Mohamud v WM Morrison Supermarkets Plc

This appeal is concerned with a single question, namely whether the Respondent supermarket was vicariously liable for an assault committed by an employee upon the Appellant.

The appeal is against a judgment of Mr Recorder Avtar Khangure QC delivered on 7^th November 2012 at the Birmingham Civil Justice Centre. The Recorder dismissed the Appellant’s claim, holding (inter alia) that although the Respondent’s employee had assaulted the Appellant, the Respondent was not vicariously liable for that assault.

The Appellant filed a notice raising various grounds of appeal, essentially of a factual nature. However, at a permission hearing before Sir Stephen Sedley, permission was granted to add a further ground of appeal, namely whether the Recorder erred in law in failing to find that on the facts found by him the Respondent was vicariously liable. Sir Stephen refused permission to appeal on all grounds save for that relating to vicarious liability.

On 15^th March 2008 the Appellant visited the Respondent’s supermarket and petrol station premises in Small Heath, Birmingham. There is a kiosk which serves the petrol station which performs the function of a small convenience store. After checking the tyre pressures on his car, the Appellant, who is of Somali descent, entered the kiosk and asked the Respondent’s employee, Amjid Khan, if it was possible to print off some documents which were stored on a USB stick which the Appellant was carrying. Mr Khan responded in abusive fashion, including racist language.

In addition to Khan, there were two other employees present who appear to have joined in the abuse of the Appellant, but who, on the judge’s finding, were not involved in the subsequent violence.

After being abused the Appellant left the kiosk and walked to his vehicle. He was immediately followed by Khan, who opened the front passenger door and partly entered the vehicle. He shouted violent abuse at the Appellant, who told him to get out of his car. At this point the Appellant was punched to the head by Khan. Then when he got out of his car to close the passenger door, he was again attacked by Khan, who punched him twice to the head. Khan then leapt on the Appellant and subjected him to a serious attack involving punches and kicks while the Appellant was curled up on the petrol station forecourt.

The judge found that the Appellant was in no way at fault and had not behaved offensively or aggressively at any stage. He described the attack as “brutal and unprovoked”.

The judge found that the assault took place at a time when Khan was being encouraged to go back inside the kiosk by his supervisor, who had earlier told him not to follow the Appellant out of the premises. Khan had made a positive decision to leave his kiosk and to follow the Appellant.

The judge found that for “no good or apparent reason” Mr Khan had decided to follow the Appellant from the kiosk and carry out his attack. He said that Mr Khan’s actions appear to have taken place purely for reasons of his own.

The issue of vicarious liability for the assault was squarely before the judge, and his judgment shows that he had been taken to a large number of authorities in this area of the law. Having considered those authorities in detail in the course of his judgment, the Recorder held that there was no vicarious liability in this case so as to make the Respondent liable for what Mr Khan had done.

A claim based in negligence on the basis of a breach of duty adequately to train Mr Khan also failed. That is not the subject of an appeal. In the circumstances the Recorder dismissed the Appellant’s claim. In so doing he did not therefore need to consider the Appellant’s claim for damages for personal injury and consequential losses arising from the assault. Those allege a head injury causing epilepsy; psychological injury; and soft tissue injuries to the upper limbs and trunk.

In addition, it is asserted that the Appellant has been restricted in his work since the incident and may suffer ongoing loss of income and/or prejudice in the labour market. There was also a claim for aggravated damages.

The judge began his consideration of vicarious liability by correctly identifying a two stage test: firstly, consideration of the relationship between the primary wrongdoer and the person alleged to be liable and whether that relationship is capable of giving rise to vicarious liability. There is no difficulty for the applicant in satisfying this first stage as the relationship between Khan and the Respondent is that of employer to employee.

In the course of his judgment, the Recorder identified Mr Khan’s job as that of an assistant in the kiosk. The judge said:

“His duty was simply not to keep public order in the sense of a doorman, but to ensure that the shop was in good running order and that petrol pumps were in good running order, to assist people if at all possible, but no more than that.”

The judge also commented that Khan’s duties would obviously include interaction with customers and found that he had specific instructions and training not to confront in any way customers who were abusive and/or angry (which this Appellant was not).

