UK: Vicarious Liability - Scotland Moves In The Same Direction As England & Wales

Last Updated: 11 July 2018
Article by Kate Donachie

In Grubb v Shannon, Sheriff Reid, sitting in Glasgow Sheriff Court, has issued a decision which follows recent Supreme Court authority extending the scope of vicarious liability in England & Wales. In Sheriff Reid's own words: "the facts are unremarkable, but the law that follows to be applied is relatively new". This is the first reported decision in Scotland where the extended scope of vicarious liability has been applied.  Although the claim did, as Sheriff Reid pointed out, concern unremarkable circumstances, it is likely to have significant implications for those pursing and defending claims in Scotland. 

What is vicarious liability? 

Vicarious liability in its simplest form is the liability of a party for the actions or omissions of another party.  In personal injury cases, it is most commonly seen in cases where an employer is held vicariously liable for an employee who has been negligent and, as a result of that negligence, someone has been injured.  

Lauren Grubb attended Ms Shannon's beauty salon for a treatment which involved hot wax and a chemical tint to her eyebrows and skin.  Ms Grubb suffered an allergic reaction which caused swelling, weeping of the skin and loss of her eyebrow hair. 

The facts

Ms Grubb had been treated by Rosanne Higgins but sought to recover damages from Ms Shannon. Ms Grubb had been treated in premises which were leased by Ms Shannon and operated by her under the trading name "Blush Hair and Beauty".  Ms Shannon had furnished and decorated the salon and had opened a business Facebook account under the name "Blush Hair and Beauty". At the time of Ms Grubb receiving her treatment, Ms Shannon was not working at the salon as she was on maternity leave. Ms Shannon had selected and permitted three other people to work in the salon.

Ms Higgins, was one of those three people but she was not employed by Ms Shannon. The defender permitted Ms Higgins to provide a wide range of beauty therapy treatments to customers. Ms Higgins kept all of the income from those treatments and paid Ms Shannon a flat £20 fee for each day that Ms Higgins worked in the salon. 

However Ms Shannon and Ms Higgins had agreed a uniform pricelist for the treatment and Ms Higgins could not offer any special offers without Ms Shannon's permission.

It was not apparent to customers that Ms Higgins was self-employed or indeed that she was operating an independent business within Ms Shannon's premises. 

Ms Shannon's evidence was that she did not control any of the three women who worked in her salon. She did however accept that she had power to exclude Ms Higgins from the salon and that everyone was affected by customer experience at the salon, be it positively or negatively. The other beauty therapist there regarded herself as a "tenant". 

The Sheriff's findings 

The decision was based on the legal issues at the heart of the case. There was no dispute on the facts nor was there any suggestion that the parties had been dishonest or unreliable. 

Sheriff Reid found that Ms Higgins had been negligent and had caused the injury. He also found that Ms Higgins was self-employed. However, significantly, he found that she carried out activities assigned to her by Ms Shannon as an integral part of Ms Shannon's business, for Ms Shannon's benefit and subject to Ms Shannon's control - and not as part of a recognisably independent business of her own. 

The Sheriff held that Ms Higgins' negligence was a risk created by Ms Shannon in assigning those activities to Ms Higgins; the relationship was akin to that of employment and it was fair, just and reasonable to impose vicarious liability upon Ms Shannon. 

The basis for the Sheriff's legal conclusions

Sheriff Reid recognised the scope and pace of recent change to the doctrine of vicarious liability. He considered that he was bound to apply a two stage test; the first stage was to determine the relationship between the defender (Ms Shannon) and the wrongdoer (Ms Higgins) and the second was to determine whether there was a sufficiently close connection between that relationship and the wrong done. In this case the second stage of the test was easily satisfied. Therefore Sheriff Reid's decision was concerned with an analysis of the relationship between Ms Shannon and Ms Higgins. 

He referred to three recent Supreme Court judgments which concerned the same question; The Catholic Child Welfare Society and others v Various Claimants and others [2012] UKSC 56; Cox v Ministry of Justice [2016] UKSC10  and Armes v Nottinghamshire County Council [2017] UKSC 60.

He found that the integration was to be judged on an objective basis and therefore it was important to consider what would have been apparent to a member of the public attending the salon, rather than what was agreed between Ms Shannon and Ms Higgins. He also attached importance to the fact that Ms Shannon obtained a real benefit from Ms Higgins operating in the salon; she received rent, the business continued trading and the goodwill attached to the name was retained. Crucially, the services provided by Ms Higgins were an integral part of Ms Shannon's business and she was not "merely an accessory" to the salon's operation.  From the case of Cox v Ministry of Justice (as mentioned above), Sheriff Reid noted that control was not so important as it was previously considered and that, in this case, Ms Shannon exercised sufficient control to render the relationship akin to employment.  


This was a detailed and careful decision by Sheriff Reid who clearly recognised the significance and potential consequences of his findings. He outlined the development of vicarious liability, the reasons for the doctrine itself and the reasons for its current state of flux. He recognised that there is likely to be more change to come, particularly given the context in which these changes have occurred. The most significant implication of his decision is that Scottish law is following changes in England and we might anticipate that any further changes south of the border will be adopted here. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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