Tuesday, 18 February 2014
VICARIOUS LIABILITY FOR RACIAL ABUSE
The facts: A Somali national was racially abused and viciously attacked by a petrol station shop attendant. The claimant had recently checked his tyre pressures in the forecourt and then visited the shop to ask if it offered printing services. He was followed out and assaulted by the attendant. Could the attendant’s employer’s be held vicariously liable?
The decision: No. The attendants job description involved serving customers and the assault had nothing to do with that role. The Court applied the two stage test for determining vicarious liability, as formulated in Lister v Hesley Hall Limited  1 AC 215 and Dubai Aluminium Co Limited v Salaam  2 AC 366. Whilst the employment relationship was obviously capable of giving rise to vicarious liability, it failed the second stage in that there was no clear connection between the employment and the wrongdoing: the employment did not create the risk that materialised, it was merely incidental.