Vicarious Liability - Two Supreme Court Decisions

The Supreme Court has day issued judgement on two cases dealing with vicious liability.

The first case dealt with the question of whether an employer vicariously liable when an employee commits a act as a personal vendetta?

Its answer was, ‘no’, in the matter of Morrisons v Various Claimants, upholding the employer's appeal.

This case involved a disgruntled employee, who was an internal auditor, who instead of sending payroll data to the supermarket's auditors, uploaded it on the internet, causing a serious and significant data breach. In a group action, the Claimants (the data subjects) succeeded in the High Court and the Court of Appeal for breach of statutory duty under the Data Protection Act 1998, misuse of private information and breach of confidence.

The Supreme Court carried out a comprehensive review of the law on vicarious liability and held that Morrisons were not vicariously liable for the employee's act. The Court noted a failing in the previous decisions in this case; it is not enough to establish vicarious liability that the employee's act arose from a task 'closely related to what he was tasked to do'.

There is vicarious liability where 'the employee is engaged, however misguidedly, in furthering his employer's business'. There is no vicarious liability, in the time-honoured phrase, where an employee is 'on a frolic of his own'.

The judgment compared a Managing Director at a Christmas Party who punched an employee when illustrating who was in charge of the business (the employer is liable), with a police officer who left his post and accidentally shot a bystander when enraged after finding his girlfriend in a bar with another man (the employer not liable).

Where an act is one of 'personal vengeance', or an act that is in pursuit of private ends, an employee is not acting on his employer's business as in this case. Therefore, Morrisons were not vicariously liable for their employee's actions.

The second case death with the question of whether someone be vicariously liable for the actions of an independent contractor?

The answer in this case was , not necessarily in Barclays Bank plc v Various Claimants.

Barclays required certain new employees to receive a medical assessment prior to their employment starting at least between 1968 and 1984. In that period 126 mainly teenaged female claimants alleged that Dr Bates, a practitioner not employed by Barclays, had sexually assaulted them. He was paid a fee for each report he conducted and was not obliged to accept any particular level of work from Barclays.

The Claimants all succeeded on the issue of vicarious liability at trial and in the Court of Appeal. Lady Hale, giving the unanimous judgment of the Supreme Court, reversed those decisions and held that Barclays was not vicariously liable. The main part of her reasoning was:

"The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant...[T]he key, as it was in Christian Brothers, Cox and Armes, will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider [anything else]." 

This case is also interesting due to the other comments made by Lady Hale regarding vicarious liability and ‘workers’ (as different to employees). In her view, someone who is a worker may still not be in a relationship ‘akin to employment.