Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Two recent Supreme Court cases (Cox v Ministry of Justice and Mohamud v WM Morrison Supermarket plc) confirm that a relationship other than one of employment is, in principle, capable of giving rise to vicarious liability where an individual is integrated into the defendant’s operation and the defendant has created the risk of wrongdoing by assigning responsibility to the individual.
Mrs Cox was working as a catering manager at Swansea Prison when a prisoner working in the kitchen accidentally dropped a bag of rice on her, causing injury. She brought proceedings against the Ministry of Justice on the basis that the prison service was vicariously liable. The Court of Appeal held that the relationship between the prison and the prisoner was sufficiently similar to one of employment. On appeal, the Supreme Court agreed. It held that the wrongdoing was undertaken by a person whose activities were integrated into the business and the risk of the wrongful act occurring was caused by the prison assigning responsibility to that person. The prisoner, although not an employee, was required to work in the prison and had been specifically selected to work in the kitchen whilst under the direction of the prison staff. The Court emphasised that vicarious liability may readily extend to many situations in modern workplaces where workers may in reality be part of the workforce of an organisation, without having a contract of employment with it.
In Mohamud v WM Morrison Supermarket plc, Mr Mohamud stopped at a Morrison’s petrol station. A Morrisons employee behind the counter was rude to Mr Mohamud and ordered him off premises with a torrent of threatening and racist abuse. Mr Mohamud returned to his car but was followed and assaulted by the Morrisons employee. In the Court of Appeal, it was held that although the assault took place at the employee’s place of work and at a time when he was on duty, this did not establish a sufficiently close connection between the actions and his employment. On appeal however, the Supreme Court held that Morrisons were vicariously liable for their employee’s actions.
The Court commented that the analysis of vicarious liability must look at both a broad nature of the job entrusted to the employee and whether there is a sufficient connection between the employee’s position and his or her wrongful act to make it right, under the principle of social justice, to hold the employer liable for the wrongdoing. It considered that the employee’s job was to attend to customers and was within the ‘field of activities’ assigned to him by Morrisons. What happened thereafter was an unbroken sequence of events. The employee was attempting to remove Mr Mohamud from his employer’s premises and reinforcing his orders by violence. Although it was a gross abuse of his position, it was in connection with the business in which he was employed to serve customers. Morrisons had entrusted him with that position and it was therefore just that Morrison’s should be responsible for his abuse of that position.
In both cases, the Court considered the level of integration into the business of the wrongdoer and whether those activities had been entrusted to them by the organisation for the benefit of the organisation. The implications of these cases mean that vicarious liability can arise even where the relationship is not one of employment or where activities are undertaken that are integral to the business you operate and are entrusted by you to that individual.
For more information
For advice on employment issues such as vicarious liability please contact Kate Watkins.
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