Morrisons 'not liable' for assault


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Customers have been warned by senior judges that they are unlikely to be able to claim compensation against supermarket giants if they are assaulted and injured by store employees.

The warning comes in the case of Ahmed Mohamud, 45, who suffered a "brutal and unprovoked" assault.

Three Court of Appeal judges unanimously rejected Mr Mohamud's claim for compensation for the injuries he suffered when he went to the petrol station kiosk at a Morrisons supermarket branch in Small Heath, Birmingham, in March 2008.

Mr Mohamud says he still suffers headaches and trauma after being punched in the head by a kiosk assistant and kicked while on the ground, receiving a fractured elbow.

He was seeking six-figure damages.

Rejecting his claim against the supermarket, a judge said that if the question was simply whether it would be "just and fair" for Morrisons to be required to compensate "there would be strong grounds for saying that they should".

The judge said in the circumstances of the "apparently motiveless attack on a customer who was no way at fault" it could be said that the employer could fairly be expected to bear the cost of compensation, rather than the victim having to sue his assailant "who was unlikely to be able to pay full compensation".

But that was not the legal test, Lord Justice Christopher Clarke said.

The question was whether there was "sufficient connection" between the assault by kiosk employee Amjid Khan and the nature of his duties "to make it fair and just to hold the employer vicariously liable".

The fact that Mr Khan's job included interaction with the public did not, by itself, provide that connection, the judge declared.

Case law showed there had to be some additional factor to establish vicarious liability, such as an employee being required to keep order, as in the case of nightclub doormen.

Dismissing the claim brought by Mr Mohamud, of Sugden Grove, Highgate, Birmingham, the judge said: "If Morrisons were liable it would mean that in practically every case where an employee was required to engage with the public, his employer would be liable for any assault which followed on from such an engagement.

"That appears to me to be a step too far.

"The work of kiosk employee carried with it no special risk of violence being used against customers.
"Nor have we any reason to suppose that assaults of this type and in these circumstances are other than rare events."

Two other appeal judges, Lady Justice Arden and Lord Justice Treacy, also rejected Mr Mohamud's claim.

Mr Mohamud had appealed against a Recorder's decision in November 2012 at Birmingham Civil Justice Centre.

Mr Recorder Avtar Khangure QC described the attack as brutal and unprovoked.

He said Mr Mohamud "was in no way at fault and had not behaved offensively or aggressively at any stage" and Mr Khan's actions "appear to have taken place purely for reasons of his own".

But he ruled that, even though Mr Mohamud had been assaulted by one of its employees, Morrisons were not vicariously liable.

Adam Ohringer, representing Mohamud, told the appeal court there had been a heated verbal exchange which ended with Mr Mohamud walking back to his car and the enraged kiosk assistant following him.

Appeal judge Lord Justice Treacy described in his judgment how Mr Mohamud, who was of Somali descent, had entered the kiosk after stopping to check his tyre pressures and asked Mr Khan if it was possible to print off some documents which were stored on a USB stick.

Mr Khan "responded in abusive fashion, including racist language", and it appeared that two other employees had joined in the abuse, the judge said.

When Mr Mohamud returned to his vehicle, Mr Khan followed him and opened the front passenger door, shouted violent abuse and punched him to the head after being told to get out of the car.
When Mr Mohamud got out to close the passenger door he was again attacked by Mr Khan, who punched him twice to the head.

"Khan then leapt on the appellant and subjected him to a serious attack involving punches and kicks while the appellant was curled up on the petrol station forecourt," the judge added.

The judge said at the time of the assault, Khan was being encouraged to go back into the kiosk by his supervisor, who had earlier told him not to follow Mr Mohamud.

The judge said: "It can be appreciated that many would feel that, if the employee did what he did on the employer's premises and at a time when the contact between the two men arose out of the fact that the employer was carrying on his business, the employer should be liable.

"However, in my judgment, our law is not yet at a stage where the mere fact of contact between a sales assistant and a customer, which is plainly authorised by an employer, is of itself sufficient to fix the employer with vicarious liability."

Agreeing, Lady Justice Arden said Mr Khan was not instructed by his employers to do anything about drivers who had parked on the forecourt and who were not using or interfering with petrol pumps.

"So Mr Khan's assault of the appellant did not arise out of what he had been employed to do.

"The assault should never have happened, but the employer is not to be held vicariously liable for it."