The second stage which forms the focus of this appeal, relates to whether there is a sufficiently close connection between the wrongdoing, the assaults in this case, and the employment so that it would be fair and just to hold the employers vicariously liable. It was common ground that this was the correct test, arising from the decisions in Lister v Hesley Hall Limited [2002] 1 AC 215 and Dubai Aluminium Co Limited v Salaam [2003] 2 AC 366. This test has been adopted in a series of subsequent cases cited to this court.

It was this latter limb of the two stage test which the judge held the Appellant had failed to satisfy. Having concluded that for no good or apparent reason Mr Khan had left the premises and attacked the Appellant, the judge noted that although the scope of Mr Khan’s employment included interaction with customers, it was clear that specific instructions from an employer to an employee not to do something unlawful would be insufficient in itself to avoid vicarious liability. He made his finding on the basis that Mr Khan’s duties as an employee were in the terms summarised at paragraphs 14 and 15 above. The mere fact that Khan was an employee, that the assault happened on the employer’s premises, and that he was required to interact with customers in the course of his duties did not suffice to bring this case within the necessary close connection in relation to employment so as to attract vicarious liability on the part of the Respondent.

The judge said that he came to this conclusion even after taking a broad view of the nature of the employment and what was reasonably incidental to the employee’s duties. The judge said he was reinforced in his view by the analysis of Warren v Henlys Limited [1948] 2 All ER 935 by Lord Millett at paragraph 80 in Lister, where his Lordship concluded that notwithstanding criticism of that decision, the better view may be that the employer was not liable because it was no part of the duties of the pump attendant who had assaulted a customer to keep order. The judge found that his own findings as to Mr Khan’s duties were in a parallel position, and concluded that Mr Khan’s “actions appear to have taken place purely for reasons of his own and beyond the scope of his employment”.

The Appellant argues that the judge’s conclusion, even on the facts as found, was wrong. Mr Ohringer argued that in modern times an individual who goes into a shop and interacts with a sales assistant and who suffers an assault in the course of a confrontation should be able to make the sales assistant’s employer vicariously liable. The assistant should be regarded as wearing the badge of the employer and representing its brand standards. He or she is in a customer facing role and likely to have to respond to a variety of enquiries and approaches, some of which may well be provocative or difficult.

Taking a broad approach to the nature of Khan’s employment, it could be viewed as a situation in which friction was not unusual so that there would be no improper extension of vicarious liability to this situation. The attack in this case did not represent some incidental or random assault, but rather arose out of the interaction between Mr Khan and the Appellant, and so was clearly committed within the parameters of Khan’s duties.

In the circumstances it would be entirely fair and just for the Appellant to have a remedy against the employer. So to hold would act as a deterrent to others and in addition, the employer rather than the individual employee would be likely to have insurance as a normal overhead in the carrying on of his business. The continuum of activity between the initial interaction involving Mr Khan and the Appellant, the short timeframe involved and the fact that the physical assault took place on the employer’s premises were additional factors in favour of a finding of liability.

Mr Harris, for the Respondent, supported the judge’s finding. He correctly drew attention to the observations of Sir Anthony Clarke MR at paragraph 22 of Gravil v Carroll [2008] ICR 1222. His Lordship observed that it was not appropriate to ask whether in all the circumstances of the case it would be fair and just to hold the employer liable. The critical factor was the nature of the employment and the closeness (or otherwise) of the connection between the employment and the tort. The question of what is fair and reasonable must be answered in the context of the closeness or otherwise of the connection.

The crucial question therefore, submitted Mr Harris, involved concentrating on the closeness of the connection between the wrongful acts of the employee and his duties. He stressed that Mr Khan’s duties, as expressly found by the judge, did not involve any element of keeping public order or exercising authority over the customer. This was an important finding. The mere opportunity to interact between sales assistant and prospective customer was not sufficient to create vicarious liability. Some additional factor was necessary as other cases had demonstrated.

Whether the matter was approached from the standpoint of the employee’s duties involving some control, authority, or particular responsibility for the alleged victim, or whether the matter was tested by asking whether the employee’s activities involved some serious inherent risk of the kind of wrong done on any proper analysis, this attack was insufficiently connected to Khan’s duties to make the Respondent vicarious liable. Unfortunate as it was for the Appellant, what occurred was not the legal responsibility of the Respondent.

