Of Priests, Prisoners and Petrol Station Attendants

Lee Mei Hooi examines the recent developments in the law of vicarious liability in the United Kingdom.
In Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34, Lord Nicholls described the principle of vicarious liability as one which is “at odds with the general approach of the common law … that a person is liable only for his own acts”.
Vicarious liability is an artificial legal construct which seeks to impute liability on a third party for the tortious acts or omissions of another, by virtue of the existence of a special relationship between the third party and the tortfeasor. Generally, the question of vicarious liability arises where the victim of a tort seeks to make the employer of the tortfeasor liable for the damage suffered by the victim, although this is not the only category of vicarious liability. In this regard, the requirements that must be established are:
(1)     the establishment of an employer-employee relationship which is capable of giving rise to vicarious liability; and
(2)     the tort must be committed in the course of, or within the scope of employment.
In recent years, the English Courts have had several opportunities to re-consider both of the above requirements, ultimately leading to the expansion of the doctrine – a trend that is made clearer by the two recent landmark decisions of the English Supreme Court in Cox v Ministry of Justice [2016] UKSC 10 (“Cox”) and Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 (“Mohamud”).
It goes without saying that relationships within the traditional employment context where an employee enters into a contract of service with an employer for payment or reward would fulfil the first requirement to establish vicarious liability. The English Courts, however, have taken this one step further, holding that various types of ‘quasi-employment’ relationships may suffice to fulfil this first requirement.
Of priests and churches
In the English Court of Appeal case of JGE v English Province of Our Lady of Charity and another [2012] EWCA Civ 938 (“JGE”), the question arose as to whether the relationship between a priest and the Trustee of the Catholic Diocesan Trust could give rise to vicarious liability. There was no contract of employment between the priest and the Trust; neither could the priest be considered an employee of the Church. In fact, there was never any intent to create a legal relationship between them. However, the Court of Appeal nonetheless found that the Trust could be held vicariously liable for the tortious acts of a priest who had sexually abused the victim, on the basis that the relationship between the priest and the Trust was “close enough and so akin to employer/employee as to make it just and fair to impose vicarious liability.”
JGE was considered by the Supreme Court in Catholic Child Welfare Society & Ors v Various Claimants [2012] UKSC 56 (“Christian Brothers”) – another case involving sexual abuse of children by clergymen, this time by brothers who taught at a school approved by the Institute of the Brothers of the Christian Schools. Following JGE, Lord Phillips found that the Institute was vicariously liable for the brothers’ abuse despite the fact that it was not their employer. His Lordship then examined the policy reasons for finding vicarious liability within an employment relationship and set them out as follows:
i)     The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
ii)      The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
iii)     The employee's activity is likely to be part of the business activity of the employer;
iv)     The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
v)      The employee will, to a greater or lesser degree, have been under the control of the employer.
After considering the relationship between the brothers and the Institute in light of the afore-mentioned principles, Lord Phillips concluded that their relationship was “sufficiently akin to that of an employer and an employee” to satisfy the first test of vicarious liability.
Of prisoners and jailers
In the recent case of Cox, the Supreme Court again had the opportunity to consider what amounted to a relationship “akin to employment”. In this case, one Mrs Cox worked as the catering manager at HM Prison Swansea. Whilst she was working in the prison kitchen alongside the prisoners assigned to kitchen work, a particular prisoner, Mr Inder, dropped a sack of rice onto her back, causing her injury. There was no question that Mr Inder was negligent. Mrs Cox therefore brought a claim against the Ministry of Justice that was in charge of running the prison, arguing that the prison service was vicariously liable for the negligence of Mr Inder.
In a unanimous judgment, the Supreme Court found that the prison service was vicariously liable for Mr Inder’s negligence as there existed a quasi-employment relationship between the prison service and the prisoner. In coming to its conclusion, the Supreme Court examined in detail Christian Brothers and applied the five policy factors laid down by Lord Phillips, and found that:
(1)     the prison service carried on activities in furtherance of its aims, and the fact that those aims were not commercially motivated was irrelevant; the fact that the prisoners were integrated into the operation of the prison and that the kitchen work assigned to them formed an integral part of the activities of the prison was sufficient;
(2)     the prisoners were placed by the prison service in a position where there was a risk that they may commit a variety of negligent acts; and
(3)     the prisoners worked under direction of the prison staff.
