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Key Case Law Developments in Vicarious Liability

Gemma Shepherd-Etchells

26th February 2023

The law on vicarious liability has seen various legal developments over the last decade and in recent years, with the Supreme Court modernising and clarifying the tests through case law decisions.

Vicarious liability is where a defendant is found to be responsible for the tort of another. This has been utilised in many employment contexts to impose liability on an employer for the acts of an employee. However the Supreme Court decisions of April 2020 in the cases of WM Morrison Supermarkets plc v Various Claimants and Barclays Bank plc v Various Claimants, along with some more recent developments in the law have seen some changes in the law as to when an employer will be regarded as responsible for the acts of another carrying out work for them.

The Barclays case concerned a doctor (Dr Bates) who carried out medical reports for Barclays on current or prospective employees. There were a number of claims brought by those whom he had examined for sexual assault, and these were brought against Barclays, who the claimants stated should be vicariously liable for the acts of the doctor. Barclays contested this, and stated that Dr Bates was self-employed, and thus an independent contractor, so they could not be held to be vicariously liable for his acts. Both the court of first instance and also the Court of Appeal found that Barclays were vicariously liable. Although the doctor conducted work in his own home, organised his own diary and undertook other work, Barclays did direct and identify questions which he must ask the claimants and the examinations he must complete in order to submit their reports. Barclays appealed and it was decided at the Supreme Court that for one party to be held vicariously liable for the torts of another, there must be a relationship between the two parties which makes it proper for the law to make one party pay for the fault of another. In the Barclays case there was seen to not be an employment relationship as the doctor could refuse work at will, his work for Barclays was only a small amount of his workload and he had his own insurance. It was instead seen that the bank was one of his clients, rather than him working for them.

Secondly, if there is a relationship, there must be a sufficiently close connection between the wrongful act and the relationship between the tortfeasor and employer, meaning that it would be just to impose liability on the employer. Here consideration was given to the 5 criteria set out in the case of Catholic Child Welfare Society v Claimants (2012) to help determine this in ambiguous cases, these being:-

  1. The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability.
  2. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.
  3. The activity was part of some business activity of the employer.
  4. The employer had created the risk that the employee would commit the tort by engaging him.
  5. The employee will have been under the control of the employer.

Finding a close connection between the wrongful act and the relationship between the tortfeasor and employer can be problematic however, as was seen in the 2016 case of Mohamud v WM Morrison Supermarkets plc. Here the supermarket was liable for the an employee assaulting a customer, as this was seen to be in close connection with the business activity and the employees role of dealing with customers.

However in the more recent 2022 case of Chell v Tarmac Cement and Lime Ltd. the Court of Appeal upheld a previous decision by the High Court where an employer was not liable for injuries on a third party caused by an employee by playing a practical joke. For he was seen to not be acting in any way as an authorised part of his work, not using work equipment, and was no way advancing the purpose of his employer. As seen here fundamentally employers should not be held liable where employees act inappropriately and beyond the normal scope of their employment. In this case it was remarked that it is “unreasonable and unrealistic” to expect an employer to have a system to ensure their employees did not engage in horseplay.

The earlier 2020 Supreme Court decision in Morrisons v various claimants clarified this as employers can only be held liable for the actions of employees if closely connected with their duties. This case concerned an employee of Morrisons who purposefully and maliciously breached data regulations by leaking personal data of employees. At first instance Morrisons were held to be vicariously liable for the acts of the employee, however on appeal at the Supreme Court the appeal was allowed. For it was regarded that the individual act was not sufficiently close to his authorised work. This provides relief for employers when faced with rogue employees, but caution should still be exercised and proper training given.

Questions to consider

  • What is the principle which supports the idea that employers should be responsible for the acts of employees at all?
  • Do you think the reformed tests have got it right as to when vicarious liability should be imposed? Are these updates in the law fair for claimants and employers?
  • In the Barclays case the doctor had died and therefore the only possible claim the aggrieved party could have was against the bank - do you think this is relevant as to why they brought a claim under vicarious liability and why this was allowed at the lower courts?

Further support with Vicarious Liability -

Vicarious liability is one of our key focus topics on our 2023 Grade Booster Student Workshops. Join our experienced presenters for a day of fast-paced revision, practice & essential exam technique advice on the big cinema screen. Book your place here: A-Level Law Grade Booster | Student Workshops | tutor2u

Test yourself. Watch and play along to the free study live stream on vicarious liability here - A-Level Law | Study Livestream | Vicarious Liability | tutor2u

Further resources

Watch a summary of the reasoning from Supreme Court judges on the Barclays and Morrisons cases:-

http://ukscblog.com/new-judgme...

http://ukscblog.com/new-judgme...

Key Case | Barclays v Multiple claimants (2020) | Vicarious Liability - Relationship of Employment | Law | tutor2u

Key Case | A M Mohamud v WM Morrison’s Supermarket PLC (2016) | Vicarious Liability - In the Course of Employment | Law | tutor2u

Gemma Shepherd-Etchells

Gemma is an experienced Law teacher and examiner.

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