Search

BLOG

TIDE TURNS ON THE EXPANSION OF VICARIOUS LIABILITY

Blog image

Under the doctrine of vicarious liability, an employer can be held liable for the wrongdoing of an employee if there is a connection between the employment and the wrongdoer’s act or default and it is just for the employer to be held liable. Over the past two decades the circumstances in which the doctrine can be applied has steadily expanded.

In Lister v Hesley Hall Ltd [2001] UKHL 22 the House of Lords held that a boarding school was vicariously liable for the actions of a warden who had sexually assaulted pupils.  Although these were criminal acts the Court found there was a close connection between the wrongdoing and the warden’s employment to establish liability.

Two years later in Mattis v Pollock (t/as Flamingo’s Nightclub) [2003] EWCA Civ 887 the Court of Appeal held that a night club owner was variously liable for the actions of one of his bouncers, Cranston. Following an altercation with customers in the nightclub, Cranston left to retrieve a knife from home and then returned stabbing one of them. Cranston was employed specifically to keep order and was encouraged to perform his duties aggressively. The Court found the stabbing was a culmination of the earlier incident.

In the case of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 the victim was physically assaulted in an unprovoked attack at the defendant’s petrol station by one of its forecourt attendants.  In finding the supermarket vicariously liable the Supreme Court clarified the ‘close connection’ test stating the court has to consider two matters:

 

1.       What functions or “field of activities” have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job;

2.       Whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice.

 

Two decision handed down by the Supreme Court on 1 April 2020 have revisited the application of the doctrine of vicarious liability.

In the first case, WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 the judgment begins by saying the matter was an 

“opportunity to address the misunderstandings which have arisen since its decision in the case of Mohamud

The case concerned the actions of Skelton, a senior internal auditor employed by the supermarket, who downloaded payroll data of 100,000 staff from his laptop to a USB that he had been asked to transmit to the accountant firm KPMG. He then leaked the data online and to three newspapers.  Skelton, who bore a grudge following disciplinary proceedings, was convicted of offences under the Data Protection Act 1998 and the Computer Misuse Act 1990.

The Supreme Court, overturning the Court of Appeal’s ruling that Morrisons was liable, found that the disclosure was not part of Skelton’s “field of activities” stating:

“…..he was pursuing a personal vendetta…. Skelton’s wrongful conduct was not so closely connected with acts which he was authorised to do that…. it can fairly and properly be regarded as done by him while acting in the ordinary course of his employment.”

In the second case Barclays Bank v Various Claimants [2020] UKSC 13 the Supreme Court overturned the Court of Appeal’s ruling that Barclays was liable for the sexual assaults committed by Dr Bates, an independent contractor engaged by the Bank to undertake medical examinations of prospective employees.

The Court confirmed the question to be addressed is whether the wrongdoer is 

carrying on business on his own account or whether he is in a relationship akin to employment.  

If it is clear the wrongdoer is working on his own account then the defendant is not vicariously liable. However if it is not clear then it will be necessary to consider whether the relationship “is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability”. On the facts of this case it was found that Dr Bates was an independent contractor.

While the test in Mohamud for vicarious liability remains intact the Supreme Court has made clear that it should not be interpreted too widely.

Fisher Scoggins Waters are a London based law firm who specialise in construction, manufacturing and engineering matters. If you have recently had a health and safety incident occur in your workplace and require legal advice, please phone us on 0207 993 6960. 

Follow our company page on linkedin for future updates and our views on the latest developments

Categories: Health & Safety

Please leave a comment

Enter the name you would like to appear on the comment.
(required)
Enter the email you would like to use to get updates. You email is not visible and can not be used by other users.
(required)
Enter you comment help.

 
  Post Comment

Book Launch - 27 November 2019

Will you be joining us?

