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‘NOT MY EMPLOYEE, NOT MY LIABILITY’: A REVIEW OF THE LAW OF VICARIOUS LIABILITY, ITS APRIL 2020 SUPREME COURT AIRING, AND ITS RELEVANCE TO THE EQUESTRIAN INDUSTRY AND OTHER SMALL BUSINESSES

In April 2020, the Supreme Court in WM Morrison Supermarkets plc v Various Claimants [2020] and Barclays Bank plc v Various Claimants [2020] overturned the decisions of the Court of Appeal in applying the law regarding vicarious liability of employees and others (and deciding in both cases that the defendant companies were not liable for the acts in question). The scope of responsibilities which the employment relationship brings, together with an awareness among many businesses of the classification worker, along with the more familiar employed/ self-employed status, makes an examination of the outcomes and potential impact of these cases of wide, practical interest for those running businesses, large or small. The review concluded that there had been no dramatic change in the law but that the cases provide a measure of comfort to employers in something of a common-sense view being taken as to the scope of vicarious liability. They also add to the body of case law, helping to ensure that future issues can more clearly be reasoned out of court, with the detailed steer on the application of legal principles which a Supreme Court judgment provides.


INTRODUCTION
In April 2020, the Supreme Court re-visited and clarified the law of vicarious liability in two cases: one involving an employee (WM Morrison Supermarkets plc v Various Claimants 1 ) and one involving someone not employed by the organisation against whom claims were being considered (Barclays Bank plc v Various 'NOT MY EMPLOYEE, NOT MY LIABILITY': A REVIEW OF THE LAW OF VICARIOUS LIABILITY, ITS APRIL 2020 SUPREME COURT AIRING Claimants 2 ). In both cases, the decisions of the Court of Appeal were overturned. This paper reviews the development of the law and key principles to enable the cases to be set in context, with a conclusion on possible implications and practical application. First, though, a consideration of why the operation of vicarious liability is particularly worthy of understanding by equestrian operations and any other businesses who work with a range of freelance/sub-contractor personnel.

PARTICULAR RELEVANCE FOR EQUESTRIAN BUSINESSES
There is, of course, nothing expressly equestrian about the principle of vicarious liability but it is particularly pertinent because of the employment status of many working in the sector. All employers need to be aware of the law in this area in terms of the significance of becoming an employer (along with a gamut of employment requirements such as insurance, salary, pension and other consequences). If the detail is not always understood, most appreciate that an employer has considerable responsibilities and, ideally, would access advice accordingly, preferably from legal and financial professionals but at the very least, through '.gov.uk', or other authoritative online information. 3 What is less well known, and is a common situation in the equestrian industry, is that there are two circumstances where there might be vicarious liability for those who are not treated by the business as employees. Firstly, those labelled self-employed may, in fact, be deemed by the courts to be employees in the face of a claim. This is the most likely point of relevance to SMEs, 4 equestrian or otherwise.
Secondly, (although far less common) even where the court does not override and re-designate the existing relationship of the parties, it may be deemed that the relationship is so close that it is, for the purposes of vicarious liability, akin to employment. 5

