Vicarious Liability ' Where Are We Now?

• Published date: 23 October 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Gatehouse Chambers
• Author: Ms Jasmine Murphy

Vicarious liability has been a hot topic for more than five years. Every time you look away there seems to have been a new judgment. The Supreme Court has had three goes (WM Morrison Supermarkets PLC v Various Claimants¹, Barclays Bank PLC v Various Claimants² and Trustees of the Barry Congregation of Jehovah's Witnesses v BXB³) at installing some kind of flood defences to keep the tide of vicarious liability within boundaries and each time the tide retreats a little. MXX v A Secondary School⁴ is an example of the tide retreating a little since BXB. It is a reminder that the most difficult hurdle for claimants to overcome in the two stage test of vicarious liability for non-employees is the second part of the test - the close connection.

The close connection part of the test was the real focus of the Supreme Court in BXB. The Lord Justices were keen to stress that 'but for' causation did not satisfy the test. They also clarified that cases of sexual abuse required the same two-stage test as other vicarious liability cases and did not need further tailoring.

MXX was a case where a teenage schoolgirl was sexually assaulted following a week of work experience by the tortfeasor, 18 year old PXM, at the defendant school. At first instance the claimant lost on all grounds. On appeal, although the claimant succeeded on some grounds, she was still unsuccessful overall because the Court of Appeal considered that the second stage of the vicarious liability test was not made out. Although the Court of Appeal found that the grooming by PXM of the claimant had started during the week of work experience, and that the tort of intentional infliction of injury was made out and that PXM was in a relationship akin to employment, there was no close connection. At paragraph [80] of the judgment the Lady Justice Nicola Davies summarised the close connection test in the light of BXB:

The 'close connection' test has been clarified in BXB as being 'whether the wrongful conduct was so closely connected with the acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor's employment or quasi-employment' (para 58(iii)). 'But for' causation is not sufficient. A close connection is required, for example those placed in a position of authority over a child...