Goodbye to vicarious liability's close connection test?
By paying lip service to Lister, the courts will shatter the close connection principle, writes Chris Pawlowska
Over 15 years ago, the House of Lords took a ground-breaking step in Lister v Hesley Hall  UKHL 22 to redirect the rules of vicarious liability. In overturning the Salmond test as the basis of determining the course of employment, it sought to widen recovery, especially in relation to intentional torts committed by employees who abused children in their care.
The parameters of Lister
The new test offered by Lord Steyn preferred the idea that there should be a sufficiently close connection between the work done and the tort committed so that it would be just and fair to make the employer vicariously liable. This was intended to avoid the perceived limitations of Salmond, which made it difficult to find child sex abuse by an employee, an unauthorised way of being a teacher, warden, carer,
etc.It was always going to be difficult to determine the outer parameters of this test. In the context of Lister, where a warden ran a home annexed to a school, there were few challenges in identifying a legitimately intimate work relationship with the boys. Some degree of intimacy and touching could easily be part of the warden’s work and the close connection, therefore, between legitimate and illegitimate touching was clear. It was also clear that the Law Lords thought it just and reasonable that vicarious liability should be found.
The attraction and the challenge of the close connection test was that it could widen an employer’s liability and extend it to a wide range of cases that were not related to child abuse. The consequence of this change was an opening of the floodgates in vicarious liability in relation to intentional tort claims.
The more generous judicial climate meant that many cases found their way before the courts. While some focused on child abuse cases (Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church  EWCA Civ 256 and The Catholic Child Welfare Society v The Institute of the Brothers of the Christian Schools  UKSC 56), many did not. Claimants sought to apply the new principles and often did so with some measure of success.
The long goodbye
The inherent judicial concern has always been with determining the nature of the ‘close connection’. Is there a need to show a genuine connection between the work done and the tort committed or are the courts increasingly concerned only with whether it is fair and just to find the employer vicariously liable and thus reason backwards on the issue of close connection?
In Mattis v Pollock  1 WLR 2158, a vicious attack, outside the workplace, by an off-duty doorman of a nightclub was found to be in the course of employment. The Court of Appeal took the view that encouragement of some measure of violence by the employer, who wanted a doorman ‘who could intimidate customers’, created the necessary close connection between legitimate and illegitimate workplace violence.
The court chose to see the attack not as off-duty and beyond the workplace, but as part of a seamless sequence of events that began earlier that evening when the doorman was still at work. This is quite a creative result, but the victim had been rendered paraplegic and the employer had employers’ liability insurance. It was undoubtedly fair to find the employer vicariously liable, but was there really the necessary close connection here?
In Wallbank v Wallbank Fox Designs  EWCA Civ 25, the court was concerned with violence between co-workers. Lord Justice Pill concluded that a violent reaction to a workplace instruction could be in the course of employment. It is a measure of how quickly the case law has moved on that we have accepted violence in response to a basic verbal instruction as an act that might be closely connected to our work. Is it really true that a violent reaction to an instruction is closely connected to the work, or that it is just and fair to hold an employer responsible?
This has repercussions for all sorts of frustrating workplace environments and it is not a big leap to extend this approach from the factory in Wallbank to office or retail spaces and from attacks between co-workers to attacks on the public. The presence of affordable workplace insurance, where employees are on duty, makes it more likely that there will be a finding of vicarious liability, even where the necessary close connection seems unreasonable or tenuous.
Field of activities
Most recently, the Supreme Court in Mohamud v WM Morrison Supermarkets  UKSC 11 continued this trend. In this case, an employee of a petrol kiosk owned by Morrisons committed an unprovoked attack on a member of the public who asked him a question about the kiosk’s printing facilities. He swore at him, followed him onto the forecourt, and subjected him to a serious attack.
In the Court of Appeal, Lord Justice Treacy took the view that there was an insufficiently close connection between a job that required interaction with the public and this act of attacking a customer. As a matter of common sense, this must be true. Even a cursory reflection on the work of a kiosk attendant could not be regarded as closely connected to an unprovoked, violent attack.
In the Supreme Court, however, Lord Toulson felt that the court must consider the ‘field of activities’ and the close connection test ‘broadly’. The employee was employed to ‘attend to customers and respond to their enquiries’. This he did in an inexcusable way, when he abused the customer and warned him not to come back. Adopting the device used in Mattis, Lord Toulson described the subsequent attack as part of an ‘unbroken sequence of events’.
This is a significant decision in weakening the role of the close connection test. In looking broadly at the field of activities in which an employee is engaged, the court is able to manipulate and interpret the range of an employee’s tasks to suit the preferred outcome of the case. If, as in this case, the employee was on duty, the attack was vicious, and there was workplace insurance, there would be every incentive to find vicarious liability.
In Lister, even Lord Millet’s more loose formulation, which was concerned with asking whether the risks of harm were reasonably incidental to the employment, required some proximity between the nature of the work and the tort committed. While he felt liability should arise in the context of a warden, with parental controls, abusing boys in his care, he made it quite clear that he would not have taken the same view if the boys had been harmed by a porter or groundsman. Although Lister’s parameters were unclear, a specific sense of proximity between work and harm was set out. Jobs which entailed some measure of physical intimacy or professional or emotional trust could be connected to a ‘field of activities’ that might lead to attacks or abuse.
Paying lip service?
A shocking attack committed by an employee, where there is employer’s liability insurance, might be an inducement to find vicarious liability but it might gradually devalue the need to show meaningful proximity between the work and the tort. If this happens, the court will simply be paying lip service to the principle of a close connection.
Cases in this area might end up turning on just one principle: whether vicarious liability in any particular case is reasonable. This is not new in tort but it is new in vicarious liability. That said, it might actually prove to be a little more honest than some of the recent decisions we have seen.
Chris Pawlowska is a solicitor and senior lecturer in law at the School of Law, University of Greenwich