WHAT IS VICARIOUS LIABILITY?
The concept of vicarious liability will be known to most readers: the legal principle that someone with no fault (normally an employer) can be liable for the wrongs of 2 [2020] UKSC 13. 3 ACAS would be particularly recommended for all employment matters: www.acas.org.uk. 4 SME = small and medium-sized enterprises, per European Commission Recommendation C(2003) 1422, Article 2 -small enterprises have < 50 employees and/or a balance sheet of ≤ € 10 million, so the majority of equestrian businesses are small enterprises under this standard business categorisation. 5 As discussed below; see also A Silink and D Ryan, 'Vicarious Liability for Independent Contractors' (2018) 77 CLJ 458. another, 'vicarious' stemming from the Latin vicarius meaning 'substitute'. 6 Lord Dyson in Mohamud v WM Morrison Supermarkets plc noted the difficulties of summing up the law in a simple and coherent form opining: 'To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera.' 7 The lack of certainty and precision comes from the infinite number of possible human relationships and situations, but let that not deter us from gleaning a framework of principle.
The concept does not appear in the early histories and treatises on English law 8 although Sir John Baker 9 in the authoritative Sources of English Legal History 10 cites, among other early cases, Beaulieu v Finglam 11 where Markham J noted: 'If my servant or lodger puts a candle on the wall and the candle falls into the straw and burns the whole house, and also my neighbour's house, in this case I shall answer to my neighbour for the damage which he has suffered.' 12 Notwithstanding these medieval 13 19 and Sir Robert Wayland's Case, regarding a servant cheating on tradesmen for whom the master had provided monies to pay, where Holt observed the truism that 'the master at his peril ought to take care what servant he employs; and it is more reasonable that he should suffer for the cheats of his servant than strangers and tradesmen'. 20 In Hern v Nicolls, an overseas factor (agent) falsely represented the quality of silk being purchased. 21 In finding the employer liable for the wrong, policy thinking can clearly be seen in Holt's observation: 'seeing somebody must be a loser by this deceit, it is more reasonable that he that employs and puts a trust and confidence in the deceiver should be a loser, than a stranger.' 22 And in Middleton v Fowler, Holt distinguished the situation where an employee acted outside their authority and was not in any way carrying out their authorised work from a case where a coachman accepted a fee for looking after luggage (which was not part of his driving job). 23 The employer was sued when the luggage was lost. Holt noted that '…no master is chargeable with the acts of his servant, but [i.e. only] when he acts in execution of the authority given by his master, and then the act of the servant is the act of the master'. 24 The thinking was, and is, that an employer (as a matter of fact) causes the risk, that is the situation in which the wrong was executed, and (as a matter of policy) is better placed to compensate the victim, particularly through insurance. The relationship between law and policy is referred to in the 2020 Supreme Court cases and will be considered further below.
It may be noted that the early cases fell short of ascribing vicarious liability for criminal matters, per Rex v Huggins and Barnes, where an inmate of Fleet prison died due to the conditions and neglect of the gaoler, Barnes, and a charge of murder 16  was brought against both the gaoler and the prison warden (Huggins). 25 As against the warden, although it was acknowledged that he 'had the care and custody of the prisoners' it was found that a principal or employer could only be criminally liable if the 'deputy' acted by 'command, consent or privity of the principal'. 26 This was superseded and employers can most certainly be liable for criminal, as well as civil, wrongs. 27 Laski's paper explored both the development and policy of vicarious liability through to 1916, in England and the United States of America, and couches it in terms of the law developing to reflect society from the supremacy of the individual property holder and paternalism of medieval times, to the social and commercial community of interdependence of an industrial society, aiming ostensibly, at the 'maximum public good' 28 . He concludes his piece (unsurprisingly, given the author) with the welfare of society being the ultimate aim of the development and application of legal principles and this can be seen in some, 29 although by no means all, 30 of the 21st century developments explored below.
Laski was writing at the same time as another expansive commentator on the matter, Thomas Baty, 31 who compared vicarious liability to a upas tree (Antiaris toxicaria), the source of the poison for arrows. 32 This rather dramatic allusion was picked up in the title of Warren Swain's 33 recent review of the development of the law, 34 which particularly dissects the distinction between strict liability for another's wrong (the basis of vicarious liability today) and the master's tort theory (whereby the master, or employer, is deemed to be primarily liable because the employee's acts are said to be the act of the master). The idea of no-fault, strict, liability for another's wrong was difficult to reason when tort was largely couched in terms of a 25   quasi-tort, borrowed from the Roman/civil law principle of quasi-delict, to avoid the artificiality of no-fault torts. He points to the step in that direction taken in Rylands v Fletcher in the famous judgment of Blackburn J in the Court of Exchequer Chamber, 40 approved in the House of Lords, 41 in basing a new head of strict liability on the Roman sic uti suo ut non laedat alienum ('use your own property so that it will not harm the property of another'). 42 This was not strict liability in the complete absence of fault, but strict liability based on an underlying obligation due to prior decisions (land use, in the case of Rylands, engaging in a relationship and activity, in the case of vicarious liability).
As society evolved and corporate defendants became prevalent, there was a further shift towards public policy and the compensation of victims, as opposed to the idea of a stranglehold of tight legal theory in the face of a perceived moral obligation. This commercial and moral view of legal development, coupled with the necessary constraints of legal theory, was espoused on both sides of the Atlantic, by such as Oliver Wendell Holmes Jr. 43 The changing mores in society influencing legal development can be seen in a close relative to the law of vicarious liability to third parties, that of an employer's liability to employees who are harmed by colleagues. The old law of common employment 44 was such that employers were not liable for injuries to workers caused by colleagues as workers were said to have accepted the risks of employment. This harsh principle was expressly overturned by section 1 of the Law Reform (Personal Injuries) Act 1948, 45

