Vicarious Liability

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Theodora Hand

by Theodora Hand, Barrister.

“It’s not our fault!”: Vicarious liability updates from the Supreme Court

Two decisions have very recently emerged from the Supreme Court on vicarious liability, and what a pleasant distraction is has been to read something unrelated to Covid-19.

The first case is that of WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents). One of the main issues before the court was whether Morrisons were vicariously liable for an employee who had uploaded sensitive information to the internet in breach of the Data Protection Act 1998 and without any direction from Morrisons to do so. Importantly, this was an employee with a grudge. In a judgment written by Lord Reed, the Supreme Court overturned the previous decisions of the High Court and the Court of Appeal by concluding that the employee who leaked the information “was not engaged in furthering his employer’s business when he committed the wrongdoing in question. On the contrary, he was pursuing a personal vendetta, seeking vengeance for the disciplinary proceedings some months earlier”. This reinforces the age-old position that where an employee is ‘on a frolic of his own’, there is no vicarious liability.

The second case, Barclays Bank plc (Appellant) v Various Claimants (Respondents), considered whether an employer can be vicariously liable for the acts of a contractor. 126 Respondents brought a claim on the basis that they had allegedly been sexually assaulted by a doctor who had conducted their medical assessments prior to them commencing employment with Barclays. The doctor was an independent contractor, and Lady Hale concluded that the doctor was in business on his own account, therefore Barclays were not vicariously liable.

These decisions are a sure sign that in times that feel so stagnant, the law is still ticking on.