Chris Brooks Head of Litigation and specialist employment Lawyer at Simcocks Advocates discusses the issues arising in the light of the recent decision of the Supreme Court in W M Morrisons versus various claimants  UKSC12 and Barclays Bank plc versus various claimants  UKSC13.
Whilst many people will not have heard of the term “vicarious liability”, most people will be familiar with the concept and practice. If you go into a DIY store and a worker accidentally crashes into you with a fork lift truck, you are likely to sue the DIY store rather than the worker personally. You wouldn't expect the company to be able to evade responsibility simply by saying that it had nothing to do with it! In law, this assumption of responsibility by an employer for the acts and omissions of its employees is known as vicarious liability.
Whilst the central concept may be well understood, around the edges there is potential for dispute. What if the above scenario isn't quite that straightforward? Does it make any difference if he wasn't supposed to be driving the fork lift at all? Or if he was larking about when he crashed? Or alternatively what if he had a grievance, either against you – or against the store – and he deliberately intended to cause an accident?
Finally, does it make any difference whether the fork lift driver is an employee or an independent contractor? Could the store say that the driver was actually employed through an agency on a supply basis and that he worked in several shops and that he was therefore nothing to do with the store?
It has long been established that an employer is liable for something that his employee does, which he has not authorised, if it is so connected with something he has authorised that it may rightly be regarded as a way of doing the act. Such acts are within the scope of his employment. Having given the keys to the fork lift to the employee, it is no answer to say that he wasn't supposed to speed around the store.
In a 1948 New Zealand case, a barman refused to serve an inebriated customer who retaliated by throwing a glass at the barman. The barman reacted by flinging glass back at the customer, but unfortunately hit an innocent bystander. The pub was liable for the act of its barman notwithstanding that it had not authorised the barman to throw glasses at customers!
Back in the DIY store, suppose you were not a customer but rather a colleague of the driver. Suppose you used to taunt each other by driving up close to each other and suddenly braking. Unfortunately, on this occasion, he braked a little too late. Surprisingly, it is possible that the employer would not be liable. In Paul Graham v Commercial Bodyworks Ltd 1 two employees worked with highly flammable chemicals in the course of their employment but they enjoyed a laugh and used to mess about. On the day in question, one set the other alight. The employer was found not to be liable. The accident had not happened in the course of employment.
Deliberate act against you
What if the fork lift driver had deliberately crashed into you as a customer, perhaps because of a personal vendetta against you? In Mohamud v WM Morrison Supermarket2, the Supreme Court dealt with an argument that had broken out between a petrol pump attendant and a customer. Things got heated and the attendant racially abused the customer, opened the vehicle door and assaulted him. Although the issue between the two was personal, the Supreme Court was influenced by the fact that there was not a moment when metaphorically the attendant took off his Morrison's uniform and became simply a member of the public. The supermarket was found liable for the assault.
Vendetta against the store
You might therefore think that the store would be liable regardless of the fork lift driver's motives, but this is not necessarily the case. Contrast a deliberate act against you with the situation where the fork lift driver had a grievance against the store manager and wished to get even by destroying the display, which he destroyed but which collapsed onto you!
In the above case involving the petrol pump attendant, the precise motivation of the attendant was said to be irrelevant, but in a different case involving the same supermarket3, the Supreme Court recently refused to extend liability in respect of a data breach. The Court found against a group of claimants whose confidential information had been disseminated to a national newspaper by a disgruntled employee. His motivation was that he wished to get back at Morrisons.
In the lower Courts, the claimants had succeeded. Those Courts noted there was a seamless chain of events between the employer acting properly in the course of his duties and then improperly disseminating the information. The Supreme Court disagreed. Rejecting any notion of there being a social justice requirement to impose liability (as had been argued below) it found that the disclosure of data on the internet was not a part of the employee's duties. His motivation was relevant and where that motivation was to harm the employer, it could not be said that he was acting on the employer's behalf.
On the one hand, if the driver is an independent contractor then you may feel that it is unfair to blame the store for his conduct. On the other hand, if you had been hurt through his actions and he is perhaps wearing a store uniform, then it seems unfair for the store to be able to escape liability simply on the basis of a technicality relating to how they pay for his services. After all, when you enter the store, you don't know whether he is an independent contractor or an employee.
In a 2006 case4, the Court of Appeal had held that the owners of a nightclub could be held vicariously liable for an assault carried out by a bouncer supplied to the nightclub by an employment agency. However, the Supreme Court a few months ago5 dealt with the case of a group of claimants who alleged they had been sexually assaulted by a doctor who Barclays had sent them to for a medical examination prior to being employed. The doctor was an independent contractor. The Supreme Court held that Barclays were not liable for his actions and he acted on his own account because he had his own business and no doubt carried his own insurance. It would seem that the potential for vicariously liability is not as great as might have previously been thought.
It will be appreciated that the distinctions between the various cases are very slight indeed. It does however raise the interesting prospect that the motivation behind the fork lift driver's actions (which may be completely unknown to you) and his employment status may be relevant in ultimately determining whether the shop is responsible for his actions or not. These cases will not be the final word on the subject.
Vicarious liability can arise in many scenarios and if you are concerned by any of the issues raised in this article, whether as employer, employee or independent contractor, please do contact Simcocks for further advice.
1  EWCA Civ 47
2  UKSC 11
3 W M Morrisons v Various Claimants  UKSC12
4 Horley v Luminaire Leisure (2006) IRLR 817
5 Barclays Bank plc v Various Claimants  UKSC13.
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.