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

  • Judith Leader

    2nd November 2018 at 4:18 pm Reply

    I suppose in one sense what you have written shows the humanity of the judge, on the other hand I find it rather frightening that a judge has so much power that it depends where his sympathies are. So is the law an ass, I don’t know but then I am not a lawyer.

  • Stephen Sheridan

    4th November 2018 at 9:41 pm Reply

    An interesting case. I wonder if there are any differences in this case, between the Scottish legal system (which I understood is based on a Roman system) and the English system (based on the Anglo-Saxon Common Law)? I looked it up online and found several different case successful case referrals relying on its precedent and one law firm even saying “it is still good law”. The law can often be an ass and judges despite often being very clever, are just as prone to be lacking in wisdom and common sense as anyone else. They are sadly also not immune from political activism (although they should be in the UK – unlike the politicised US Supreme Court). Community spirit being somewhat different in 1954 than it is now, I suspect that even if released the accused did not have much of a subsequent happy life.

    If the judge was motivated by the danger of it becoming a hanging conviction, then that is ample of evidence of how the death penalty distorts the justice system. So there is at least that to take as a good lesson.

    The difficulty with the Morrisons case is that it makes a mockery of the systems and processes which companies put in place to protect themselves from employees who break the law. The judge’s remarks on insurance are facile and demonstrate a total lack of understanding of the implications of the judgement, which will probably mean forcing employees to sign more onerous contracts and open themselves up to more litigation by the employers. It also means that this employee is held unaccountable for their actions and thus encourages irresponsible activities by individuals. The costs of all this feed back to us as citizens one way or another.

    Judges making law based on their own prejudices is a bad system. However our elected politicians craft appallingly bad laws that often fail in practice or are merely irrelevant. This seems puzzling when you consider that some many of them are lawyers themselves, but then becomes more explicable when you realise that most of then were rubbish at it, which is why they became politicians. Still we keep electing them, so we can’t really complain, when most people who would actually be good at it, don’t want to do it, because of the strain it would put on their family life and the unpleasantness of it. Ancient Athens often selected citizens for public office by lot and looking at the quality of the current Cabinet and Shadow Cabinet, I honestly think picking a group of people randomly off the street would have a better chance of having a quality team.

    Sorry that turned into a bit of rant – I’m suffering with fluey swollen glands at the moment and I think it turned my head a bit 🙁

    • Judith Leader

      4th November 2018 at 11:52 pm Reply

      I am sorry about your swollen glands, but the remarks you made the most informative and helpful and I can’t help but agree with what you say (this is from someone who has had no training in the law and is on the nonuniversity, ignorant class). You however are legally trained and from what a blogger said I cannot help fearing for the law of this land, especially the politicians we have and what our children and grandchildren well say about choices we have made in ignorance some believing the lies and misrepresentation made.This was not meant to be an anti Brexit rant but surely what you said about our politicians we have elected shows what can happen.

    • Judith Leader

      5th November 2018 at 12:00 am Reply

      Sorry about the mistakes in my comments I was dictating them into my iPad and didn’t check it properly before it went.

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