or refined consideration of other concepts in the common law, for example, the concept of trespass or indeed the concept of agency. No doubt in particular cases it may be relevant to consider whether a particular plaintiff was or was not a trespasser. Similarly, when, as I shall indicate, it is important that one should determine the course of employment of the servant, the law of agency may have some marginal relevance. But basically, as I understand it, the employer is made vicariously liable for the tort of his employee not because the plaintiff is an invitee, nor because of the authority possessed by the servant, but because it is a case in which the employer, having put matters into motion, should be liable if the motion which he has originated leads to damage to another. What is the approach which the cases identify as the correct approach in order to determine this question of public policy? First, … one looks to see whether the servant has committed a tort upon the plaintiff … The next question … is whether the employer should shoulder the liability for compensating the person injured by the tort … [I]t does appear to me to be clear, since the decision of Limpus v London General Omnibus Co, 1 H & C 526, that that question has to be answered by directing attention to what the servant was employed to do when he committed the tort that has caused damage to the plaintiff. The servant was, of course, employed at the time of the accident to do a whole number of operations. He was certainly not employed to give the boy a lift, and if one confines one’s analysis of the facts to the incident of injury to the plaintiff, then no doubt one would say that carrying the boy on the float - giving him a lift - was not in the course of the servant’s employment. But in Ilkiw v Samuels [1963] 1 WLR 991 Diplock LJ indicated that the proper approach to the nature of the servant’s employment is a broad one. He says, at p 1004: ‘As each of these nouns implies’ - he is referring to the nouns used to describe course of employment, sphere, scope and so forth - ‘the matter must be looked at broadly, not dissecting the servant’s task into its component activities - such as driving, loading, sheeting and the like - by asking: what was the job on which he was engaged for his employer? and answering that question as a jury would’.”
Lister v Hesley Hall Ltd
40. In adopting the approach which he did, Lord Steyn referred to the judgment of McLachlin J in Bazley v Curry (1999) 174 DLR (4th) 45. McLachlin J summarised the public policy justification for imposing vicarious liability, at para 31, in a similar fashion to Holt and Scarman LJ:
“The employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer’s reasonable efforts, it is fair that the person or organisation that creates the enterprise and hence the risk should bear the loss.”
Compare Scarman LJ’s statement that “the employer, having put matters into motion, should be liable if the motion which he has originated leads to damage to another”. This thinking has been prominent in cases since Lister as the social underpinning of the doctrine of vicarious liability, but the court is not required in each case to conduct a retrospective assessment of the degree to which the employee would have been considered to present a risk. As Immanuel Kant wrote, “Out of the crooked timber of humanity, no straight thing was ever made.” The risk of an employee misusing his position is one of life’s unavoidable facts.
41. In Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366, the House of Lords applied the Lister approach to vicarious liability in a case of commercial fraud. Lord Nicholls (with whom Lords Slynn and Hutton agreed) said:
“22. … [I]t is a fact of life, and therefore to be expected by those who carry on businesses, that sometimes their agents may exceed the bounds of their authority or even defy express instructions. It is fair to allocate risk of losses thus arising to the businesses rather than leave those wronged with the sole remedy, of doubtful value, against the individual employee who committed the wrong. To this end, the law has given the concept of ‘ordinary course of employment’ an extended scope.
23. If, then, authority is not the touchstone, what is? ... Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful act may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment … (Original emphasis)
25. This ‘close connection’ test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged. …
26. This lack of precision is inevitable, given the infinite range of circumstances where the issue arises. The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard to the assistance provided by previous court decisions.”
42. The “close connection” test adumbrated in Lister and Dubai Aluminium has been followed in a line of later cases including several at the highest level: Bernard v Attorney General of Jamaica [2004] UKPC 47; [2005] IRLR 398, Brown v Robinson [2004] UKPC 56, Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34; [2007] 1 AC 224 and Various Claimants v Catholic Child Welfare Society [2012] UKHL 56; [2013] 2 AC 1 (“the Christian Brothers case”).
The present law
The present case
LORD DYSON:
50. As Lord Toulson has explained, the test for holding an employer vicariously liable for the tort of his employee has troubled the courts for many years. The “close connection” test (whether the employee’s tort is so closely connected with his employment that it would be just to hold the employer liable) was first articulated in this jurisdiction by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. It has been subsequently followed in many cases, including several at the highest level: see para 42 above. As Lord Nicholls said in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366, para 26, the test is imprecise, but that is inevitable given the infinite range of circumstances where the issue of vicarious liability arises. The court, he said, has to make an evaluative judgment in each case, having regard to all the circumstances and to the assistance provided by previous court decisions on the facts of other cases.
55. In Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1 Lord Phillips said at para 19 “the law of vicarious liability is on the move”. It is true that there have been developments in the law as to the type of relationship that has to exist between an individual and a defendant for vicarious liability to be imposed on the defendant in respect of a tort committed by that individual. These developments have been a response to changes in the legal relationships between enterprises and members of their workforces and the increasing complexity and sophistication of the organisation of enterprises in the modern world. A good example is provided by the facts of the Catholic Child Welfare Society case itself.
56. But there is no need for the law governing the circumstances in which an employer should be held vicariously liable for a tort committed by his employee to be on the move. There have been no changes in societal conditions which require such a development. The changes in the case law relating to the definition of the circumstances in which an employer is vicariously liable for the tort of his employee have not been made in response to changing social conditions. Rather they have been prompted by the aim of producing a fairer and more workable test. Unsurprisingly, this basic aim has remained constant. The Salmond test defined a wrongful act by a servant in the course of his employment as “either (a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master”: Salmond, Law of Torts, 1st ed (1907), p 83; and Salmond & Heuston on the Law of Torts, 21st ed (1996), p 443. As Lord Steyn said in Lister at para 20, this was “simply a practical test serving as a dividing line between cases where it is or is not just to impose vicarious liability” (emphasis added). The importance of Lister (and the Canadian case of Bazley v Curry (1999) 174 DLR (4th) 45 whose reasoning it adopted) is that it recognised the difficulty created by the second limb of the Salmond test. This was not effective for determining the circumstances in which it was just to hold an employer vicariously liable for committing an act not authorised by the employer. The close connection test was introduced in order to remedy this shortcoming. This improvement was achieved by the simple expedient of explicitly incorporating the concept of justice into the close connection test. The new test was, therefore, by definition more effective than the Salmond test for determining the circumstances in which it is just to hold an employer vicariously liable for the unauthorised acts of his employee. It is difficult to see how the close connection test might be further refined. It is sufficient to say that no satisfactory refinement of the test has been suggested in the present case.
58. For these reasons as well as those given by Lord Toulson, I would allow this appeal.