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VICARIOUS LIABILITY: A TALE OF TWO CASES

Lloyd's Maritime and Commercial Law Quarterly

VICARIOUS LIABILITY: A TALE OF TWO CASES

Ivan Sin*

Barclays Bank v Various Claimants WM Morrison Supermarkets v Various Claimants

Introduction

The analytical structure of vicarious liability, following the Supreme Court’s landmark decision Various Claimants v Catholic Child Welfare Society,1 is embodied in essentially two inquiries. First, is there a close relationship between the primary tortfeasor and the defendant? Second, is there a close connection between the tort and the relationship identified in stage one? Since then, the Supreme Court was given the occasion to “take stock” of how these two stages should be applied in the “companion cases” of Cox v Ministry of Justice 2 and Mohamud v WM Morrison Supermarkets Plc.3 Three years after Armes v Nottinghamshire County Council 4 was handed down by the Supreme Court, the court was once again asked to reflect on how far the law has gone in yet another “parallel case”: Barclays Bank Plc v Various Claimants 5 and WM Morrison Supermarkets Plc v Various Claimants,6 which raised, again, intractable issues over the application of the first and second stage, respectively.

Facts

The facts of these cases, albeit deceptively simple, are remarkable. In Barclays Bank, the defendant bank was sued by a group of claimants who were alleged victims of sexual assault perpetrated by the late Dr Bates, a medical practitioner commissioned by the bank to carry out medical examination on applicants for jobs at the bank (the claimants), in the course of those examinations. The Court of Appeal accepted that “there has not been a decision which squarely addresses facts such as these”.7 The bank was held to be vicariously liable by both the High Court8 and the Court of Appeal.
In WM Morrison, a company operating chain supermarkets, was sued by its employees for alleged breach of the Data Protection Act 1998, s.4(4), misuse of private information and breach of confidence committed by Mr Skelton, a senior auditor of the defendant, who was tasked to collect and transmit payroll data relating to the defendant’s entire workforce to external auditors but, out of “irrational grudge”9 against its employer for subjecting

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