Date: Fri, 17 Jan 2003 18:18:35

From: Nick McBride

Subject: Dubai Aluminium v. Salaam

I agree with Andrew Dickinson that there is nothing in Lord Nicholls' speech in Dubai Aluminium that tends to suggest that he thought Morris v. C W Martin was not a vicarious liability case at all but was rather a case where the defendants were held personally liable to the plaintiff for the loss of her fur coat on the ground that their employee had put them in breach of the non-delegable duty of care that they owed the plaintiff to ensure the safety of her coat.

However, I agree with Jason Neyers that Morris is better analysed as being a case of personal liability, rather than vicarious liability. (Not least because it doesn't seem to me that the result in Morris would have been any different had the defendants given the job of looking after the coat to an independent contractor, who then stole it.) The judgments of both Lord Denning MR and Salmon LJ in that case seemed to base the defendants' liability on the fact that they were subject to a non-delegable duty of care to look after the plaintiff's coat that their employee put them in breach of by stealing it. See, for example, Lord Denning's statement that: 'If you go through the cases on this difficult subject, you will find that, in the ultimate analysis, they depend on the a nature of the duty owed by the master towards the person whose goods have been lost or damaged. If the master is under a duty to use due care to keep goods safely and protect them from theft and depredation, he cannot get rid of his responsibility by delegating his duty to another. If he entrusts that duty to his servant, he is answerable for the way in which the servant conducts himself therein. No matter whether the servant be negligent, fraudulent, or dishonest, the master is liable' ([1966] 1 QB 716, 725) and Salmon LJ's observation that: 'I am anxious to make it plain that the conclusion which I have reached depends upon Morrisey being the servant through whom the defendant chose to discharge their duty to take reasonable care of the plaintiff's fur. A bailee for reward is not answerable for a theft by any of his servants but only for a theft by such of them as are deputed by him to discharge some part of his duty of taking reasonable care' (ibid, 740-741). Admittedly, Salmon LJ does go on to say that 'A theft by any servant who is not employed to do anything in respect of the goods bailed is entirely outside the scope of his employment and cannot make the master liable' (ibid, 741) - which marks a shift into the language of vicarious liability.

So Morris cannot be said to be unequivocal authority in favour of the view - endorsed by the House of Lords in Lister v. Hesley Hall Ltd - that an employer will be vicariously liable in respect of a tort committed by his employee if there was a 'close and direct' connection between the tort and what the employee was employed to do. The most remarkable thing about the Lister case is that the notion of a non-delegable duty of care was not discussed at all in that case - for instance, counsel for the defendants in that case did not attempt to distinguish Morris on the basis that liability in that case was based on the defendants' having been put in breach of a non-delegable duty of care by their employee; instead they argued that the facts of Morris were 'very far from those of the instant case' ([2002] 1 AC 215, 218). And yet, while the concept of a non-delegable duty of care was not mentioned in Lister, the House of Lords' reasoning in favour of finding the defendants liable in that case was identical to the reasoning a court would employ in finding a defendant liable in a non-delegable duty of care case: the defendants had a duty to look after the plaintiffs, the defendants gave the caretaker the job of looking after the plaintiffs and the caretaker failed to do that job when he sexually abused the plaintiffs. The reasoning of the House of Lords in the Lister case - and their failure to keep separate the ideas of vicarious liability and personal liability for breach of a non-delegable duty of care - is very effectively criticised by Tony Weir in his new book on Tort Law (2002), pp 103-104.

Nick McBride
Pembroke College
Cambridge CB2 1RF

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