Monday, March 03, 2014

Assaulting Customers - Not Part of the Morrisons Experience

The Court of Appeal has held  that Birmingham County Court was correct to reject a personal injury claim brought against Morrisons by a customer who was assaulted by a member of staff.

The incident occurred at a store in Small Heath (I make no comment.) Mr Mohamud went into the kiosk at the petrol station (which also contained a small convenience store, hence his request was not a daft one) enquiring about whether there were facilities for printing from a USB stick.

The employee to whom this enquiry was addressed, a Mr Khan, responded in an abusive manner, including using racist language. The Judge expressly found that Mr Mohamud had not at any stage behaved offensively or aggressively and  Khan's response was entirely unprovoked.

Khan followed Mr Muhamud to his car, despite having been told by his Supervisor to go back into the kiosk, and punched him twice in the head.

On the basis that Morrisons' pockets are deeper than those of  (the presumably now unemployed, if not worse) Khan, Mr Muhamud sued them for assault.

The issue was whether Morrisons were vicariously liable for the actions of Khan, which they would be if he was acting in the course of his employment.

The Judge at first instance held that they were not.

The acts were not sufficiently closely connected to Khan's employment to make it fair and just to hold Morrisons liable. Whilst Khan was employed to interact with the public, it was not part of his job to keep order and indeed he had specific instructions not to confront abusive or angry customers.

The Court of Appeal agreed. The fact that the assault took place on work premises was relevant but not conclusive. Khan's duties did not involve any sort of authority over members of the public and his actions were not directed towards attempting to do his job or advancing the interests of Morrisons. They took place purely for reasons of his own.

As such the appeal failed and Morrisons were not liable.

This does not mean that Mr Mohamud is left with no remedy at all. Depending upon the seriousness of his injuries he may have a claim under the Criminal Injuries Compensation Scheme, although this is generally less generous than the civil system of damages.      

It also does not mean that an employer can never be liable for an assault by an employee. A rugby club have been held liable in a previous case for an assault by a player during a match (on the basis that this is just the sort of thing the parties might expect to happen!) , nightclubs have been held liable for assaults by overzealous bouncers and a train company were liable when a railway ticket inspector put a passenger in a headlock (!) If Khan had been a security guard and had acted in the way that he did because he thought Mr Muhamud was up to no good then Morrisons could well have been liable.