- Created by: channyx
- Created on: 20-03-20 15:47
There was nothing wrong with the "close connection" test of vicarious liability adumbrated in Lister v Hesley Hall Ltd and the law would not be improved by a change of vocabulary. Applying that test, the employer of a petrol kiosk attendant who had subjected a customer to an unprovoked assault was liable for his actions.
A supermarket customer appealed against a decision respondent supermarket was not vicariously liable for an assault perpetrated by one of its employees.
The customer had attended a petrol station kiosk run by the supermarket and had approached one of the staff members (K) with an enquiry. K, whose job was to serve customers and see that the petrol pumps and kiosk were kept in good running order, responded with foul-mouthed abuse and ordered the customer to leave. He then followed him onto the forecourt where he told him to keep away and subjected him to a violent and unprovoked assault. The customer brought proceedings against the supermarket, claiming that it was vicariously liable for the assault. The trial judge held that it was not liable because there was no sufficiently close connection between the assault and what K was employed to do. The Court of Appeal upheld his decision, finding that while K's employment involved interaction with customers, that was insufficient to fix the supermarket with vicarious liability for his violence: his duties did not involve him being placed in situations where there was a clear possibility of confrontation.
The customer submitted that there should be a new test of vicarious liability in which the courts applied a "representative capacity" rather than a "close connection" test. He argued that the question should be whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer at the time of committing the tort.
Held: Appeal allowed.
(1) After reviewing the development of the doctrine of vicarious liability, the court indicated that the "close connection" test adumbrated in Lister v Hesley Hall Ltd and Dubai Aluminium Co Ltd v Salaam had been followed in a line of cases, including several at the highest level. There…