Where the dividing line should fall in cases of vicarious liability has often troubled the courts. Vicarious liability is a legal doctrine which states that an employer is liable for the negligence of the employee. But there can be cases where no employer would have envisaged the employee acting in a violent or abusive manner. Should the employer be liable in such cases?
In the late 1990’s case of T v North Yorkshire CC, a headmaster’s sexual abuse of a child on a school trip was decided not to be within the scope of the headmaster’s contract of employment and therefore the local authority employer was not liable. For many years the approach of the courts was to only hold the employer liable for injuries to the Claimant in two sets of circumstances:-
(1) if the employer had wrongfully authorised the act in which the claimant was injured – this would be akin to an instruction along the lines of “If a member of the public is rude to you at work, thump them”
(2) if the injuiry was sustained through an unauthorised mode
of carrying out an authorised act – this would be akin to an instruction ” You, Mr Bouncer, are free to restrain physically any person from entering this nighclub if they are drunk”, in circumstances where Mr Bouncer then goes on to use excessive force in order to do so.
In the case of Lister v Hesley Hall Ltd in 2001, a warden of a care home for teenagers sexually abused the children in his care. He was sentenced to 7 years imprisonment. The children then brought claims for personal injuries against the warden’s employer. The court decided the employer was liable, contrary to the position in T v North Yorks two years earlier. The warden was employed to care for the children and provide a nurturing environment and the warden’s abuse was so closely connected with the reason for his very employment that the employer was liable.
There have now been two recent cases in this area.
In Mohamud v Morrisons Supermarkets (2014) an employee working in a petrol station kiosk assaulted a customer, badly. The court said that there must be a sufficiently close connection between the employment and the wrongful assault so that it is fair to hold the employer liable. In this case the employer escaped liability.
In Cox v Ministry of Justice (2014) a prison inmate was “employed” in the kitchen and dropped a bag of food produce on the catering manager, causing her injuries. The inmate alleged this was not deliberate! She brought a compensation claim against the Government department which ran the prison. The court decided that although the inmate was not actually employed his position was akin to employment since he worked under the direction of the prison in order to help run the prison kitchen. The court decided that the negligence of the inmate was so close to the employer that the employer was liable even though technically the inmate was not an employee.
The starting point for this type of case is to consider a Canadian decision which has been praised for its clear analysis of the law. The case is Bazley v Curry (1999).