Whilst the test identified in Lister and later cases has been clearly formulated, its application, because of its generality, is less easy. As has been observed on a number of previous occasions, each case must turn on its own particular facts, and the decision will inevitably involve an element of value judgment. See for example Weddall v Barchester Healthcare Limited [2012] EWCA Civ 25, [2012] IRLR 307 at paragraph 60.

The recognition that in seeking to see whether the test is satisfied, a court will need to bring a close focus upon the facts of the case is of particular importance in this appeal. I consider that Mr Ohringer’s framing of the issue for this court in terms of whether an employee working in the retail trade and interacting with a customer is a situation sufficient to import vicarious liability is too broad. The answer to the problem requires a closer analysis.

In this case it is important to recognise that on the judge’s findings (a) the duties imposed on Mr Khan in his interaction with customers were relatively limited and involved no element of authority over them, or responsibility for keeping order; (b) Mr Khan’s actions towards the Appellant were not in any way motivated by anything the Appellant had said or done, nor were they improperly or otherwise directed to advancing the employer’s interests, but instead took place “purely for reasons of his own”.

It seems to me that the particular circumstances found by the judge are highly relevant to the outcome of this appeal, it being recognised in the authorities from Lister onwards that reference to the decided cases will assist in the decision as to whether the test is satisfied.

In considering the scope of the employment and the application of the test, a broad approach should be adopted – see Lord Clyde at paragraphs 42 and 43 of Lister. The fact that the assault took place at the employee’s place of work and at a time when he was on duty is relevant, but not conclusive – see paragraph 44. Similarly the opportunity to be present at premises enabling the assault to be committed does not mean that the act is necessarily within the scope of the employment; a greater connection between the tort and the circumstances of the employment is required – see paragraph 45.

In examining the close connection test, the judge considered and counsel have referred us to a number of cases.

In Fennelly v Connex South Eastern Limited [2001] IRLR 390, a case of assault by a railway ticket inspector, this court held that the assault arose directly out of an altercation instigated by the inspector on behalf of his employer, dealing as he thought appropriate with a passenger who was not reacting as the employer would have wished. The inspector had put the passenger in a headlock as the culmination of an intervention performed as part of his job, leading to conflict and confrontation. Some emphasis was laid on the inspector’s statutory authority to interfere with the progress of passengers if they failed to produce a ticket.

It seems to me that the basis of the finding was that the inspector’s job involved some obligation to keep order, involving potential confrontation with the customer. That element, identified as significant, is absent from this case. Similar findings have been made in imposing vicarious liability in cases involving nightclub doormen. See Vasey v Surrey Free Inns Plc [1996] PIQR 373 and Mattis v Pollock (t/a Flamingos Nightclub) [2003] 1 WLR 2158. In each case the doorman’s authority to keep order and discipline and to use force if need be was a decisive factor.

In Gravil the employee was a rugby player who punched an opponent in the course of a game. The throwing of punches as the scrum broke up was described as “just the kind of thing that both clubs would have expected to occur”. The risk of the employee punching another player and causing him injury was a reasonably incidental risk to the type of employment being carried on, namely playing rugby.

In Wallbank v Wallbank Fox Designs Limited [2012] EWCA Civ 25, [2012] IRLR 307, an appeal heard at the same time as Weddall, a factory manager who gave an employee instructions was violently assaulted. The court held that the close connection test was satisfied since the possibility of friction is inherent in any employment relationship, but particularly one in a factory, where instant instructions and quick reactions are required. The risk of an over-robust reaction to an instruction was a risk created by the employment.

All of those cases involved a finding of liability in situations where the employee was given duties involving the clear possibility of confrontation and the use of force or was placed in a situation where an outbreak of violence was likely. They are to be contrasted with the current case, where on the judge’s findings, Mr Khan’s duties were circumscribed and where, indeed, his instructions were not to engage in any form of confrontation with a customer, even an angry one.

