JUDGMENT

Lord Toulson: (with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Reed agree)

[1] Vicarious liability in tort requires, first, a relationship between the defendant and the wrongdoer, and secondly, a connection between that relationship and the wrongdoers act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoers conduct. In this case the wrongdoer was employed by the defendant, and so there is no issue about the first requirement. The issue in the appeal is whether there was sufficient connection between the wrongdoers employment and his conduct towards the claimant to make the defendant legally responsible. By contrast, the case of Cox v. Ministry of Justice [2016] UKSC 10, which was heard by the same division of the court at the same time, is concerned with the first requirement. The judgments are separate because the claims and issues are separate, but they are intended to be complementary to each other in their legal analysis. In preparing this judgment I have had the benefit of Lord Reeds judgment in Cox, and I agree fully with his reasoning and conclusion.

[2] The question in this appeal concerns an employers vicarious liability in tort for an assault carried out by an employee. It is a subject which has troubled the courts on numerous occasions and the case law is not entirely consistent. In addressing the issues which it raises, it will be necessary to examine how the law in this area has developed, what stage it has reached and whether it is in need of significant change.

Facts

[3] In this case the victim was a customer. I will call him the claimant although he sadly died from an illness unrelated to his claim before his appeal was heard by this court. The respondent company is a well-known operator of a chain of supermarkets. It has premises in Small Heath, Birmingham, which include a petrol station. The petrol station has a kiosk with the usual display of goods and a counter where customers pay for their purchases. One of the companys employees was Mr Amjid Khan. His job was to see that the petrol pumps and the kiosk were kept in good running order and to serve customers.

[4] The claimant was of Somali origin. On the morning of 15 March 2008 he was on his way to take part with other members of his community in an event in London. While he was at the petrol station he decided to inquire whether it would be possible to print some documents from a USB stick which he was carrying.

[5] The trial judge, Mr Recorder Khangure QC, accepted in full the claimants account of what followed. The claimant went into the kiosk and explained to the staff what he wanted. There were two or three staff present. Mr Khan, who was behind the counter, replied by saying "We dont do such shit". 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. In carrying out the attack Mr Khan ignored instructions from his supervisor, who came on the scene at some stage and tried to stop Mr Khan from behaving as he did. The judge concluded that the reasons for Mr Khans behaviour