VICARIOUS LIABILITY
L&O, 830-868
*Barclays Bank plc v Various Claimants [2020] UKSC 13, [2020] 2 WLR 960
per Lady Hale:
2 elements = (1) the relationship between D1 and D2, (2) the connection between the relationship and the tortfeasor’s
wrong-doing;
the recent expansion in the law of VL began w/ Lister, which endorsed the argumentation based on policy
considerations put forward by the SC of Canada in Bazley (re: adequate remedy + deterrence led to the creation of the
close connection test which was adopted by the UKSC, albeit with some qualifications)
continued with the prospect of dual VL put forward in Viasystem (vicarious liability extended to a person who was not
in law the employer of the tortfeasor)
continued with the Christian Brothers case — Lord Phillips of Worth Matravers listed “a number of policy reasons”
usually making it fair, just and reasonable to impose vicarious liability upon an employer for the torts committed by an
employee in the course of his employment:
“(i) 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;
(ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the
employer;
(iii) the employee’s activity is likely to be part of the business activity of the employer;
(iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort
committed by the employee;
(v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
=> policy reasons, closely related to the policy reasons derived from the Canadian cases and Lister v Hesley
Hall
BUT Lord Hobhouse stressed that outlining policy rules is not the same as outlining the criteria fo the
application of a legal rule, which necessitates clarity;
STILL Lady Hale argues that Lord Philips did, indeed, provide material reasons in discussing the application
of the close connection test in the Christian Brothers case, as opposed to merely referring to policy
considerations (he analysed the ways in which the organisation and the teachers’ involvement therein was
‘akin to employment’, e.g. the hierarchical structure of the org., the control over the teachers’ work, the
teachers’ vows and payment, etc.);
continued with Cox — Lord Reed emphasised three factors: (i) the tort was committed as a result of activity
undertaken by the tortfeasor on behalf of the defendant; (ii) that the activity was part of the business activity of the
defendant; and (iii) that by employing the tortfeasor to do it, the defendant created the risk of his committing the tort;
continued with Armes — Lord Reed repeated his analysis in Cox, prefacing his account with the statement that, while
the classic example of a relationship justifying the imposing of vicarious liability was employer and employee, as
explained in Cox and Christian Brothers “the doctrine can also apply where the relationship has certain characteristics
similar to those found in employment”;
BUT nothing to suggest that the classic distinction between employment and relationships akin or analogous to
employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been
eroded;
R Buxton, “Vicarious liability in the twenty-first century” (2020) 79 CLJ 217 (one of the first, and almost certain to be
one of the most outspoken, responses to Barclays Bank plc v Various Claimants [2020] UKSC 13).
cases such as this one have devastating effects on the claimants, stemming from the independent contractor rule;
the criticism is not with the casual use of contractors, for instance in ad hoc transport or cleaning operations, but with
the integration of the contractor in the employer's business, re: Dr. Bates was the only practitioner used by Barclays,
was obliged to complete a pro forma report supplied by Barclays, and featured in the recruitment process on a regular
and recurring basis.
argues that the Supreme Court had an opportunity to build on the earlier jurisprudence by holding that that the
, independent contractor rule, formulated in very different social circumstances, cannot prevail in the particular case
when the contractor is part and parcel of, and integral part of, the employer's business. That that opportunity was not
taken, indeed was rejected in detailed terms that do not admit of any modification or qualification, means that in this
respect the law of vicarious liability departs from the realities of modern life.
*W M Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, [2020] 2 WLR 941
distinction between cases where the employee is engaged, however misguidedly, in furthering his employer’s business, and
cases where they are solely engaged in pursuing their own interests as distinct from those of their employer, re: ‘frolic of his
own’ as per Joel v Morrison.
in Dubai Aluminium Lord Nicholls explained the existing “close connection” — whether the wrongful
conduct was so closely connected with acts the employee was authorised to do that for the purposes of the
liability of the employer to third parties, it may fairly and properly be regarded as done by the employee
while acting in the ordinary course of his employment. + the test has to be applied having regard to the
circumstances of the case and previous court decisions, following Dubai Aluminium.
the Court concludes that the judge and the Court of Appeal misunderstood the principles governing
vicarious liability in a number of respects:
a. the online disclosure of the data was not part of Skelton’s “field of activities”, as it was not
an act which he was authorised to do.
