A couple of years ago I commented on a case where Morrisons were found by the Court of Appeal not to be liable to a customer who was physically assaulted by a member of staff at their petrol station in Small Heath.
The Supreme Court has now in fact overturned that decision and has held that Morrisons were liable after all.
Sadly the victim, Mr Mohamud, had died of unconnected causes in the meantime so the case was being continued on behalf of his Estate.
His legal representative argued that the Courts should apply a broader test of whether an employer was liable for the actions of an employee that the “close connection” test which has been laid down in previous cases, and should in fact look at whether a reasonable observer would consider the employee to be acting as a representative of the employer at the time.
After a detailed review of the law, Lord Toulson in his leading Judgment held that there was nothing wrong with the “close connection” test – it had simply been wrongly applied in this case. The fact that the assailant had come out from behind the counter did not mean that he had “metaphorically taken off his uniform.” There had been an unbroken sequence of events commencing with him being abusive from behind the counter and it was right in that situation for Morrisons to be liable, even though they did not condone his actions.
The Supreme Court gave Judgment in another similar case at the same time, where they agreed with the Court of Appeal that the Prison Service was liable when a prisoner dropped a sack of rice on a member of kitchen staff’s back while they were both working in the prison kitchens.
Cases of this type are all about the allocation of risk and who should bear it. Where an innocent member of the public has been harmed there will always be a temptation to decide that the liability is most fairly borne by the employer, especially when employer’s liability insurance is compulsory.