Vicarious liability and making law

For once, the PPI Blogger is putting on her (Scots) lawyer’s bunnet, to reflect on the case of WM Morrison (“Morrisons”) v Various Claimants [2018] EWCA Civ 2339. This case, which recently made the news, is in fact English. However, it reminded me of one of my first tutorials in law at Aberdeen University, in which I learned an important principle.

Before this tutorial in 1985, I would probably have thought that there are rules of law, and in any given civil or criminal case, the wise judges apply that law to the facts in as scientific and logical a way as they can, to come up with the correct answer to the sum.

We, a little group of students, had read and went on to discuss a case, the name of which alas I forget, concerning a schoolboy who went on a trip with his classmates in a hired bus. The bus driver was under instruction from his employers to take the boys back to their school, but was persuaded by them to detour in order to drop individual boys nearer their homes. He drove carelessly, there was an accident, and one of the boys was seriously injured.

The boy and his parents could of course have sued the driver for damages, but the bus company would have more money, so they were also sued, under the rule of vicarious liability – that an employer is liable for torts or wrongs (in Scotland, delicts) done in the normal course of employment. The company’s argument, entirely reasonable as the law then stood, was that the driver was not acting in the course of his employment because he was acting against their instructions and their interest by deviating from his route (wasting his time and their petrol.)

The judges of the Inner House of the Court of Session decided by a majority of 2 to 1 that although the driver was acting improperly by his employer, he was still on the whole doing the job they’d given him (badly), and not doing something completely maverick.

The tutor asked us, newbies to the law, why we thought they decided this way.

“Because they wanted the boy to get the money.” I still recall the exact words I used, the thrill of getting the point, and the sinful pride of being the first to say it aloud.

Law is not absolute, nor is it made in a vacuum. Judges interpret law in given cases, and thus make law, and these judges stretched the existing concept of vicarious liability to make it more generous, so that the bus company that had money and insurance could be sued for the actions of their employee, who probably had neither. (I think the company was Alexanders, once the biggest bus company in Scotland, and memorable to me because its offshoot, W Alexander and Sons (Fife) Ltd, was the local bus company when I was growing up.)

Any legal case has to be seen in context. Again, in criminal law, we studied the case of Chalmers v HMA [1954]. Mr Chalmers was a young man (I can’t remember exactly, but I think about seventeen) arrested and cautioned on suspicion of murdering a woman. Under persistent but non-violent questioning he confessed to the murder, and told the police where he’d hidden her belongings, which were indeed found in that place. He was convicted, and appealed, on the grounds that the police questioning was too much like bullying of someone so young, even though he’d received the usual official caution (“anything you say may be taken down…”) beforehand.

His appeal succeeded, all the above evidence was regarded as inadmissible, and he was presumably released. I don’t think anyone else was ever convicted of this murder, and one can only speculate on the feelings of the victim’s family.

Technically, this case is regarded as the absolute high-water mark of the rights of the accused in Scotland. It is certainly no longer, as they say, “good law.” On first looking at it, almost our whole class was appalled.

This case only makes sense when you remember that in 1954 murderers were still being hanged.

The judges of the Court of Appeal probably did not want to hang someone still in his teens, and therefore stretched the law on police questioning pretty much to breaking point in order to avoid this. As they say, “hard cases make bad law.”

Judges make law, and the way they make it is affected by the times they live in.

To return to vicarious liability, it has extended over the years to make employers liable for almost anything done at or near work by their employees. Following Morrisons, it seems now that an employer is legally liable for the criminal actions of an employee, at least in England, even when those actions were not only against the employer’s policy, but had no other motive than to harm the employer. I don’t think there was any suggestion that Morrison’s could have prevented their vengeful employee from leaking confidential information about his fellow employees, as he did.

I think, and you may think, that this is harsh on Morrison’s, but of course it’s in order that the victims should have someone wealthy to sue. The court in this particular case suggested that companies may need to insure against this kind of problem.

So I will finish by pointing out that lay people often complain that in any trouble, the people who benefit are the lawyers. Lawyers may respond by saying that the people who benefit in today’s society are the insurance companies.

(I am not going to apologise for the terms of Scots legal procedure, such as Inner House and HMA, used above, which make me feel very nostalgic. I’m only sorry that I wasn’t able to fit in the word “eik” (pronounced “eek!”))

Love from the PPI Blogger