Thank you, Phillip. No doubt there is an interesting history and
background for academic citations which some list members might know and
some might even be able to share. At the Journal of Professional
Negliegence event in London in September, some might have met some of
the more public law team involved for the respondents in Cox.

The two cases partner up in an interesting way. Cox, sole judgment by
Lord Reed, concerned who was sufficiently akin to an employee (in the
traditional language anyway) while Mohamud, leading judgment by Lord
Toulson, with an addendum by Lord Dyson, dealt with what conduct was
within the scope of employment. The judgments expressly interrelate in
their opening paras. It is quite remarkable that the UKSC has achieve
two almost unanimous judgments, on vicarious liability so neatly. We
might all value the discussion and ideas brought out by fuller
judgments, but there is value in cohesion as well. These were single
judgments, rather than composite ones, though doubtless there was
discussion and debate as it wen through the drafting process. Lord
Toulson's judgment is a classic from a judge who values legal history,
and Lord Reed's is a typical one of his, I think, careful and very
closely reasoned on the facts of the work that the prisoners did in
kitchens. The judgments are also interesting for the idea that the UKSC
has had to come back to Vicarious Liability again, and is now, in two
judgments, essentially re-applying two relatively recent decisions of
itself/the HL.

For my part, after a quick perusal:

1) Cox, applying /Christian Brothers/ (Various Claimants v Catholic
Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1) in some detail,
the prison service is vicariously liable for the act of a
prisoner in the course of his work in a prison kitchen, where
the act is negligent and causes injury to a member of the prison staff.
A catering manager was injured by a bag of rice negligently being
dropped on her. Most of the judgment is spent either a) discussing Lord
Phillips' judgment in Christian Brothers, or showing why, on the facts,
the prisoners were persons for whom the prison service were vicariously
liable. The argument was that the prisoners, performing work that would
otherwise cost the public purse (instead, being paid £11.55 a week, and
theoretically liable for tax and pensions on this) and by reason of the
level of their selection, training and integration, persons for whom the
prison service were vicariously liable. Other arguments about the
special role of the prison service, were dismissed. Lord Reed cited John
Bell to the effect that the tortfeasoer was "placed by the organisations
in question, as part of their mission, in a position in which [he]
committed a tort whose commission was a risk inherent in the activities
assigned to [him]. Of course, what risks are inherent to which
activities and which employments is a difficult question, but on the
facts I personally don't find this one surprising. [35] "the fact that a
prisoner is required to serve part of his sentence in prison, and to
undertake useful work there for nominal wages, binds him into a closer
relations
hip with the prison service than would be the case for an employee. It
strengthens, rather than weakens, the case for imposing vicarious
liability." Other points of interest include the idea that the "broader
question" of what is fair, just and reasonable should always be asked,
but Lord Reed thought that was the very point of Lord Phillips' test in
Catholic Brothers and, in addition "On considering the matter, however,
I do not regard the conclusion which I have reached as unreasonable or
unjust. Those adjectives might more aptly describe a situation in which
Mrs Cox’s ability to obtain compensation for the injury she suffered at
work depended entirely on whether the member of the catering team who
dropped the bag of rice on her back happened to be a prisoner or a
civilian member of staff." One wonders how working practices in prisons
might have changed if the appeal had been allowed? Would there have been
a perverse incentive to have prisoners do any work where a vicarious
liability claim might have arisen and thus been frustrated? I'd like to
think that was far-fetched, but there are lots of things I'd like to
think. Watch also the 'Fat Boy' reference in [43].

There was also a classic restatement of the English orthodoxy of the
relevance of insurance to tort liability: [20] "The mere possession
of wealth is not in itself any ground for imposing liability.
As for insurance, employers insure themselves because they are liable:
they are not liable because they have insured themselves. On the other
hand, given the infinite variety of circumstances in which the question
of vicarious liability might arise, it cannot be ruled out that
there might be circumstances in which the absence or unavailability of
insurance, or other means
of meeting a potential liability, might be a relevant consideration.

