If at first you don’t succeed, try, try again. So the famous saying goes. It is unlikely that Morrisons supermarkets – or Wm Morrison Supermarkets plc to give its full title – had that saying in mind when having a second go at arguing the issue of vicarious liability in front of the Supreme Court: Wm Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 (“Various Claimants”). Full disclosure, mine is a Morrisons supermarket-of-choice-household.

Morrisons was slightly more successful this time round, successfully arguing that it was not liable for actions of the individual who leaked the personal data of 98,998 Morrisons’ employees onto the internet. Contrast this with their attempt at arguing that they were not vicariously liable for the gratuitous and violent assault by one of their petrol station attendants on a customer who had had the temerity to enquire as to the possibility of having some documents printed from a USB stick: Mohamud v Wm Morrison Supermarkets plc [2016] UKSC 16 (“Mohamud”).

Various Claimants is particularly interesting because we have that wonderful term of ‘explained’ in the headnote in relation to Mohamud (i.e. ‘you’ve all got it wrong’). For the Supreme Court to need to return to the issue and explain the earlier reasoning a mere 4 years later may seem odd. We are told in Various Claimants that Mohamud did not change anything – the outcome simply followed the proper application of the law to the facts. It would seem that not even a whiff of the common law fig-leaf of judicial activism should have been capable of being taken from Mohamud

Yet it is of interest that in Mohamud, the Recorder at first instance and LJs Arden, Treacy and Christopher Clarke got it wrong before the Supreme Court put them right. In Various Claimants Langstaff J, the Master of the Rolls and LJs Flaux and Bean got it wrong before the Supreme Court put them right. Accordingly, applying the unchanged law on vicarious liability, 8 judges, and hardly what anybody would call a lightweight set at that, got the wrong answer.

The Supreme Court have now (re-)stated the test for vicarious liability to be as follows:

was [the wrongdoing] so closely connected with acts he was authorised to do that, for the purposes of the liability of his employer to third parties, his wrongful [act] may fairly and properly be regarded as done by him while acting in the ordinary course of his employment” {Various Claimants at [31]}.

Whilst known as the close connection test, the sting for all lawyers will remain in the use of the words ‘fairly and properly’ as the touchstone. These words “are not… 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.” {Various Claimants at [24]}

Another point worth mentioning is the addition to the mix of ‘motive’ when considering whether the wrongdoing was closely connected to what the wrongdoer was authorised to do. In Mohamud Lord Toulson said motive was immaterial. In Various Claimants it was explained (that word again) that in fact motive was material insofar as the taking of action must be purporting to further the employer’s business.  Hence in Various Claimants the leaking of data onto the internet was designed to harm Morrisons and as Lord Reed noted at [36] “Perhaps unsurprisingly, there does not appear to be any previous case in which it has been argued that an employer might be vicariously liable for wrongdoing which was designed specifically to harm the employer.”  Where the line falls for the attachment of vicarious liability to a nightclub between equally violent assaults by a racist bouncer and a bouncer who throws out his sister’s abusive ex-partner would therefore be of interest. Both are acting too far in the course of their employer’s business, but would the fact that one has a personal connection between victim and attacker serve to prevent liability attaching to the nightclub? Indeed, would a positive finding of a racist intent, a finding not made in Mohamud where the reasons for the violence were unclear, serve to protect an employer?

“So” I imagine the Supreme Court collectively thinking as the latest judgment was handed down, “have you got that now?” I assume Morrisons hope they have.