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In modern times, if an individual goes into a shop and interacts with a sales assistant and then suffers an assault in the course of a confrontation, should the actions of the sales assistant make the employer vicariously liable? 

Facts of this case

On 15th March 2008 Ahmed Mohamud (Appellant) visited Morrison 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 Mr Mohamud, who is of Somali descent, entered the kiosk and asked the staff member, 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 Mr Mohamud , but who, on the judge’s finding, were not involved in the subsequent violence.

After being abused Mr Mohamud 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 Mr Mohamud , 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 Mr Mohamud and subjected him to a serious attack involving punches and kicks while the Appellant was curled up on the petrol station forecourt.

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.

The findings of the Judge

The judge found that Mr Mohamud 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 also 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 Mr Mohamud 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 approach by the trail judge began 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 in this case in establishing this first stage as the relationship between Khan and the Morrison’s’ as that of employer to employee, and,
  • secondly  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.

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.

Appeal decision:

[53] “… something closer than a duty to engage with customers is required. ….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.”

[61] 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.

Summary

‘Where an employee’s duties included interaction with customers but did not involve any element of keeping public order or exercising authority over them, the employer is not vicariously liable for an assault by the employee on a customer.

The mere fact of contact between a sales assistant and a customer, which was plainly authorised by an employer, was not of itself sufficient to fix the employer with vicarious liability.’

Reference:

Mohamud v Wm Morrison Supermarkets Plc [2014] EWCA Civ 116 

Neutral Citation Number: [2014] EWCA Civ 116

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