ESSENCE OF THE MODERN LAW
There are, then, two principal requisites for vicarious liability to operate: the proximity between the parties, and the proximity between the wrong and authorised work.

The Relationship Between the Parties
There must be a proximate relationship between the wrongdoer and the posited defendant. This is normally an employment relationship but the two more problematic situations are, as noted, those treated as self-employed but deemed by the courts to be employees, and those who are acknowledged by the courts not to be employees but deemed to be in a relationship 'akin' to employment for these purposes. There is also the relatively recent complication of the designation 'worker'. If someone is clearly an employee then there is a measure of clarity, on that question at least. That there is no vicarious liability for the wrongs of sub-contractors has been set out at least since Quarman v Burnett 54 and repeated many times since. 55 In Kafagi v JBW Group Ltd 56 it was argued, on appeal, that Various Claimants v Catholic Child Welfare Society 57 (generally known as the Christian Brothers case) and Cox v Ministry of Justice 58 were such that the trial judge was wrong in deciding that as wrong-doers were not employees, then there could be no vicarious liability of the party who engaged them. But it was also found that the law had not, in fact, altered to simply absorb non-employees as being covered, and only in atypical cases where there was the finding of a relationship 'akin' to employment could there be vicarious liability for a sub-contractor (and Kafagi was not such a case). Singh LJ noted: '… it is important to note that this development has not undermined the conventional distinction between a contract of employment and a contract for services, which continues to be relevant in the vast majority of situations.' 59 54 (1840)

But Who is an Employee, as Opposed to Self-Employed?
Whilst this paper is looking at whether there can be vicarious liability for another's wrongs, the deeming of someone hitherto treated as self-employed as being employed is most commonly encountered with regard to taxation or health and safety. The final categorisation will depend on the facts of each case but key features for employment status are mutuality of obligation, 60 a sufficient measure of control 61 and the integration test. 62 These factors are now embraced and extended in what has been termed the economic reality test. 63 Control is manifest in factors such as the provision of one's own equipment and materials, choice of timing and ability to substitute personnel, which would all point towards self-employment. Integration relates to whether a person is autonomous and appears to be in business on their own account, or is an integral part of an employer's business, with the employer bearing the economic risk. But the matter is now very much considered holistically, as highlighted recently in HMRC v Professional Game Match Officials Ltd 64 and Varnish v British Cycling Federation 65 where the Tax and Chancery Chamber and Employment Appeal Tribunal, respectively, provided useful reviews of employment status. In short, the position is far from formulaic. In some situations, there may be little choice of timing, how a job is done or the possibility of substitution whilst still being a genuine situation of self-employment. Conversely, there may be an overt, contractual right of substitution of personnel (traditionally taken as fatal to employed status 66 ) but, on the facts, a clear finding of employed 60 Collins v Hertfordshire County Council [1947]  The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture …, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. 69

