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Supermarket has no vicarious liability to customer attacked by member of staff - Adam Ohringer in the Court of Appeal
Ahmed Mohamud v WM Morrison Supermarkets Plc  EWCA Civ 116
The Court of Appeal today handed down a judgment which confirms that an employer will not be vicariously liable for the actions of their employee in all circumstances.
In a carefully reasoned judgment LJ Treacy made it clear that each case will very clearly turn on its own facts. The details of the circumstances will be crucial.
The Claimant in this case was subjected to an unprovoked serious assault by Mr Khan, an employee in the Respondent’s kiosk at a petrol station. The Claimant had gone to the petrol station to refill the air in his car tyres. He then went into the kiosk, which was operated as a convenience store by the Defendant, and asked Mr Khan whether he might be able to print some documents which he had contained on a memory stick. Mr Khan responded in an abusive and racist manner. After the Claimant left the kiosk and returned to his car, Mr Khan followed him, and continued to abuse him. He then punched the Claimant to the head. When the Claimant got out of his car to close the passenger door, he was further assaulted by Mr Khan, including being kicked and punched.
During the course of this, Mr Khan’s supervisor was telling him to return inside.
The Recorder at Birmingham County Court had held that there was no vicarious liability, as the Claimant had failed to satisfy the second of a two part test. The test was said to be;
1 That consideration of the relationship between the primary wrongdoer and the person alleged to be liable must give rise to the possibility of vicarious liability. (This was satisfied as there was an employment relationship.)
2 There must also be consideration of whether there was a sufficiently close connection between the wrongdoing and the employment such that it was fair and just to hold that there was employer’s vicarious liability.
The CA upheld the decision that the fact that the Claimant was assaulted on the Defendant’s premises by an employee and that part of his job was to interact with customers, was not sufficient to bring a close enough connection to attract vicarious liability.
The CC and the CA both relied on Lister v Hesley Hall Limited  1 AC 215
The CC also held that following Warren v Henlys Limited  2 All ER 935,the actions of Mr Khan went beyond the scope of his employment and that the attack was carried out for reasons of his own.
The CA decision makes it clear that there must be something more than the fact that the act happened on company premises, during work time.
The CA carefully considered and distinguished the cases which involved jobs where the employee was required to keep order, as part of their role. Cases relating to train ticket inspectors and nightclub doormen were referred to as cases where vicarious liability would arise on the basis that it was part of the job to keep order.
Further, the CA also noted that where 2 employees are involved in a fight, there is no vicarious liability where the motive for the attack was personal racial hostility. The fact that the two people had been brought together at work is not sufficient. Vaickuviene v J Sainsbury Plc  IRLR 792
The unanimous decision of the CA was that, in this case, there was no such close connection between the Claimant and Mr Khan. The fact that Mr Khan was in a customer facing role was not sufficient to warrant vicarious liability. LJ Christopher Clarke described it as “ a step too far”.
Adam Ohringer will be on the lookout for another opportunity to try to persuade the CA that vicarious liability should allow for innocent customers to recover damages from shops they visit, where they are attacked with life changing consequences.