Mohamud -v- WM Morrison Supermarkets  EWCA Civ 116
The Court of Appeal has again visited the issue of in what circumstances an employer should be vicariously liable for an assault perpetrated by one its employees. The Bailii link to the case report can be found here
For my earlier article on this issue, following the previous Court of Appeal decision of Weddall v Barchester , see here
In Mohamud the assault was committed by a petrol station kiosk attendant upon a customer. The Claimant had attended at the kiosk and asked if it was possible to print off some documents from a USB stick he was carrying. He was met with abusive and racist language from the attendant. The Claimant, having then left the kiosk, was followed out onto the forecourt by the attendant, and who then subjected him to a ‘brutal and unprovoked’ attack.
Whilst no doubt very sympathetic to the Claimant, who was described as ‘in no way at fault’, the trial Judge held that the employer supermarket were not vicariously liable for the actions of their employee. The Claimant, Mr. Mohamud, appealed.
The Court of Appeal re-iterated the test set out in the House of Lords decision in Lister -v- Hesley Hall Limited  1 AC 215, of whether the assault was so closely connected with the employment that it would be ‘fair just and reasonable’ for there to be vicarious liability. That, on one view, it might be ‘fair, just and reasonable’ to find vicarious liability in all the circumstances was not sufficient. What was important was the closeness of the connection between the employment and the assault.
The Court noted the trial Judge’s findings that it was no part of the attendant’s job to keep public order or exercise any form of authority over customers. They also observed that the fact the attendant was present at the premises in the course of his employment, and thus physically able to commit the assault, was not of itself sufficient.
Upon review of a number of the reported cases they noted that in those where a finding of vicarious liability was made there was some ‘additional or special risk’ connected to the assailant employee’s duties. For example:
- Fennelly v Connex South Eastern Limited  EWCA Civ 5568, in which a ticket inspector assaulted a customer who did not produce his ticket for inspection as requested.
- Vasey v Surrey Free Inns Plc  PIQR 373 and Mattis v Pollock (t/a Flamingos Nightclub)  EWCA Civ 887, which both involved assaults by nightclub doormen.
- Gravil v Carroll  EWCA Civ 689, assault by a rugby player in the course of a game.
- Wallbank v Wallbank Fox Designs Limited  EWCA Civ 25, (one of the joined appeals in Weddall, above) perhaps less obviously, where part of the assailant’s duties included listening to instructions from a superior, who he then over-reacted to and assaulted.
That particular feature was absent in Mr Mohamud’s case, and the Court of Appeal held that looking at the circumstances of the assault, and the nature of the employment, it would not be fair, just and reasonable to find the employers vicariously liable. Thus the Claimant’s appeal failed.
It is important to remember that whilst the issue of whether or not vicarious liability arises will always depend upon the facts of the individual case, it is a question of law and thus the previously decided cases, in particular those which are similar in nature, will always be of relevance.
7TH MARCH 2014