Who Might be in a Relationship 'Akin' to Employment?
This interpretation of relationships has largely been found in non-commercial settings such as cases involving religious organisations, 70  and Pimlico Plumbers Ltd v Smith. 78 The category ascribes some employment rights whilst falling short of full employment status. Leading cases considered in Pimlico Plumbers took the overriding factors as being whether the worker was in business on their own account, taking the commercial risk 79 or whether the worker was in a position of subordination, 80 a vital strand echoing down from Sir John Holt discussing the servant working for his master's benefit in Turberville although it is more nuanced in that sub-contractors will obviously be working for their engager's benefit, as well as their own, and this is not, of itself, enough to establish vicarious liability. 81 The modern, more complex range of statuses, with worker added to the employed and self-employed, prompted Butlin and Allen 82 to suggest that a coherent approach in embracing s230(3) Employment Rights Act 1996 'workers' as being covered by vicarious liability would be helpful. Their paper pre-dated this approach being expressly rejected by Lady Hale in Barclays Bank, of which more below. 83

Employees Working on Loan to Another
It is sometimes that an employee carries out work for another, to whom they are merely loaned by their employer and are not under a contract of employment to that other. (Distinguish this from individuals who have more than one contract of employment.) Whether the main or temporary 'employer' is liable will depend on the usual tests of control and integration used to distinguish employees from the self-employed as rehearsed above. In Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd 84 it was held that the burden of proof is with the main employer to establish that liability has shifted to the temporary employer. This is not easy but the principle was confirmed more recently in 78

Non-Delegable Duty of Care
At this point, it might also be useful to refer to a further strand of the development of the concept of no-fault liability. Clearly, although there is a no-fault basis to vicarious liability for the wrongs of employees (or those akin to employees), it is based on a conscious adoption of a relationship. A further development has been that of the idea of non-delegable duty. This is where X has been found liable for the wrongs of Y, who is not an employee (or akin) because the situation is such that it is held that the duty of care cannot (at law) be delegated to a competently appointed sub-contractor (as would be the norm). For example, in Woodland v Essex County Council a child was left severely brain damaged after a swimming lesson conducted by a self-employed teacher engaged by the local authority. 87 Rather than seeking to categorise the teacher as 'akin' to an employee and thus embrace the usual principles of vicarious liability, it was held that some duties were non-delegable and the council was primarily responsible for children in swimming lessons.
It is generally supposed that the idea of a non-delegable duty is an exception, rather than an extension, to the principle of vicarious liability in that it does not seek to categorise non-employees as akin to employees, but imposes primary liability on the engaging party in certain, narrow, circumstances largely involving either hazardous activities in a public place, 88 or children or hospital patients. 89 This is not, however, universally accepted and some argue that the concept of non-delegable duty is simply a further device to ascribe vicarious liability rather than a separate head of primary liability. Why does this matter? If the former, it might, for example, colour the extent of relationship which are deemed to be within the scope of consideration. 90 85  Once it has been established that the relationship is such that the principle can apply, it must then be established that there is a sufficient connection between the wrong and the work.

