By Michael Nadin - Associate Solicitor The Coronavirus Job Retention Scheme (CJRS) was originally due…
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In a case which succinctly encapsulated the current state of the law on the vicarious liability of employers, an innocent customer who was savagely attacked by a petrol kiosk attendant on a supermarket forecourt has received the Court of Appeal’s ‘natural sympathy’ – but not a penny in compensation.
Ahmed Mohamud suffered serious head injuries when he was repeatedly kicked and punched by the attendant who was employed by WM Morrison Supermarkets plc at a branch in Birmingham. After stopping in to check his tyre pressures, Mr Mohamud had merely asked the attendant if he could print out some documents from a USB stick, but was met by a torrent of racist abuse.
He walked back to his car, but was pursued by the employee who opened the passenger door and punched him. When Mr Mohamud got out of his car to close the passenger door, the attendant leapt on him, punching him twice in the face before raining down punches and kicks on his prone body as he lay curled up on the petrol station forecourt.
Mr Mohamud suffered grievous head injuries, causing epilepsy, and still bears the mental scars of the March 2008 incident. He sued Morrisons for hundreds of thousands of pounds in damages but had his claim dismissed by a County Court judge. Dismissing his appeal against that decision, the Court ruled that, whatever the moral rights or wrongs of the case, a finding that the supermarket chain was legally responsible for its employee’s attack would be ‘a step too far’.
Lord Justice Treacy described the attack as ‘brutal and unprovoked’ and emphasised that Mr Mohamud was ‘in no way at fault’ and had not acted offensively or aggressively at any stage. However, the attendant had acted ‘purely for reasons of his own, beyond the scope of his employment’. He had inexplicably attacked Mr Mohamud in direct defiance of instructions ‘not to engage in any form of confrontation with a customer, even an angry one’.
The judge noted, “One has natural sympathy for Mr Mohamud who was the innocent victim of an unprovoked attack involving apparently very serious consequences for him. It can be appreciated that many would feel that, if the employee did what he did on the employer’s premises and at a time when the contact between the two men arose out of the fact that the employer was carrying on his business, the employer should be liable.
“However, our law is not yet at a stage where the mere fact of contact between a sales assistant and a customer…is of itself sufficient to fix the employer with vicarious liability.”
Lord Justice Christopher Clarke said, “If the question was simply whether it would be fair and just for Morrisons to be required to compensate Mr Mohamud for the injuries that he suffered, there would be strong grounds for saying that they should. The assault occurred on their premises; it was an assault by someone they chose to employ at a time when he was on duty. The customer was entitled to expect a polite response. At the least he could expect not to be assaulted by the staff of the business. Instead he got struck on the head by one of them and kicked when on the ground.
“In those circumstances, it could be said that the employer could fairly be expected to bear the cost of compensation; rather than that the victim should be left without any civil remedy, save against an assailant who was unlikely to be able to pay full compensation.”
However, the judge nevertheless ruled that to hold Morrisons liable for an apparently motiveless attack, carried out by an employee for reasons of his own and contrary to instructions, would be ‘a step too far’. He noted, “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.”
Whilst the employer was not held to be vicariously liable for the assault in the case, it does focus the spotlight on the need to have effective recruitment policies, so as to ensure that you are recruiting the right calibre of staff. It also demonstrates the need to regularly review your Health & Safety policies and ensure that risk assessments are carried out frequently especially when the nature of the role exposes employees to high levels of stress.