Returning to the doorman cases (Fennelly and Mattis), Mr Harris made what I consider to be a telling point in that the finding of liability in each case was made not on the simple basis of interaction between employee and customer, but on the existence of some additional factor such as keeping order. In Fennelly the court at paragraph 20 made reference to the decision of the Privy Council in Keppel Bus Company v Sa’ad bin Ahmad [1974] 1 WLR 1082. That case involved an alleged assault by a bus conductor upon a passenger. It was held that the employer was not liable, since the conductor struck the passenger at a time when he was not exercising his responsibility to maintain order on the bus.

That decision, cited in Fennelly, does seem to me to be founded on the basis that mere interaction with a customer is insufficient to establish liability. That that is the case is additionally shown by the decisions in Fennelly and Mattis, which proceeded not on the basis of interaction with a customer, but rather on the basis of an element additional to interaction not present in the appeal before this court. The reasoning in those cases is consistent with Lord Millett’s analysis of Warren v Henlys Limited.

Approaching the matter from a different angle, we have considered the recent decision of the Scottish Court of Session, Vaickuviene v J Sainsbury Plc [2013] IRLR 792. That was a case where one supermarket shelf stacker stabbed another to death in circumstances driven by personal racial hostility. The court observed that the mere bringing together of persons as employees was insufficient to impose vicarious liability for all the actings of each employee towards the other (paragraph 31). The court held at paragraph 30 that no matter how broadly the context of the stabber’s employment was looked at, it was not possible to hold that Sainsbury’s retail business in general or their engagement of persons to stack shelves in supermarkets in particular carried any special or additional risk that persons such as the deceased would either be harassed or otherwise come to harm as a result of deliberate violence from fellow employees.

This focus on special or additional risk chimes with the findings in Gravil and the doorman cases. Whilst such a feature was found to be absent in Vaickuviene, the circumstances of the employee’s duties in the other cases involve an element of risk inherent in their employment. The same can be said of Wallbank.

In The Children’s Foundation v Bazley [1999] 174 DLR (4^th Ed) 45, (Bazley v Curry), McLachlin J in the Supreme Court of Canada, also referred to the question of risk, stating at paragraph 41(2):

“The fundamental question is whether the wrongful act is sufficiently related to conduct authorised by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues there from, even if unrelated to the employer’s desires.”

She went on at paragraph 41(3) to pose some non-inclusive factors which may be relevant in considering intentional torts. They are:

“(a)

The opportunity that the enterprise afforded the employee to abuse his or her power;

(b)

The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c)

The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d)

The extent of power conferred on the employee in relation to the victim;

(e)

The vulnerability of potential victims to wrongful exercise of the employee’s power.”

Applying those considerations to the present matter, (a); an opportunity to assault was afforded. That in itself is not sufficient, and in this instance it did not involve an abuse of power. (b); the assault did not and could not have furthered the employer’s aims. The situation is different from cases discussed earlier in this judgment. (c); the assault was related to a polite approach and request by the Appellant. The situation was one in which friction, confrontation or intimacy was not, in my judgment, inherent. (d); no relevant power was conferred on the employee as regards to the customer. (e); there was no special vulnerability of the applicant in the way that might arise, for example, where a child is in the care of a warden at a home – see Lister.

In Lister itself, Lord Millett observed at paragraph 65 that if the employer’s objectives could not be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. Mere opportunity to commit the wrong would not be sufficient. The employer would only be liable if the risk was one which experience shows is inherent in the nature of the business.

At paragraph 80 he said:

“Clearly an employer is liable where he has placed the employee in a situation where he may be expected on occasions to have regard to personal violence… Equally clearly the employer is not liable for an assault by his employee on a customer merely because it was the result of a quarrel arising out of his employment…”

His Lordship then referred to Warren v Henlys Limited.

Mr Ohringer had submitted that we should not regard Warren v Henlys Limited as good law. However, it seems to me that on the basis explained by Lord Millett in Lister, the decision survives as a relevant authority. It is significant that Lord Millett did not seek to overrule it. Mr Ohringer recognised realistically that Lord Millett’s observations caused him a degree of difficulty. In my judgment he was right to do so.

