Every first-year law student in Indian and English law schools is taught the famous ‘Salmond’ test of ‘course of employment’ for the purposes of vicarious liability in tort: was the employee’s wrongful act either actually authorised by the master or an unauthorised mode of doing an authorised act? This test survived for many years and works well in the vast majority of cases. But like other statements of high authority of a similar nature—such as the contract remoteness rule in Hadley v Baxendale and the tort remoteness rule in the Wagon Mound—it appears to produce unsatisfactory results in difficult cases, fuelling calls for a more precise analysis of the basis of liability. In each instance the invitation has been taken up in recent years: the House of Lords reformulated the Salmond rule in Lister v Hesley Hall, and tort and contract remoteness in SAAMCO and the Achilleas. The Indian courts are yet to endorse Lister v Hesley Hall, although the Allahabad High Court has cited it with approval in a criminal case (see Chhaya Khanna v State of UP (2006) 3 ACR 3279). So the Salmond test is alive and well in India. But the question about the scope of that test is certain to arise in Indian law in the near future and the recent decision of the Court of Appeal in Mohamud v WM Morrison Supermarkets plc is a good illustration of why it makes a difference to the outcome of cases.
On 15 March 2008, Mr Mohamud stopped at a petrol station in Birmingham. The petrol station had a small convenience store owned by the defendant supermarket. On duty at the store that night was Mr Amjad Khan, who was employed as an assistant by WM Morrison to keep the store in good order. Mr Mohamud entered the store and politely asked Mr Khan if he could print some documents from a USB stick. For no apparent reason, Mr Khan launched what the judge at first instance described as a “brutal and unprovoked” attack on Mr Mohamud, causing serious physical and psychological injuries. Mr Mohamud sought to hold the defendant vicariously liable for this act. At first instance, Mr Recorder Khangure QC dismissed the claim on the ground that the Lister test of ‘sufficiently close connection’ was not satisfied, as Mr Khan’s job did not carry any inherent risk of conflict or violence or even require him to maintain order or control aggressive customers.
Although the Court of Appeal accepted that this was a tragic and entirely unjustified attack, it agreed with the Recorder and unanimously dismissed the appeal. Lord Justice Treacy, who delivered the leading judgment, makes the point that central to many of the difficult cases on vicarious liability is the proposition that the mere interaction of an employee with the claimant is not enough to trigger vicarious liability. Something more is required. The cases do not clearly identify what that ‘something more’ is but Lord Justice Treacy suggests that the answer lies in the nature of the employee’s duty: for example, an assault on a customer by a doorman is more likely to trigger vicarious liability than an assault by a finance manager, since the duties entrusted by an employer to the doorman inherently involve the potential for conflict while the duties entrusted to a finance manager does not. One can see why this might be important: the justification for the course of employment test is, after all, that it is necessary to find a connection between the wrong and the employer and what the employer requires the employee to do must inform that analysis. As his Lordship explains:
All of those cases involved a finding of liability in situations where the employee was given duties involving the clear possibility of confrontation and the use of force or was placed in a situation where an outbreak of violence was likely. They are to be contrasted with the current case, where on the judge’s findings, Mr Khan’s duties were circumscribed and where, indeed, his instructions were not to engage in any form of confrontation with a customer, even an angry one.
Lord Justice Christopher Clarke emphasises that the question is not simply it is ‘just and fair’ to hold WM Morrison vicariously liable in this case: if it were, WM Morrison would probably be liable as the assault occurred on its premises, by its employee and during work hours. The test is not ‘justice and fairness’. The test is that of ‘sufficiently close connection’ and ‘justice and fairness’ is not at large, but informed by the case law on that test. Accordingly:
If the question was simply whether it would be fair and just for Morrisons to be required to compensate Mr Mohamud for the injuries that he suffered, there would be strong grounds for saying that they should…That is not however, the test. The question is whether the connection between the assault and the employment was sufficiently close to make it fair and just to hold the employer vicariously liable. The fact that Mr Khan’s job included interaction with the public does not, by itself, provide that connection… 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.
I agree with my Lord that, for the reasons he has given and in the light of the cases to which he has referred, something closer than a duty to engage with customers is required. The cases illustrate circumstances which can afford a close enough connection between assault and employment. In the case of this assault those circumstances are absent. 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
Lady Justice Arden reached the same conclusion but formulated the ‘something more’ in slightly different terms: according to her Ladyship (following in this respect the analysis of the editors of Clerk and Lindsell), the employee must have been given discretion to act in a certain way and the use of violence must be ‘reasonably incidental’ to the exercise of that discretion. The difficulty with this formulation is that ‘reasonably incidental’ is not any more precise than the Salmond test.
On this analysis, in many cases, the close connection required for vicarious liability for intentional torts committed by an employee is to be found in the fact that the employee has a discretion to act which his employer has given him and the assault occurs in the course of or as reasonably incidental to exercising that discretion. Thus, in Gravil v Carrol  ICR 1222, there was a sufficient connection to make the employer liable for a player throwing a punch following a scrum because this act was on the evidence a reasonably incidental risk to playing rugby which the employee was employed to do.
The Indian law on vicarious liability has a long history: initially, the Indian courts were attracted by the proposition (once popular in England) that there can be no vicarious liability unless the master benefits from the employee’s wrong but the Bombay High Court held in the 1950s that this was no longer good law (see Dinbai Wadia v Farukh Mobedjna). Another objection was that the principal cannot be vicariously liable for his agent or employee’s fraud: this, too, fell by the wayside, with the courts confirming that vicarious liability works in exactly the same way (see, for example, the judgment of Mr Justice Venkatadri in Alamelu Ammal), except that the claimant must show that the representation was within ostensible authority, for otherwise there can be no reliance (on which see Mihir’s analysis of the cases culminating in Kelly v Fraser). The key question that remains unresolved in Indian law is the appropriate test of ‘course of employment’ and one hopes that the Supreme Court will provide guidance soon.