b. the satisfaction of the factors referred to by Lord Phillips in Various Claimants v Catholic
Child Welfare Society [2012] UKSC 56 was not to the point: those factors were relevant to
whether, where the wrongdoer was not an employee, the relationship between wrongdoer and
defendant was sufficiently akin to employment for vicarious liability to subsist. They were
not concerned with whether employees’ wrongdoing was so closely connected with their
employment that vicarious liability ought to be imposed.
c. a temporal or causal connection alone does not satisfy the close connection test.
d. it was highly material whether Skelton was acting on his employer’s business or for purely
personal reasons
re: the Supreme Court considered that the dissemination was not an act that Skelton
was allowed to do and that the mere fact that his employment gave him the
opportunity to do the wrongful act did not mean that Morrisons should be held liable.
Most importantly, however, the Supreme Court held that Skelton’s wrongful act was
not sufficiently close to his authorised work to be considered as being done by him in
the ordinary course of his employment.
FR:
P Giliker, ‘Analysing Institutional Liability for Child Sexual Abuse in England and Wales and Australia’ (2018) 77 CLJ
506 (an interesting comparison of the different approaches taken in England and Australia, including the proposals of
public enquiries).
argues that a new approach is needed for dealing with claims for VL and non-delegable duties;
critically assesses how private law has engaged with historic child sexual abuse claims committed by individuals
employed by or associated with the operations of institutions and the degree to which the approach adopted has
destabilised core tort law principles;
statutory redress schemes, e.g. UK Criminal Injuries Compensation Scheme, are inadequate — claims are
capped, there are time limits to bring a claim, and other restrictions apply as well, e.g. awards may be
withheld or reduced because of the applicant's character;
+ the govt.’s guide to the scheme expressly advises that it is intended as a matter of last resort, re:’where the
opportunity exists for you to pursue compensation elsewhere you should do so.’;
=> victims will continue to turn to private law to seek compensation for the abuse (a compensation award
does more than provide financial recompense for the economic disadvantages which abuse and psychiatric
injury have inflicted, it also performs a subset of functions; damages have symbolic force as, inter alia, an
expression of the wrong done to the claimant and a vindication of the claimant's character);
L&O, 830-868
*Barclays Bank plc v Various Claimants [2020] UKSC 13, [2020] 2 WLR 960
per Lady Hale:
2 elements = (1) the relationship between D1 and D2, (2) the connection between the relationship and the tortfeasor’s
wrong-doing;
the recent expansion in the law of VL began w/ Lister, which endorsed the argumentation based on policy
considerations put forward by the SC of Canada in Bazley (re: adequate remedy + deterrence led to the creation of the
close connection test which was adopted by the UKSC, albeit with some qualifications)
continued with the prospect of dual VL put forward in Viasystem (vicarious liability extended to a person who was not
in law the employer of the tortfeasor)
continued with the Christian Brothers case — Lord Phillips of Worth Matravers listed “a number of policy reasons”
usually making it fair, just and reasonable to impose vicarious liability upon an employer for the torts committed by an
employee in the course of his employment:
“(i) 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;
(ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the
employer;
(iii) the employee’s activity is likely to be part of the business activity of the employer;
(iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort
committed by the employee;
(v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
=> policy reasons, closely related to the policy reasons derived from the Canadian cases and Lister v Hesley
Hall
BUT Lord Hobhouse stressed that outlining policy rules is not the same as outlining the criteria fo the
application of a legal rule, which necessitates clarity;
STILL Lady Hale argues that Lord Philips did, indeed, provide material reasons in discussing the application
of the close connection test in the Christian Brothers case, as opposed to merely referring to policy
considerations (he analysed the ways in which the organisation and the teachers’ involvement therein was
‘akin to employment’, e.g. the hierarchical structure of the org., the control over the teachers’ work, the
teachers’ vows and payment, etc.);
continued with Cox — Lord Reed emphasised three factors: (i) the tort was committed as a result of activity
undertaken by the tortfeasor on behalf of the defendant; (ii) that the activity was part of the business activity of the
defendant; and (iii) that by employing the tortfeasor to do it, the defendant created the risk of his committing the tort;
continued with Armes — Lord Reed repeated his analysis in Cox, prefacing his account with the statement that, while
the classic example of a relationship justifying the imposing of vicarious liability was employer and employee, as
explained in Cox and Christian Brothers “the doctrine can also apply where the relationship has certain characteristics
similar to those found in employment”;
BUT nothing to suggest that the classic distinction between employment and relationships akin or analogous to
employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been
eroded;
R Buxton, “Vicarious liability in the twenty-first century” (2020) 79 CLJ 217 (one of the first, and almost certain to be
one of the most outspoken, responses to Barclays Bank plc v Various Claimants [2020] UKSC 13).