The authorities from Lister onwards make clear that very careful attention must be given to the closeness of the connection between the tort of the employee and the duties he is employed to perform viewed in the round. In my judgment, the cases cited earlier in this judgment show that the mere fact that the employment provided the opportunity, setting, time and place for the tort to occur is not necessarily sufficient. They demonstrate that some factor or feature going beyond interaction between the employee and the victim is required. The decided cases have examined the question of close connection by reference to factors such as the granting of authority, the furtherance of an employer’s aims, the inherence of friction or confrontation in the employment and the additional risk of the kind of wrong occurring.

These different approaches represent different ways of asking and answering the key question as to the closeness of connection. I would not regard them as exhaustive, but as illustrative of the focus which needs to be brought.

My conclusion in relation to this appeal is that, on the basis of the facts found by the judge, both as to the nature of Mr Khan’s employment and the particular circumstances of the assault, there was no element of the sort discussed above which could bring this Appellant’s case within the close connection test so as properly to enable a finding of vicarious liability. One has natural sympathy for Mr Mohamud, who was the innocent victim of an unprovoked attack involving apparently very serious consequences for him. It can be appreciated that many would feel that, if the employee did what he did on the employer’s premises and at a time when the contact between the two men arose out of the fact that the employer was carrying on his business, the employer should be liable.

However, in my judgment, our law is not yet at a stage where the mere fact of contact between a sales assistant and a customer, which is plainly authorised by an employer, is of itself sufficient to fix the employer with vicarious liability. As Lord Neuberger observed in Maga v Archbishop of Birmingham [2010] 1 WLR 1441 at paragraph 52:

“I accept that the court should not be too ready to impose vicarious liability on a defendant. It is, after all, a type of liability for tort which involves no fault on the part of the defendant, and for that reason alone its application should be reasonably circumscribed.”

In the circumstances and for the reasons given, I would dismiss this appeal. I add that I am in agreement with the other two judgments in this case.

If the question was simply whether it would be fair and just for Morrisons to be required to compensate Mr Mohamud for the injuries that he suffered, there would be strong grounds for saying that they should. The assault occurred on their premises; it was an assault by someone they chose to employ at a time when he was on duty. It was the sequel to an interchange which began when Mr Mohamud asked to be supplied with a service which he thought that Morrisons could provide. Mr Khan, whose job it was to deal with such a request, followed up his refusal with an apparently motiveless attack on a customer who was in no way at fault. The customer was entitled to expect a polite response. At the least he could expect not to be assaulted by the staff of the business. Instead he got struck to the head by one of them and kicked when on the ground. In those circumstances it could be said that the employer could fairly be expected to bear the cost of compensation; rather than that the victim should left without any civil remedy save against an assailant who was unlikely to be able to pay full compensation.

That is not however, the test. The question is whether the connection between the assault and the employment was sufficiently close to make it fair and just to hold the employer vicariously liable. The fact that Mr Khan’s job included interaction with the public does not, by itself, provide that connection. I was at one time attracted by the proposition that the assault could be looked at as a perverse execution by Mr Khan of his duty to engage with customers such that what he did could be regarded as falling within the scope of his work. However, such an approach parts company with reality, which was, on the judge’s findings, that for reasons of his own Mr Khan, having declined Mr Mohamud’s request - for reasons of his own which are unexplained - decided to do what he did; and went out on to the fore court to assault Mr Khan, when it was no part of his job to do anything in respect of drivers there who were behaving perfectly properly. If Morrisons were liable it would mean that in practically every case where an employee was required to engage with the public, his employer would be liable for any assault which followed on from such an engagement. That appears to me to be a step too far.

I agree with my Lord that, for the reasons he has given and in the light of the cases to which he has referred, something closer than a duty to engage with customers is required. The cases illustrate circumstances which can afford a close enough connection between assault and employment. In the case of this assault those circumstances are absent. The work of kiosk employee carried with it no special risk of violence being used against customers; nor have we any reason to suppose that assaults of this type and in these circumstances are other than rare events.

I also agree with the judgment of Arden, LJ. Accordingly I, too, would dismiss the appeal.

I agree with the judgment of Treacy LJ. I am grateful to him for setting out the cases so fully as I shall not need to do so.

