VICARIOUS LIABILITY IN THE UKSC: WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 and Barclays Bank Plc v Various Claimants [2020] UKSC 13
The UK Supreme Court (the “UKSC”) has recently delivered two judgments on vicarious liability, being WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 (the “WM Morrison decision”) and Barclays Bank plc v Various Claimants [2020] UKSC 13 (the “Barclays Bank decision”). This short update will highlight some of the key points raised in these two decisions, starting with the WM Morrison decision followed by the Barclays Bank decision.
The cases and the law of vicarious liability. To start, Lady Hale made clear at [1] of the Barclays Bank decision that:
1. The Barclays Bank decision deals with the relationship between employer and employee for the purposes of the law on vicarious liability; and
2. The WM Morrison decision deals with the issue of whether the tort had to be committed in the course of or within the scope of the tortfeasor’s employment.
The Barclays Bank decision. Lady Hale (with whom Lord Reed, Lord Kerr, Lord Hodge and Lord Lloyd-Jones agreed) delivered the judgment of the UKSC in the Barclays Bank decision. The key points to note are that:
1. The UKSC clearly held that the recent UKSC decisions on vicarious liability do not “… 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” at [24].
2. In support, the UKSC referred also to the Singapore Court of Appeal decision of Ng Huat Seng v Mohammad [2017] SGCA 58, and specifically cited paragraphs 63 and 64 at [26].
3. The UKSC therefore held at [27] that “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 … the key… 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 the five incidents”, being those that are referred to by Lord Phillips at paragraph 35 of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1.
So, in summary, the Barclays Bank decision makes clear that the law on vicarious liability insofar as it concerns the relationship between the employer and the tortfeasor has not changed: if the tortfeasor is an independent contractor, the employer cannot be held liable.
It also bears highlighting [29] of the Barclays Bank decision, where the UKSC made clear that a person is not an employee for all purposes, i.e., just because a person is an employee for employment law does not necessarily mean that the same person is an employee for vicarious liability.
The WM Morrison decision. Lord Reed (with whom Lady Hale, Lord Kerr, Lodge Hodge and Lord Lloyd-Jones agreed) delivered the judgment of the UKSC in the WM Morrison decision. The key points to note are:
1. The UKSC endorsed the “close connection” approach to vicarious liability as set out in Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215 and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366 ([21] – [24]);
2. The UKSC held that in Mohamud v WM Morrison Supermarkets Plc (Rev 1) [2016] UKSC 11; [2016] AC 677 (“Mohamud”), Lord Toulson was not suggesting any departure from the above approach and that the “close connection test is not merely a question of timing or causation”; vicarious liability is “decided by orthodox common law reasoning, generally based on the application to the case before the court of the principle set out by Lord Nicholls at para 23 of Dubai Aluminium” ([25] – [28]);
3. The UKSC clarified Lord Toulson’s statement of “motive is irrelevant” in Mohamud ([29] – [30]);
4. The UKSC stated at [35] that “the mere fact that [the employee’s] employment gave him the opportunity to commit the wrongful act would not be sufficient to warrant the imposition of vicarious liability”;
5. The UKSC made clear that the distinction between “cases … where the employee was engaged, however misguidedly, in furthering his employer’s business, and cases where the employee is engaged solely in pursuing his own interests: on a ‘frolic of his own’, in the language of the time-honoured catch phrase” is important at [47], and held that (on the facts) since the employee was not furthering his employer’s business, the wrongful act could not be regarded as being so closely connected with the acts he was authorised to do such that the employer can be held vicariously liable.
So, in summary, the USKC in the WM Morrison decision made clear that the relevant test to be applied remains the “close connection” test, and that it is vital not to lose sight of the distinction as set out in [47].
Conclusion. These two decisions by the UKSC make clear that while the law of vicarious liability has developed, the recent UKSC decisions are not meant to change the test that has been developed previously.
In addition, given the endorsement by the UKSC of Ng Huat Seng v Mohammad [2017] SGCA 58 in the Barclays Bank decision, practitioners may find the Barclays Bank decision important as it serves to make clear that the law on vicarious liability in Singapore and England and Wales is not (or at the very least, not so) different.
Tags: Tort; vicarious liability
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