Should employers be held accountable for the actions of their employees who act on a “frolic of their own” during the course of their employment?

I have recently been instructed in a case whereby my client was assaulted by a bus driver in an unprovoked attack as he left the bus. We pursued a claim against the bus company on the basis that they are vicariously liable for the actions of their employees. We have unsurprisingly received a denial of liability on the basis that they cannot be held liable for the ‘frolics’ of their employee and that the bus driver was acting outside the scope of his employment when he attacked my client.

Under the law of vicarious liability it is well established that where employee’s act on a “frolic of their own”, i.e do something that is outside the scope of their employment, then the employer should not be held vicariously liable for it.

What does “frolic of their own” actually mean? Over recent years, the courts have certainly widened the scope on vicarious liability.

The Supreme Court gave a landmark judgement in the case of Mr AM Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11. Mr Khan was a petrol attendant at a Morrison’s petrol station. Mr Mohamud attended to Mr Khan and asked Mr Khan if he could as a favour, print off some documents that were stored on a USB memory stick. Mr Khan directed foul and abusive language towards Mr Mohamud. Mr Mohamud left and went to his car but Mr Khan followed him from behind and attacked him.

At first instance, it was held that there was not a sufficiently close connection between what Mr Khan was employed to do and assaulting a customer.  Mr Khan had embarked on “a frolic of his own” and therefore his employer was not responsible for his actions.  However the Supreme Court decided differently and held that Morrisons were indeed vicariously liable for Mr Khans actions. The job assigned to Mr Khan was to attend to customers and respond to their enquiries. Mr Khans conduct in responding with abuse was deemed to have been unacceptable and inexcusable but it was held that interacting with customers was within the “field of activities” that were assigned to him by Morrisons.  Mr Khan was not to be taken to have metaphorically “taken off his uniform” the moment he stepped over the counter. Although it was acknowledged that Mr Khan’s behaviour was a gross abuse of his position, it was nevertheless held to have been in connection with the business in which he was employed to serve customers and Morrisons were held liable.

Although each case is to be decided individually on the facts of each case, the case of Morrison certainly provides some hope to Claimants in successfully pursuing a civil claim for damages against the employer even in circumstances where the employee has acted in a completely unforeseeable manner.

However, in order to protect the Claimants position, another course of action for Claimants would be to submit a Criminal Injuries Compensation Authority (CICA) claim but this is subject to certain criteria that must be met and a tariff applies.

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