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
• topic: Employment Law

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...