The Relationship Between Authorised Work and the Wrongdoing
In the early years of the development of this area of law, there would be liability only for expressly authorised acts. Readers will be familiar with words such as 'in the course of employment', that is where the wrongdoer is carrying out his or her authorised work, albeit in a wrong or even expressly unauthorised way, as opposed to them being on (to use the quaint and well-known phrase) 'a frolic of their own'. 91 In Limpus v London General Omnibus Company 92 the employer was vicariously liable for injuries caused when a horse-drawn bus driver ran into a competitor's bus, despite written instructions that drivers 'must not on any account race with or obstruct another omnibus'. 93 The reasoning was that the driver was carrying out his authorised work, with the intention of assisting his employer's business, albeit that the practical realisation of those intentions was misguided and the driver was carrying out his work in an expressly unauthorised fashion. Contrast Beard v London General Omnibus Company where the employer was not liable when a conductor drove the bus, as he had no authority to do such a thing, driving being entirely outside the scope of his work. 94 This was, for many years, taken to mean that even unauthorised acts had to be so closely connected with authorised acts as to be regarded as doing those authorised acts, however improper the manner, as seen in Rose v Plenty where Lord Denning judged: 'In considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done.' 95 Here, a milkman had been expressly forbidden from allowing children to help on the milk float 'in any circumstances'. 96 When a child helped and was injured through the milkman's negligent driving, the employer was found vicariously liable. Denning, however, distinguished these cases on the basis that in Rose, the milkman was using the child (albeit against instruction) in furthering the employers business, as opposed to a prohibited act with no connection at all to the commercial activity of the employer.
This reasoning was set out in Salmond and Heuston on the Law of Torts as: 'A master, as opposed to an employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes, although improper modes, of doing them'. 99 Whilst providing a logical result in many cases, Lord Toulson in Mohamud v WM Morrison Supermarkets plc, 100 observed that this construction did not, indeed could not, work with, for example, sexual abuse cases 101 as such wrongs could, in no way, be seen as carrying out the work of the employer. Rather, Lord Toulson drew on Lord Nicholls in Dubai Aluminium Co. Ltd v Salaam 102 which looked for such a close connection with authorised actions that the wrongful act may 'fairly and properly' be regarded as having been carried out 'in the course of employment', not simply equated with, however tenuously, authorised acts. What particularly came out of Dubai and Mohamud was that this cannot be regarded as 'painting by numbers'. A lack of precision cannot be avoided, courts must make evaluative decisions in each case applying principles from previous cases, with a reasoned explanation as to the application or disregard of those factors, to allow the development of the law on a principled basis rather than through 'a personal sense of justice'. 103

EMPLOYEE'S LIABILITY
Although pursued relatively rarely, it is worth noting that despite the principle of vicarious liability operating to support the victim in being able to claim directly against employer, the perpetrator may be no less personally culpable. Later cases have been distinguished such that in Williams and another v Natural Life Health Foods Ltd there was deemed to be no independent assumption of responsibility by an employee so when a company went into liquidation, there could be no direct recourse by the claimant to an individual. 106 In Merrett v Babb, however, the Court of Appeal found that John Babb, a chartered surveyor who had carried out a negligent valuation, was personally liable. 107 A normally 'straightforward' vicarious liability action against an employer was not possible due to the employer's insolvency, the trustee in bankruptcy having failed to take out insurance run off. 108  Confederation to adhere to such an arrangement, as cited in a report commissioned in the arguments that Lister is no longer applicable and acts as a reminder of employees' exposure. In fact, the employee in the case had insurance through her professional body 114 but insurance was not compulsory and, clearly, employees taking out insurance for personal liability at work is not the norm.
Having looked at the development and general operation of the law and some of the issues surrounding (a) whether an employer will be potentially liable for a particular wrong-doer's actions, (that is, is the perpetrator an employee or in a relationship akin to employment?) and, if so, (b) whether the actions are closely enough related to work to be the subject of vicarious liability, it is instructive to review the two cases both heard by the Supreme Court in November 2019 and reported in April 2020. Barclays Bank addressed question (a). It involved the wrongs of someone not employed by the defendant bank. In WM Morrison, (b) was at issue, that is an employee doing something clearly outside the scope or 'sphere' 115 of his role.

Barclays Bank plc v Various Claimants
The Barclays Bank plc case involved a medic 116 carrying out routine examinations on prospective employees of Barclays. 117 Many of the recruits were young women, often 16-year-old school leavers. A total of 126 claimants in a group action alleged sexual assaults during examination, between 1968 and 1984. Of the two key questions in establishing vicarious liability, the first question was at issue: Did the doctor have a close enough relationship to the defendant bank for them to be vicariously liable (if the acts were found to have a close enough link to the work he was engaged to do)?