2) Mohamud, finding on the law that the "close connection" test was
still good law (while uncertain in practice, necessarily so, and no more
uncertain, it was said, than the "respresentative capacity" test
otherwise proposed). Nonetheless, the appellants won on the facts, with
the appeal being allowed. It's not clear that this suggests a more
generous test on the facts even under the close connection reading, but
it might. The facts here were that the victim had been verbally abused
at a petrol station by an employee. Lord Toulson's judgment summarises
these at [48]:

In the present case it was Mr Khan’s job to attend to customers and to
respond to their inquiries. His conduct in answering the claimant’s
request in a foul mouthed way and ordering him to leave was inexcusable
but withinthe “field of activities” assigned to him. What happened
thereafter was an unbroken sequence of events. It was argued by the
respondent and accepted by the judge that there ceased to be any
significant connection between Mr Khan’s employment and his behaviour
towards the claimant when he came out from behind the counter and
followed the claimant onto the forecourt. I disagree for two reasons.
First, I do not consider that it is right to regard him as having
metaphorically taken off his uniform the moment he stepped from behind
the counter. He was following up on what he had said to the claimant. It
was a seamless episode. Secondly, when Mr Khan followed the claimant
back to his car and opened the front passenger door, he again told the
claimant in threatening words that he was never to come back to
petrol station. This was not something personal between them; it was
an order to keep away from his employer’s premises, which he reinforced
by violence. In giving such an order he was purporting to act about his
employer’s business. It was a gross abuse of his position, but it was in
connection with the business in which he was employed to serve
customers. His employers entrusted him with that position and it is
just that as between them and the claimant, they should be held
responsible for their employee’s abuse of it.

The sartorial reference to "seams" within events (as much as to
metaphorically taking off one's uniform) is quite interesting. It
appears to be a factual analysis of events being of a different kind
such that they are joined only by the passage of time, perhaps with
gaps. This is one mode of analysis made more likely if, as here, the
initial abuse was within the course of serving the victim in the petrol
station shop. It is then a matter of continuing, or not, within the
course of employment. I don't quite know what will create a "seam".
Surely the passage of time might, but just because events unfold quickly
is not a reason for the employer always to be liable. One might also say
that there is a clear difference between abusive language and physical
violence. As for the second of Lord Toulson's reasons, again, it is
interesting in its possible scope. [5] of Lord Toulson's original
description of the facts, had only said that that V should never come
back. It is not entirely clear that this was in /close/ connection to
the business in which he was employed to serve customers, it seemed to
be doing the opposite, and it appeared to be a personal feeling of the
tortfeasor, Mr Khan, nothing to do with the employer's aims or business.
I don't actually disagree with the outcome, but it does all highlight
how difficult and subjective these decisions are.

"...Mr Khan, who was behind the counter, replied by saying “We
don’t do such shit” [meaning print from a USB stick]. The claimant
protested at being spoken to in that manner. Using foul,
racist and threatening language, Mr Khan ordered the claimant to leave.
The claimant walked out of the kiosk and returned to his car by the air
pump. He was followed by Mr Khan. The claimant got into his car and
switched on the engine, but before he could drive off Mr Khan opened the
front passenger door and told him in threatening words never to come
back. The claimant told Mr Khan to get out of the car and shut the
passenger door. Instead, Mr Khan punched the claimant on his left
temple, causing him pain
and shock. The claimant switched off the engine and got out in order to
walk round and close the passenger door. At this point Mr Khan again
punched him in the head, knocked him to the floor and subjected him to a
serious attack, involving punches and kicks, while the claimant lay
curled up on the petrol station forecourt, trying to protect his head
from the blows."

All best wishes,

Matt

On 02-Mar-16 11:21 AM, Phillip Morgan wrote:
> Dear All,
>
> This morning the UKSC handed down two new decisions on vicarious
> liability, /Cox v MoJ, /and /Mohamud v Morrison/:
>
>
> https://www.supremecourt.uk/cases/docs/uksc-2014-0089-judgment.pdf
>
> https://www.supremecourt.uk/cases/docs/uksc-2014-0087-judgment.pdf
>
> Kind regards,
>
> Phillip
>
> --
>
> _______________________
>
> Phillip Morgan,
> Lecturer in Law,
> York Law School,
> The University of York,
> Freboys Lane,
> York,
> YO10 5GD,
> United Kingdom,
> https://www.york.ac.uk/law/staff/morgan/
> https://www.york.ac.uk/law/