1. “If this were true, it would be possible for an employer to be held liable for the breach of a duty that only his employee owes. If an employee owed a statutory or contractual duty, but not his employer there could be vicarious liability.”

 

• The first point seems to be accepted by Morrison v Claimants [2020] UKSC 12 where the employer had not committed a breach of statutory duty, but the employer had. The vicarious liability claim was alive and well, though it failed on Stage 2). See also Majrowski v St Thomas’s NHS Trust.
• If the duty is contractual, proponents of orthodoxy would presumably say that in theory, there is no reason why the employer cannot be vicariously liable for that breach, but vicarious liability will rarely arise because the employee’s breach of duty usually falls outside the scope of employment. (Someone once made this argument to me anyway)”

 

Morrison v Claimants is, of course, obiter on this point. The better view, imo, is that Morrisons were data controllers under the Data Protection Act, and so owed exactly the same duty as their employees did, so the problem didn’t arise. (It would be a bit odd if they weren’t data controllers.) Indeed, it seems to me to be much more readily arguable that individual employees weren’t the data controller, and so committed no statutory wrong personally. The High Court of Australia decision in Darling Island v Long is better on this point, and that is ratio.

 

I expect that the answer most would give to the contract problem is “that is contract, this is tort.” Which isn’t satisfactory, of course.

 

 

2. “If this were true, if an employer owed a statutory duty that employees did not owe, an employer could not be vicarious liable for acts that are not wrongs by the employees.”

 

• This again seems to be the law today. Not a statutory duty, but see eg Axon v Ministry of Defence [2016] EWHC 787 (QB): ‘it is only if [the employee] committed a tort against [the claimant] that any issue of vicarious liability could arise’. I would be surprised if courts analysed a statutory duty differently.

 

Which would be *really* odd in relation to statutory duties not to do X that are imposed on corporate employers, but with no equivalent statutory duty on their employees. (eg if as in Morrisons the statutory duty in relation to the entrusted information from customers is only imposed upon the employer). UK sex and race discrimination law used to be like this, but the Equality Act now has an express rule of attribution in it.

 

 

3. “If this were true, then where an employer is vicariously liable for a serious wrong, jointly with others, for purposes of contribution they wouldn’t be treated as the serious wrongdoer.”

 

• Doesn’t Lister v Romford Ice and Cold Storage [1957] AC 555 deal with this? (pleaded as a contribution of 100%)

 

 

I think it is best dealt with in Dubai Aluminium v Salaam, where the employer is treated as the wrongdoer for purposes of contribution (perhaps ironically given what the court actually say the basis of vicarious liability is).

 

 

4. “As a matter of the positive law I find Stage 2 of vicarious liability now very difficult to apply.”

 

I wouldn’t take it too seriously. We’re just inching, painfully, back to the Salmond test, outside of cases of non-delegable duties.

 

The history of the English law of torts is so odd over the last 25 years. So good in relation to some areas that were previously a mess (“pure” economic loss, liability of public bodies) and so bad in relation to vicarious liability.