In these circumstances the injured person may raise an action against the employer to recover damages for the losses which they have suffered. Two recent decisions of the Supreme Court appear, at first glance, to show the courts taking a wider approach to the situations in which an employer can be liable.
The first decision is the case of Mohamud v WM Morrison Supermarkets plc  UKSC 11. This case involved the question of whether Morrisons was liable for the actions of one of their employees who had assaulted a customer at a service station where the employee worked. The employee had initially been verbally abusive to the customer. When the customer went back to his car the employee followed him, opened the passenger door and punched the customer on the head, telling him never to return to the service station. When the customer got out of his car to close the passenger door, the employee then subjected the customer to a serious assault.
The customer raised an action against Morrisons on the basis that they were vicariously liable for the actions of their employee. It was dismissed by the trial judge and the Court of Appeal on the basis that there was not a sufficiently close connection between the employee's role and the assault which he committed on the customer. However the Supreme Court overturned this decision and allowed the customer's claim. They considered that it was the employee's role to attend to customers and respond to their enquiries. The employee's original communication with the customer was part of his role, albeit the manner in which he responded was inexcusable. The court considered that the employee's actions following his initial response to the customer formed part of an unbroken sequence of events, the employee was not metaphorically taking off his uniform when he stepped out from behind the counter and his orders to the customer not to return were orders to keep away from Morrisons' premises. The motive of the employee in carrying out the attack was irrelevant.
The second decision is the case of Cox v Ministry of Justice  UKSC 10. This case looked at a situation where the injury was caused not by an employee, but instead by a prisoner carrying out work in the prison kitchen. The prisoner had been asked to move some catering supplies by the catering manager of the prison. When doing so he accidently dropped a sack of rice on to the catering manger's back which caused her injury. She raised an action against the Ministry of Justice (who are responsible for the Prison Service). The case was originally dismissed on the basis that the relationship between the Prison Service and the prisoner was not akin to that of employee and employer and therefore the Prison Service could not be vicariously liable.
However, this position was reversed by the Court of Appeal and the Supreme Court. The Supreme Court was satisfied that the type of relationship between the Prison Service and the prisoner meant that it was fair, just and reasonable to impose liability on the Prison Service for the prisoner's negligence which caused injury to the catering manager. The prisoner was carrying out activities which were an integral part of the Prison Service's business and the injury caused to the catering manager was a risk as a result of the duties being assigned to the prisoner. The Prison Service could not be avoid liability because the prisoner was not an employee.
The scope for liability which appears to arise from these cases will not doubt be of interest to employers. However, it should be noted that the question of whether liability can arise for an employer on the basis of another's actions, will always be dependent on the facts and circumstances of the case.
If you require any advice about circumstances involving vicarious liability, please contact Jenny Dickson.