Vicarious liability revisited
- By Paul Sullivan
The idea of a ‘master’ being vicariously liable for the acts of his ‘servant’ committed ‘in the course of his employment’ is nothing new.
For the best part of the last century, the formula for vicarious liability was as expressed by Sir John Salmond KC, the English-born New Zealand jurist, in 1907:
‘a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master …[b]ut a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them.’
The key phrase here is ‘in the course of his employment’. For example, in the case of Rose v. Plenty & Another (1976), Mr Plenty was employed as a milkman by Co-operative Retail Services Ltd who expressly prohibited their employees from carrying children on their milk floats. Despite this, Plenty took on a 13-year-old boy, Master Rose, to help out with his rounds. In the course of this arrangement, Rose suffered injury due to Plenty’s negligence.
The Court of Appeal held the Co-operative vicariously liable for Plenty’s negligence – even though he had ignored their express instructions – as he was still acting in the ‘course of his employment’ by engaging Rose.
The Supreme Court recently considered companion appeals on the scope of vicarious liability, developing further what might be described as two distinct, yet intertwined, strands to the concept.
In Cox v. Ministry of Justice  UKSC 10, the Claimant was employed by the Defendant as catering manager in HMP Swansea. As a part of her duties, she was in charge of four members of staff and also supervised about 20 prisoners who worked in the kitchen. The Claimant had instructed four prisoners to move a delivery, from the kitchen to the upstairs store, in the course of which a sack of rice was inadvertently dropped on the Claimant’s back, causing her injury.
Lord Reed asked: ‘First, what sort of relationship had to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual?’ In this case, the traditional employer / employee relationship was not readily apparent.
The Supreme Court was, however, satisfied that a relationship, other that one of ‘employment’, could in principle give rise to vicarious liability “where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.”
In Mohamud v. W. M. Morrison Supermarkets plc.  UKSC 11, the Claimant attended at the premises of the Defendant and asked of their employee, a Mr Khan, whether there was a facility whereby he could print documents from a USB device. Khan responded with an unprovoked torrent of seemingly racially motivated abuse culminating in a sustained physical assault upon the Claimant. The Supreme Court allowed the Claimant’s appeal on the basis that there was “unbroken sequence of events” between the enquiry made of Mr Khan and the assault.
If one considers an academic application of Salmond, the very idea of holding an employer liable for acts or omissions so far beyond the scope of the course of employment, as was the case in Muhamud, is repugnant.
The Supreme Court has gone so far as to assert ‘public policy considerations’. It is clear that their application, and interpretation, of vicarious liability will continue to be rather broad and geared towards making sure that an injured party is compensated by interpreting the law to fit.
The prudent employer may wish to review their contracts of employment and associated policies in light of this. We can help you with that.
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