No Longer A Frolic Of His Own

The Supreme Court gave a landmark judgment in the case of Mohamud v W M Morrison Supermarkets Plc recently when it extended the law on vicarious liability.  Vicarious liability refers to a situation where someone is held responsible for the actions of another person.  A common example is where an employer is liable for the acts of its employees.

In the above case Mr Khan was a petrol attendant employed by Morrisons at a petrol station in Birmingham.  In 2008 Mr Mohamud (who was of Somali origin) was on his way to a march in London to protest against the war in Somalia.  He asked Mr Khan whether he could, as a favour, print off some documents which were stored on a USB memory stick.  Mr Khan, who worked behind the counter, responded to the request with foul and abusive language whereupon Mr Mohamud left and went to his car.  However, he was followed by Mr Khan who unleashed a violent assault on him.

Mr Mohamud pursued a claim against Morrisons contending that it was vicariously liable for Mr Khan’s actions.  Mr Mohamud died in 2014 of an illness unrelated to the incident but his family continued with the claim.

Both the Lower Court and the Court of Appeal held that Morrisons was not vicariously liable for Mr Khan’s actions.  Although his employment involved interaction with customers, it involved nothing more than serving and helping them.  There was not a sufficiently close connection between what he was employed to do and assaulting a customer.  Mr Khan had embarked on “a frolic of his own” and therefore his employer was not responsible for his actions.  The law was fairly well-established on this issue and employers would not normally be held liable for the actions of employees if those actions went beyond what the employee was employed to do.

However, and to the surprise of many legal commentators, in a unanimous decision the Supreme Court allowed the appeal holding that Morrisons was vicariously liable for Mr Khan’s actions.  The Supreme Court held that as Mr Khan’s job was to attend to customers and to respond to their enquiries.  His conduct in responding to Mr Mohamud’s request with abuse was unacceptable but interacting with customers was within the “field of activities” assigned to him by Morrisons.  What happened afterwards was an unbroken sequence of events.  The Court said that Mr Khan was not to be taken to have metaphorically “taken off his uniform” the moment he stepped over the counter. Further, the quarrel was not something personal between them.  Instead, Mr Khan was telling Mr Mohamud to keep away from his employer’s premises which he emphasised with violence.  Although it was a gross abuse of his position, nevertheless, it was in connection with the business in which he was employed to serve customers.  Morrisons had entrusted him with that position and Mr Khan’s motive was irrelevant.

Although the Supreme Court made it clear that each Court will need to take a considered view in each case the implications of this ruling could be wide-ranging from an employer’s point of view.  If an employee’s conduct falls within the “field of activities” of his employment then that will be sufficient to establish that the employer should be held liable for those actions.

Picture of Luke Patel

Luke Patel

Luke Patel
Commercial Dispute Resolution Team
0113 227 9316

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