The Decision
In hearings to decide whether Barclays Bank was an appropriate defendant, both the High Court and the Court of Appeal held that the Bank would be vicariously liable for the doctor's assaults (should they be proved). The Supreme Court overturned this. The doctor was not an employee, nor was he akin to an employee. He worked for several other organisations (including as a part-time employee of the NHS) and on his own account. He was paid no retainer. He was free to refuse work offered. Thus, he was not operating in the course of the Bank's business but for his own. The case raised a number of issues in reviewing the position.

More than one Vicariously Liable Party
The case drew on earlier decisions in establishing that parties beyond the direct employer and employee relationship could be joined in action. In Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd, 118 for example, there was liability for a subcontractor and, in a diversion from case law dating to 1826, 119 shared vicarious liability between two parties where a subcontractor (second defendant) was provided with a fitters' mate employed by the third defendant company. The fitters' mate negligently caused considerable damage and the second and third defendants were each held to be 50 per cent liable with the measure being, not only formal employment relationships, but whether a worker 'is so much a part of' the business or organisation that the defendant should take on responsibility. 120

'Akin' to Employment
The claimants in Barclays argued (successfully at lower levels) that cases such as the Christian Brothers 121 and E 122 had extended the law on a basis of what was 'just and fair' rather than the courts having to be tied to a trite dis-application of vicarious liability to non-employees 123 -echoes of the policy basis of legal development discussed above. But it was found that the requirement of establishing an employment relationship had not altered, and cases such as Christian Brothers and E simply found, on their facts, a relationship so closely 'akin' to employment that vicarious liability could be found. operate, care was taken to distinguish the factors stated from a limit to what was required. 125 In addressing them along with a holistic consideration of the relationship, two factors were discarded ((i) policy and insurance should not impose liability, of itself; and (v) control is nuanced and many employees are under less apparent control than non-employees) but (ii) that the activity was carried out as a result of activity undertaken on behalf of the defendant, (iii) that the action was part of the business of the defendant and (iv) that the defendant created the risk were clearly apposite and provided a connection, but Lord Phillips concluded: 'Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.' 126

Non-Delegable Duty
The principles surrounding a non-delegable duty, as seen above in the summary of the Woodland v Essex County Council 127 case, were drawn on in Barclays as, rather than ascribing vicarious liability and seeking to extend the principle to cover a non-employee, it was held that some duties were non-delegable. This has, however, been held to be applicable in very narrow circumstances. In Armes v Nottinghamshire County Council, 128 for example, it was found that (unlike Woodland) there was no non-delegable duty of care imposing primary liability on a local authority for foster children placed with carers. The nature of the foster carer role was too wide to ascribe such a duty on the council. There was, however, on the facts of the case, vicarious liability given the close relationship between the local authority and the fostering (in line with Christian Brothers and E). The fostering (during which sexual abuse took place) was an integral part of local authority activity, the local authority created the risk of harm and foster parents could not be said to be carrying on an independent business on their own accounttheir role was inextricably linked to the council.
These cases might seem to point to the law of vicarious liability having been extended beyond employees, per the lower courts in Barclays existing principles in ascertaining in what cases a relationship 'akin' to employment might be found, that is where the wrongdoer is engaged in the defendant's business rather than their own business, echoing Lord Sumption in Woodland, that the law has: '… never extended to those who are truly independent contractors'. 131 And there was no suggestion that the Bank's relationship with young, adult prospective employees embraced a non-delegable duty in the nature of Woodland.

