The Supreme Court has given Judgment in the twinned cases of:
a) Barclays Bank plc v Various Claimants  UKSC 13, and
b) WM Morrisons Supermarkets plc v Various Claimants  UKSC 12
These cases deal with vicarious liability. For vicarious liability to attach, two considerations have to be met:
First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual?
Secondly, in what manner does the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defendant?
The first consideration was the subject of Barclays. The second consideration was the subject of Morrisons.
“27. The question therefore, is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In the doubtful cases, the five “incidents” identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically self-employed or agency workers are effectively part and parcel of the employer’s business. But the key, as it was in the Christian Brothers, Cox, and Armes, will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.”
“(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
(ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
(iii) the employee’s activity is likely to be part of the business activity of the employer;
(iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
(v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
“23. If, then, authority is not the touchstone, what is?… Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment. Lord Millet said as much in Lister v Hesley Hall Ltd…”
Lord Reed, having quoted the passage above, held as follows:
“24. The general principle set out by Lord Nicholls in Dubai Aluminium, like many other principles of the law of tort, has to be applied with regard to the circumstances of the case before the court and the assistance provided by previous court decisions. The words “fairly and properly” are not, therefore, intended as an invitation to judges to decide cases according to their personal sense of justice, but require them to consider how the guidance derived from decided cases furnishes a solution to the case before the court. Judges should therefore identify from the decided cases the factors or principles which point towards or away from vicarious liability in the case before the court, and which explain why it should or should not be imposed. Following that approach, cases can be decided on a basis which is principled and consistent.”
In summary, when the court is considering the second consideration – if the actions of the employee are such that vicarious liability should be imposed – the starting point is the general test laid down in Dubai Aluminium and then to see how the index claim compares to other decided cases, which may assist the court in deciding which side of the line the index claim stands.
In conclusion, the Supreme Court in these two twinned cases have not set down new principles to follow in cases involving vicarious liability, instead they have clarified the approach to take when considering either of the two vicarious liability considerations.