The Supreme Court also noted that the fact that the prison service was under a statutory duty to provide prisoners with useful work was not incompatible with the imposition of vicarious liability. In fact, the Supreme Court stated that it was irrelevant as the prison service nonetheless had a “meaningful power of selection” in deciding whether or not to place a particular prisoner in the kitchen or in another position elsewhere in the prison.
The issue of quasi-employment relationships aside, the second requirement for imposing vicarious liability, namely that the tort must be committed “within the scope of employment” has similarly been extended in recent years.
The “close connection” test, as laid down by the House of Lords in the leading case of Lister and others v Hesley Hall Ltd [2001] UKHL 22 (“Lister”), requires the employee’s torts to be “so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.
The question of whether any particular act would fall within the scope of employment is a fact-based test that differs in every case. Acts that have been found to fall within the scope of employment include fraud (Dubai Aluminium Company Ltd v Salaam and others [2002] UKHL 48), sexual abuse by priests or teachers (JGE and Christian Brothers) and outright racist violence in the most recent case of Mohamud.
In Mohamud, the plaintiff, Mr Mohamud, a man of Somali descent, had entered the defendant’s petrol kiosk and requested the defendant’s employee, one Mr Khan, to print some documents from his USB stick. Mr Khan responded to the request in an abusive, racist fashion.
Following the unpleasant exchange, Mr Mohamud returned to his vehicle only to be immediately followed by Mr Khan, who opened the front passenger door of the car and shouted violent abuse at him, including telling him to “never come back”. When Mr Mohamud got out of the car, Mr Khan then subjected him to a “brutal and unprovoked attack”.
The English Court of Appeal in a decision reported in [2014] EWCA Civ 116, found for the defendant and held that vicarious liability could not be established on an application of the Lister test. It noted that the employer would only be liable if the risk was one which was inherent in the nature of the business and mere contact between a sales assistant and a customer was insufficient.
The English Supreme Court, however, overturned the decision of the Court of Appeal, also on the application of the Lister test, and found that a sufficiently close connection existed between Mr Khan’s actions and his employment. Lord Toulson stated that one had to first determine what functions or “field of activities” were entrusted by the employer to the employee, and secondly, whether there was sufficient connection between the position of employment and the employee’s wrongful conduct to make it right for the employer to be held liable.
While it was acknowledged that Mr Khan was not given duties that involved a clear possibility of confrontation or placed in a situation where an outbreak of violence was likely, the Supreme Court nonetheless found a sufficient connection as, among others:
(1)     it was Mr Khan’s job to attend to customers and to respond to their enquiries; his conduct in answering the claimant’s request with abusive language and ordering him to leave was inexcusable but still within the “field of activities” assigned to him;
(2)     Mr Khan’s actions had occurred in one long unbroken chain, whereby he had immediately followed the claimant back to his car and told the claimant in threatening words that he was never to come back to the petrol station; and
(3)     the fact that Mr Khan gave the claimant an order to keep away from his employer's premises, reinforced by violence, illustrated the fact that he was “purporting to act about his employer's business.
The Supreme Court also held that Mr Khan’s motive was entirely irrelevant and the fact that he was clearly motivated by personal racism rather than a desire to benefit his employer's business did not matter in finding that a sufficiently close connection existed for the purposes of establishing vicarious liability.
It is evident from the cases reviewed that the traditional boundaries of the law on vicarious liability in the United Kingdom have been extended in recent times. In the words of Lord Phillips in Christian Brothers, the “law of vicarious liability is on the move”, and Lord Reed in Cox, “has not yet come to a stop”.
The question as to whether a quasi-employment relationship, such as those that existed in Christian Brothers and Cox, would suffice to establish vicarious liability, is one which has yet to be considered by the Malaysian Courts.
Although the Malaysian Court of Appeal in Zulkiply bin Taib & Anor v Prabakar a/l Bala Krishna & Ors and other appeals [2015] 2 MLJ 607 had accepted the Lister test, it remains to be seen whether the Malaysian Courts will extend the “close connection” test to the extent which the English Supreme Court had in Mohamud.
It remains to be seen if the Malaysian Courts will follow the new trend established by the courts in the United Kingdom when the opportunity arises.