WM Morrison Supermarkets plc v Various Claimants [2020]
A supermarket employee, an internal auditor, released personal and banking data of nearly 100,000 Morrison's employees onto a publicly accessible website. This was a deliberate, planned act of data breach carried out due to a grudge held by the employee against Morrison's following disciplinary proceedings. Both the High Court and the Court of Appeal found that the supermarket was vicariously liability for the wrong.
As indicated above, in establishing vicarious liability there are two vital questions: (a) was the perpetrator of the wrong an employee (or akin to an employee), and (b) was the wrong carried out within that relationship? In Morrison, question (a) was not in doubt.
In the Supreme Court, Lord Reed cited as authoritative 132 the framing of question (b) as expressed by Lord Nicholls in Dubai: 133 was '… the wrongful conduct … 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 his employment?' 134 Particularly interesting was Lord Reed's dissection and disposal of the Court of Appeal decision 135 which had drawn on Mohamud and quoted it as authority for ascribing vicarious liability (a) 'the principle of social justice going back to Holt CJ', 136 i.e. a policy based argument (b) liability where an employee's conduct was a 'seamless episode' or 'unbroken chain of events', 137

b. The Connection Between the Wrong and the Employment
Connection should not simply be looked at in terms of time and causation, rather it is a matter of the substance on the facts. Conscious and malicious disclosure of unlawfully captured data on his own computer could not be construed as part of the employee's authorised function. It was established law that, even where carrying on acts of a similar kind to those authorised in employment, the context could stray so far from that authorisation such that the employer would not be liable. 141 In short, is the employee furthering his or her employer's business 'however misguidedly' 142 or, conversely, acting as 'as stranger in relation to his employer', 143 that is with no connection to employment? A number of Caribbean shooting cases which were decided in contrast served to illustrate the idea of connection (albeit that shootings are not, hopefully, the most relevant of situations to most). In Attorney General of the British Virgin Islands v Hartwell 144 the employer was not vicariously liable when a policeman injured a bystander when shooting at his partner and a man she was with at the bar where she worked as a waitress. He was taken to have departed from his employment and was on a personal vendetta. Similarly, in Brown v Robinson 145 when a security guard shot a man trying to get into a football match in Kingston, Jamaica, and the victim had his hands up at the time, it was found to be acting so far outside any authorised mode of carrying out work such that the employer was not liable. Contrast Bernard v Attorney General of Jamaica 146 where the victim was shot by a policeman when he refused the policeman access to a telephone. The shot in the head at point blank range came after a scuffle and when hospitalised, the policeman went to arrest him for assaulting a police officer. Whilst clearly not carrying out his duties in a proper fashion, this was held to be in the course of employment. These three cases clearly show that a close reading of the facts is required, along with the law.
A recent Court of Appeal case also found significant violence still to be 'in the course of employment'. In Bellman v Northampton Recruitment Ltd, 147 a managing director left a member of staff severely brain damaged after an assault at an office Christmas party. Due to the nature of the event, the discussions taking place at the time, and the conduct of the MD in asserting his role at the event, there was found to be an adequate connection between the event and the employment.

c. Motive
Lord Reed found that the motive is relevant when it is clear that the activity in question is solely for personal reasons.

The Decision
Morrisons were held not to be liable for the significant data breaches carried out wilfully by a disgruntled employee, overturning the preceding hearings in the High Court and Court of Appeal.
(There was an additional question as to whether breaches of data protection legislation were expressly excluded from vicarious actions. It was found that they were not.)

EMPLOYMENT LAW DEVELOPMENTS AND 'WORKERS'
noted relatively recently that, respectively, the law 'is on the move' 150 and has 'not yet come to a stop', 151 still there is a brake. Usefully, in the light of s230(3) Employment Rights Act 1996 and a number of recent employment law cases 152 where there might have been a temptation to sweep up a whole category of perpetrators 153 (rather than operating on a case by case basis), Lady Hale indicated in Barclays that the idea of a 'worker' (i.e. someone other than an employee but with some although, of course, not all, employment rights) being embraced wholesale into a sense of being able to ascribe vicarious liability for the wrongs of a whole range of non-employees, would be 'going too far down the road to tidiness'. 154 And it would, to pick up Atiyah's thinking, be evidence of extending the law to help the individual claimant in front of the court, rather than a coherent development of principle. 155

