As I sit in my sunny COVID-19 office reading the Supreme Court's judgments in two recent cases, I wondered how would they apply to the latest 'explosive' story line in the everyday life of country folk? For those you who do not know, I will summarise the facts as follows:
(1) a building contractor is awarded a contract for refurbishment works to the luxurious hotel, the works include the replacement of the existing kitchen floor;
(2) the building contractor 'employed' (potential story line spoiler alert) a workman to carry out the work;
(3) the workman uses an inappropriate product (petrol) to remove the existing floor covering as opposed to using a more expensive proprietory product (after all, profits are tight in construction);
(4) the workman who (another potential spoiler alert), has not eaten for some time, decides to cook something and lights the grill; and
(5) 'BANG' (petrol fumes explode) causing serious personal injury to a hotel's employee and damage to property.
Of course, I am referring to The Archers and where, for now, the residents of Ambridge are blissfully COVID-19 free but this might be due local government funding cuts resulting in the lack of a regular bus service to/from Borchester.
The owners of the building contractor say it was all the workman's fault because he used petrol rather than the more expensive proprietory product. Ignoring issues such as public and employer's liability insurance, what would the Supreme Court say about the building contractor's liability?
The Supreme Court judgments - Barclays Bank v. Various Claimants & Morrisons v. Various Claimants (1 April 2020)
The answer (as the post work G&T was delivered to the office table) is an interesting one. I say this for the following reasons:
- two key elements have to exist for vicarious liability to arise: first, there must be a relationship between the parties that makes it fair, just and reasonable to make one pay for the other's wrongdoing, i.e. in this case between the building contractor and the workman, and the employer-employee relationship is the classic example of this; and second, there must be a 'close connection' between that relationship and the wrongdoing. This would also readily arise where the wrong occurred in the course of employment;
- in respect of the relationship element, the law has traditionally imposed liability where there is a contract of employment but not where there is a contract for services because in the latter one is dealing with the so-called 'independent contractor'. However, in light of Barclays (a case concerning certain pre-employment medical examinations carried out by a certain Dr Bates resulting in no less than 126 sexual assaults), the test to be applied is whether the individual, i.e. Dr Bates in Barclays or the workman in The Archers, was carrying on business on his own account or whether he was in a relationship "akin to employment"? While the Supreme Court did not set out any definitive criteria to be applied when answering this question, its decision does emphasise the distinction between (i) a relationship "akin to employment" and (ii) that of the "independent contractor". Of course each case will have to be considered on its facts; and
- in respect of the "close connection" element, the Supreme Court in Morrisons decided (by reference to a worrying number of cases involving petrol station attendants) that the question is whether the wrongful conduct is "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 [conduct] may fairly and properly be regarded as done by him while acting in the ordinary course of his employment”? In so doing, there was a need to distinguish between (i) cases where the employee is, when committing the wrongdoing, pursuing his employer's business albeit misguidedly and (ii) ones where he is furthering his own interests, i.e. on a 'frolic of his own'. In the latter case the employer will not be vicariously liable as was the case in Morrisons when an employee uploaded personal employee data to the internet due to having an "irrational grudge against Morrisons" and motive was also held to be highly material.
The Archers - vicariously liable or not?
Applying these two Supreme Court decisions it is clear that the building contractor is liable for the workman's use of petrol if he is an employee. This is because there is a relationship (employer-employee) between the building contractor and the workman who commits the wrong. That is the first element satisfied. As for the second element ("close connection") it is clear that the workman was, for whatever misguided reason, furthering his employer's business.
If, however, the workman was not a direct employee, I consider there are grounds for the building contractor to be vicariously liable for his wrongdoing and the resulting damage. This is because there is no evidence that the workman was carrying on his own business, i.e. acting as a specialist flooring removal sub-contractor. This looks very much like a workman (even if self-employed) working under the direction of the building contractor and, therefore, a relationship "akin to employment". That is the first element satisfied and the second key element ("close connection") is also satisfied because the workman was, for whatever misguided reason, furthering the building contractor's business.
Of course, The Archers' plot line will develop and the outcome could end up being different if the workman was working on his own account and was 'pocketing' the cost saving due to his own greed. For now, however, I am satisfied a Court is, in light of the decisions in Barclays and Morrisons, likely to find the building contractor vicariously liable for the workman's conduct.
The law is constantly developing and so too is The Archers which is now officially "a contemporary drama set in a rural setting" rather than "an everyday story of country folk". How times change.
Is the coronavirus going to change The Archers forever? It hasn’t so far, because of the six-week lag time between recording and broadcast, but it will soon. Radio 4 is broadcasting fewer episodes per week, down from six to five initially, and soon reduced even further to four.