This follows the SC's decision in Christian Brothers.
The question in Cox was: what sort of relationship has to exist between an individual and a defendant, before the defendant can be made vicariously liable for the individual's conduct?
Mrs Cox was injured by a prisoner working in a prison kitchen. The SC found that Mrs Cox's employer, the Ministry of Justice, was vicariously liable for the prisoner's negligence, even though he was not an employee of the prison. The SC identified two conditions necessary for vicarious liability to arise in non-employment cases:
The SC found that here, the prisoner was integrated into the operation of the prison, as providing meals to prisoners is one of the activities carried out in furtherance of the prison service's aims. The prisoner worked at the direction of prison staff, and the risk was created by the prisoner being placed into that situation.
The question in Mohamud was: what connection is required between the relationship and the conduct so that vicarious liability should be imposed?
Mr Mohamud was subjected to verbal abuse, threats and physical violence by Mr Khan, a petrol station employee, after Mr Mohamud had asked Mr Khan to print some documents for him. The SC confirmed that two questions must be considered:
In this case, Mr Khan's job was to attend to customers and to respond to their enquiries. Responding to Mr Mohamud's request (regardless of how inexcusable his response might have been) was within the activities assigned to him. The subsequent physical violence formed an unbroken chain of events from the initial response. Mr Khan's order to leave the premises, which had been re-enforced with violence, had been sufficiently connected to his job to the extent that the employer should be held responsible.
The decision in Cox is a useful reminder that there does not need to be an employment relationship for vicarious liability to arise. The category of people for whom employers may be liable is potentially broad and may include secondees, agency workers and work experience students. This raises the importance of inductions and ensuring non-employees sign up to codes of conduct and health and safety policies.
The SC in Mohamud confirmed that the 'close connection test' continues to apply to vicarious liability and its application will be entirely fact dependent. Employers cannot simply rely on an employee's actions which appear as outrageous as those in Mohamud to avoid vicarious liability, as the court may still find a close connection with the employee's functions. Again, the case illustrates the importance of having a clear code of conduct and sufficient training to prevent such incidents from arising.