PRACTICAL APPLICATION
Clearly with employees, the position is guarded against with insurance and good recruitment and management practices to help avoid (as far as is humanly possible!) the worst of behaviours amongst one's staff. Of more concern is whether there could be liability for sub-contractors or others not employed. The cases would indicate that only where there is an unusually close relationship would this be held. Clearly councils and foster carers, church bodies and priests and the like may be of little concern in business life, equestrian or otherwise. But, whilst Lady Hale was at pains to stress that employment law is not to be taken as having swept up the law of vicarious liability, where there are non-employees classed as workers, or what the court might consider to be employees erroneously classified as self-employed, then there might be scope for liability. And it is in those situations where insurance may be found to be lacking. Perhaps ironically, although the law has 'NOT MY EMPLOYEE, NOT MY LIABILITY': A REVIEW OF THE LAW OF VICARIOUS LIABILITY, ITS APRIL 2020 SUPREME COURT AIRING developed, in part, to ensure victim recompense due to employer's deeper pockets and insurance, a lack of insurance is, of course, no defence at all. 156 Whether in this context or other matters such as taxation or health and safety, there is a very considerable financial risk in calling people self-employed if that is not genuinely the case. It will, however, continue to be rare where a relationship 'akin' to employment is found.

IMPLICATIONS OF THE RECENT DECISIONS
So we are left with a foundation perhaps little fundamentally changed in two centuries and more. Per Lady Hale in Woodland: The common law is a dynamic instrument. It develops and adapts to meet new situations as they arise. Therein lies its strength. But therein also lies a danger, the danger of unbridled and unprincipled growth to match what the court perceives to be the merits of the particular case. 157 And Barclays and Morrison add to a growing body of case law which has extended application of the law by increments into wider spheres to allow us to determine whether a defendant can be held vicariously responsible for someone other than an employee and whether a wrongdoer is acting in the course of employment. This, hopefully, allows the law to develop, drawing on Lady Hale's expression of the operation of the common law, to meet new situations, but not in an unbridled and unprincipled way.
In three final observations: Firstly, the recent Supreme Court cases might give some comfort to employers, in the courts being willing to explore the facts thoughtfully rather than to glibly throw the blanket of vicarious liability over a situation due to perceived policydriven benefits of ascribing liability to the more able payer.
On the relationship between the parties, Barclays shows that the courts have certainly not reached a fluid and unprincipled extension of the law to cover non-employees and that there must be a doctrinal basis for such a conclusion. Is the law narrower than before? Would cases such as Christian Brothers or Armes be decided differently now? Unlikely, in that those cases showed a clear and close relationships between the parties, along with vulnerable victims, albeit not 156 Although for a consideration of how insurance might influence the outcome of cases in practice, and a model for the future see Gerhard Wagner, Tort Law and Liability Insurance (Springer 2009). 157 Woodland (n 87) [28]. employment. In Barclays there was an ad hoc and arms-length relationship with the doctor clearly not critically integral to the business of the bank.
On the nature of the wrong, Morrison is, perhaps, no more than an application of the long-established law regarding an employee being on a frolic of his own. But the Court of Appeal and High Court judgments highlight the scope for finding in the alternative.
Secondly, although in Barclays and Morrison neither defendant was found liable, care must, of course, be taken to ensure that all persons engaged in business are appropriately classified and directed, supervised and insured accordingly. It is false economy to attempt to avoid employment obligations through artificial labels not reflecting reality.
Finally, the considerable number of 21st century Supreme Court cases (particularly, but not exclusively, WM Morrison and Barclays) pay for a careful reading of their bases of decisions making and, often, their rejection of the reasonings of lower courts.