HSE and Environment Agency prosecution: A new climate

27 November 2019 | Bloomsbury, 50 Bedford Square, London, WC1B 3DP

Event Registration

First name
Surname
Email address
Any additional information
Post/Event URL
Post/Event Title
CAPTCHA image
Enter the code shown above in the box below.

Tag Cloud

‘fit for purpose’ obligations 2016 Adjudication adjudication lawyer Adjudication Notice Adjudication process appeal appointing an adjudicator Arbitration Artificial Intelligence Asbestos benefits of off-site construction bonfires book launch breach of contract Brexit Building Defects business interruption Business Interruption Insurance CDM CDM Regulations chambers and partners Charlotte Waters civil proceedings claim payments Claims client COMAH commercial contracts complex construction claims Compliance compulsory sprinklers in warehouses consequential loss construction Construction Construction & Engineering construction contract Construction contract dispute Construction contracts Construction dispute construction dispute lawyer construction dispute resolution construction dispute resolution solicitor construction dispute solicitors Construction Disputes Resolution Construction industry Construction Magazine contracts Contribution claim Corporate Manslaughter Corporate Responsibility costs criminal investigation criminal proceedings cut out fuse Defective Building Work Defective Premises Act developer developers disadvantages of off-site construction Disaster disaster claim Disasters Dispute dispute resolution Disputes DPA Dr Louise Smail Emergency response Emergency Response Solicitors enforcement notices Engineering Engineering dispute Environment Agency environment law Environmental Environmental Agency Environmental damage Environmental Law environmental waste EU EU Procurement Europe Evidence Expert evidence expert witness falls from height Fatal Accidents fee for intervention Fees For Intervention FFI FIDIC Contracts fine Fines Fire Fire Claim fire claims fire damage fire damage lawyers fire sprinkler systems fireworks flood flood claim flood damage food hygiene Fracking fracking claims Fraudulent claims FSW Gross Negligence Manslaughter Guide to Adjudication H&S fine increases; health and safety fines; Health & Safety health & safety breach health & safety sentences health & safety sentencing guidelines health & safety sentencing large corporations health and safety health and safety Health and Safety Executive heave Higher Fines Honey Rose v R How to appoint an adjudicator HSE Insolvency insolvent insurance Insurance Act 2015 insurance bill Insurance Broker insurance claim insurance cover Insurance Disclosure Insurance Disclosure insurance dispute insurance dispute solicitors Insurance Warranties ISO 45001 join us joint venture Judicial Review latest news Law Lawyer legal 500 legal advice privilege Legal Expense Insurance legal professional privilege legal retainers Liability Liquidated Damages Litigation litigation privilege local bodies magistrates’ courts Major Property Damage Manufacturing Martinisation material breach Mediation Michael Appleby Micheal appleby modern methods of construction (MMC) modular construction Mr. Gutaj Notice of adjudication panel firms party wall Performance Bond planning powers of an adjudicator pre-fabrication procurement procurement injunction procurement model Property Damage property danage Public Contract Public Contracts Public Contracts Regulations public procurement public procurement challenges public procurement relationship public sector Publicity Order PUWER recruitment regulation 11 Relief Resolution riot Riot Compensation Act 2016 Risk Risk Assessment safety in the workplace Sanctions Self-build sentence sentencing sentencing guidelines Serious Fraud Office SME Sneller Sony specialist risk and safety consultant Statute Barred Sub-Contractors subrogation subsidance subsidence TCC TCC Guidance team Technology and Construction Court The Adjudicator’s Decision and Costs The Enterprise Act The Lord Young Reforms The Powers Of An Adjudicator The Public Contracts Regulations 2015 The referral notice and response Training tree root UK Underwriters Warehouse insurance Warranties waste water damage WEEE What is Adjudication? what should an adjudication refal notice contain work equipment

Search The Site

Accreditations

 

The Legal 500 - The Clients Guide to Law Firms


Contact Us Now For Advice And Guidance

Enter your name
Enter your surname
Enter your Email
Ask us a Question?