Tortfeasor frolic

Jason Beer KC, is the lead counsel for the Wyn Williams enquiry into the iniquities of Post Office and their hounding and harrying of sub-postmasters [prev]. He's just, justifiably, been called Barrister of the Year . . . and been given an awkward doodad and a glass of bubbly. He works from / for / at 5 Essex Chambers; I idly looked at the back catalogue of their youtube channel. In 2020, in lockdown and all WFH, they put out 'The Sofa Series': some 40min pieces-to-camera about aspects of law. What's not to love about a Sofa Series? I live on / for / at my sofa. I started with 'Vicarious Liability' and watched the whole thing through. Not quite on the edge of my seat, like, but engaged.

My father was a career naval officer, sometime CEO of a mobile, dangerous, battleship-grey enterprise with 600 men under his command. He was very much of the mindset that the buck stopped with him, even if he was asleep or ashore when any untoward event happened. He was quite judgmental [last para] about the Master of the Herald of Free Enterprise when that ship sank at Zeebrugge in 1987. If there was any vicarious liability on HMS Fearless, my dad would suck it up.

Two of the key UKSC rulings on vicarious liability concern the British supermarket chain Wm Morrison. Together they help lower courts set boundaries upon the extent to which corporations and institutions are liable at law for the iniquities of their employees.

Mohamud v W M Morrison Supermarkets [2016] UKSC 11

In 2008, Ahmed Mohamud [R] stopped into a Morrison petrol station and kiosk. On his way to a protest meeting in London, he asked if there was anywhere he could get some images printed from this here USB stick. The fellow behind the counter, Amjid Khan, refused to engage, and told Mohamud to leave with a spatter of racist epithets. Not content with that, Khan followed the uncustomer out to his car continuing to abuse him; opened the passenger door and landed a punch on Mohamud's head; went round the driver side of the car and duffed Mohamud up good and proper.

Nobody doubted that Khan was a Tortfeasor ['e done 'im wrong same legalese root as malfeasance] to / of / at Mohamud: the issue at law is whether he was on "frolic of his own" OR "furthering, however misguidedly, the interests of their employer" if the latter, then Morrisons is vicariously liable. The various lower courts had shillied and shallied citing different precedents in Case Law. The UKSC is at pains to make their judgments clear not only to lawyers in future lower courts but also to The Press and The Public. Their 2 page press summary explains that they key to (Mohamud v Morrison) is "close connection". Khan was employed by Morrison for customer service and there was an unbroken sequence of events from refusing to look at the USB-stick to putting the boot in outside.

a) I don't know whether the continued use of 'frolic' or 'tortfeasor' as technical terms is more out of touch with today's sensibilities b) justice delayed is justice denied hmmm? It took Ahmed Mohamud eight [8] years to get his vindication and he died in the interim: "Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets plc (Respondent) [2016] UKSC 11". Four years later Morrison was in the UKSC dock again.

W M Morrison Supermarkets v Various Claimants [2020] UKSC 12

In this case, the rogue employee was found to be on a "frolic of his own" not least because it is very difficult to see how he could have been "furthering, however misguidedly, the interests of their employer". The Press Summary tells how Andrew Skelton, an internal auditor at Morrison, felt aggrieved at his internal treatment [nobody racially or otherwise abused him, let alone beat him up]. Later, tasked to deliver 'the books' to the company's external auditor, Skelton took a copy of the data and uploaded to the internet all the salaries, PPS #s, bank details and home addresses of all employees. He also kited the data to three separate newspapers, who declined to publish. 

The Various Claimants in the case, employees all, felt that a) the Data Protection Act 1998 had been breached [clearly it had] b) as well as Skelton, Morrison was vicariously liable for the failings of its internal auditor. The UKSC disagreed and let Morrison off the hook. Skelton was banged up for eight [8!] years. A bit of google suggests that in Brum, you get eight years for: a) assault with a meat cleaver, b) dealing class-A drugs, c) shotgun attack on business premises.  I cannot discover what happened to Amjid Khan beyond being sacked by Morrison.

It's a bit of a cheap shot to smirk about the failings of Morrison HR in hiring two tortfeasors perps who brought the company into disrepute (and cost the company £2million to fix Skelton's data-breach). Morrison have 100,000 people on payroll, guessing that 2 / 100,000 is a no higher rate of bad-apple than in the general population. I don't think that Morrison should be held to a higher standard than say public representatives in the Irish Dáil - rate 1/ 160.