cases such as this one have devastating effects on the claimants, stemming from the independent contractor rule;
the criticism is not with the casual use of contractors, for instance in ad hoc transport or cleaning operations, but with
the integration of the contractor in the employer's business, re: Dr. Bates was the only practitioner used by Barclays,
was obliged to complete a pro forma report supplied by Barclays, and featured in the recruitment process on a regular
and recurring basis.
argues that the Supreme Court had an opportunity to build on the earlier jurisprudence by holding that that the
, independent contractor rule, formulated in very different social circumstances, cannot prevail in the particular case
when the contractor is part and parcel of, and integral part of, the employer's business. That that opportunity was not
taken, indeed was rejected in detailed terms that do not admit of any modification or qualification, means that in this
respect the law of vicarious liability departs from the realities of modern life.
*W M Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, [2020] 2 WLR 941
distinction between cases where the employee is engaged, however misguidedly, in furthering his employer’s business, and
cases where they are solely engaged in pursuing their own interests as distinct from those of their employer, re: ‘frolic of his
own’ as per Joel v Morrison.
in Dubai Aluminium Lord Nicholls explained the existing “close connection” — whether the wrongful
conduct was so closely connected with acts the employee was authorised to do that for the purposes of the
liability of the employer to third parties, it may fairly and properly be regarded as done by the employee
while acting in the ordinary course of his employment. + the test has to be applied having regard to the
circumstances of the case and previous court decisions, following Dubai Aluminium.
the Court concludes that the judge and the Court of Appeal misunderstood the principles governing
vicarious liability in a number of respects:
a. the online disclosure of the data was not part of Skelton’s “field of activities”, as it was not
an act which he was authorised to do.
b. the satisfaction of the factors referred to by Lord Phillips in Various Claimants v Catholic
Child Welfare Society [2012] UKSC 56 was not to the point: those factors were relevant to
whether, where the wrongdoer was not an employee, the relationship between wrongdoer and
defendant was sufficiently akin to employment for vicarious liability to subsist. They were
not concerned with whether employees’ wrongdoing was so closely connected with their
employment that vicarious liability ought to be imposed.
c. a temporal or causal connection alone does not satisfy the close connection test.
d. it was highly material whether Skelton was acting on his employer’s business or for purely
personal reasons
re: the Supreme Court considered that the dissemination was not an act that Skelton
was allowed to do and that the mere fact that his employment gave him the
opportunity to do the wrongful act did not mean that Morrisons should be held liable.
Most importantly, however, the Supreme Court held that Skelton’s wrongful act was
not sufficiently close to his authorised work to be considered as being done by him in
the ordinary course of his employment.
FR:
P Giliker, ‘Analysing Institutional Liability for Child Sexual Abuse in England and Wales and Australia’ (2018) 77 CLJ
506 (an interesting comparison of the different approaches taken in England and Australia, including the proposals of
public enquiries).
argues that a new approach is needed for dealing with claims for VL and non-delegable duties;
critically assesses how private law has engaged with historic child sexual abuse claims committed by individuals
employed by or associated with the operations of institutions and the degree to which the approach adopted has
destabilised core tort law principles;
statutory redress schemes, e.g. UK Criminal Injuries Compensation Scheme, are inadequate — claims are
capped, there are time limits to bring a claim, and other restrictions apply as well, e.g. awards may be
withheld or reduced because of the applicant's character;
+ the govt.’s guide to the scheme expressly advises that it is intended as a matter of last resort, re:’where the
opportunity exists for you to pursue compensation elsewhere you should do so.’;
=> victims will continue to turn to private law to seek compensation for the abuse (a compensation award
does more than provide financial recompense for the economic disadvantages which abuse and psychiatric
injury have inflicted, it also performs a subset of functions; damages have symbolic force as, inter alia, an
expression of the wrong done to the claimant and a vindication of the claimant's character);