Clerk and Lindsell on Torts §6-44 seeks to rationalise the cases in this field, such as those Treacy LJ cites, and states that, in the majority of the cases where an employee acting on his own initiative commits an assault:

“the correct approach is by consideration of the discretion, if any, which is vested in the employee. It is, in general, the case that the employer will not be liable for an assault committed unless done in the wrongful exercise of a discretion vested in the employee. Personal acts of vengeance or spite, though generated by employment will not render the employer vicariously liable.”

On this analysis, in many cases, the close connection required for vicarious liability for intentional torts committed by an employee is to be found in the fact that the employee has a discretion to act which his employer has given him and the assault occurs in the course of or as reasonably incidental to exercising that discretion. Thus, in Gravil v Carrol [2008] ICR 1222, there was a sufficient connection to make the employer liable for a player throwing a punch following a scrum because this act was on the evidence a reasonably incidental risk to playing rugby which the employee was employed to do.

The footnotes in Clerk and Lindsell at §6-44 cite as examples Vasey v Surrey Free Inns [1996] PIQR P373, where club doormen reacted with excessive violence when the claimant damaged their employer's property and the employer was held vicariously liable as it was the doormen’s duty to protect the employer’s property and their wrongful act was an unauthorised act within the scope of their duty, and the difficult case of Mattis v Pollock [2003] 1 WLR 2158, where the nightclub owner was held vicariously liable when one of his doormen stabbed a customer of the club outside the club several minutes after a violent incident that had occurred between them inside the club. In that case, as the footnotes explain, this court held that the assault was so closely connected with what the club-owner expected the doorman to do, namely, to keep order in an aggressive and intimidatory manner, as to impose vicarious liability. Furthermore, the assault in Wallbank occurred while the employee was doing what he was employed to do, namely take directions from a senior employee.

When Lord Millett explained Warren v Henlys [1948] 2 All ER 935 in Lister v Hesley Hall Ltd [2002] 1 AC 215 at §80 as being capable of being understood on the basis that the employee was not employed to keep order, he was in my judgment using the example of an employee who is instructed to keep order as an instance of where there could well be a close connection. It would otherwise be odd if vicarious liability could only arise if the employee has a discretion to keep order and could not arise, for example, if an employee is for instance tasked with serving customers with hot coffee which he deliberately pours over a customer. It would also be a departure from the general test laid down in Lister v Hesley Hall. The question is always whether there is a sufficiently close connection between the wrongful act and what the employee was required to do.

On that basis, keeping order is simply an instance, perhaps in the case of an assault the most common instance, of where a sufficiently close connection may exist.

In the present case, it is clear on the facts as found that Mr Khan was not instructed to do anything about drivers who had parked on the forecourt and who were not using or interfering with the petrol pumps. So Mr Khan’s assault of the appellant did not arise out of what he had been employed to do. The assault should never have happened, but the employer is not to be held vicariously liable for it.

In Bazley v Curry [1999] 174 DLR (4^th Ed) 45 at [41], McLachlin J held that “judges should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of ‘scope of employment’ and ‘mode of conduct’. I agree. Treacy LJ has in part addressed that matter by citing the dictum of Lord Neuberger set out in paragraph 49 of his judgment. In addition to the point there made about not expanding strict liability beyond its proper scope, there is the point that it may be unfair to impose liability on an employer for risks that it would be difficult for him to foresee or quantify since he may not have insurance or be able to obtain it on reasonable terms. Furthermore, the underlying policy of vicarious liability is to provide an incentive to employers to improve the standards of safety provided for members of the public with whom their employees have dealings and the imposition of liability for personal acts of vengeance over which employers have no control would not assist in achieving that aim. I was initially attracted to the idea that the fact that a good employer will provide employees who deal with customers with training but, having heard the submissions, I do not consider that it would be right to take this into account as a reason for imposing liability. It would potentially be counter-productive for the law to impose liability on the basis that the employer provided training since that might result in the more careful employer becoming liable where a less careful employer would not be.

For these reasons I too would dismiss this appeal. Since writing this judgment, I have read the judgment of Clarke LJ, and I agree also with his judgment.