Alliteration aside, could community pharmacies be held liable when enlisting help in a post COVID-19 world?
Vicarious liability is the attribution of strict liability to (usually) an employer for the actions of their employees. Liability is “strict” in this sense because there is no allegation of actual wrongdoing on the part of the employer. It is thought to be a fairer system of distributing loss because liability for tortious (or civil) wrongdoing is borne by a defendant with the means to compensate the victim. It also incentivises employers to be strict in the enforcement of good working practices amongst their employees.
On 27 March 2020, the National Health Service (Amendments Relating to the Provision of Primacy Care Services During a pandemic etc.) Regulations 2020 came into effect. This provided that patients who meet the “shielding” criteria (more at risk from Covid-19 (coronavirus)) must be offered a home-delivery option for their prescription medication. The measure is to ensure that vulnerable members of the public are not forced to visit pharmacies or a dispensing doctor.
As part of this scheme, an “advanced service” is being commissioned which allows pharmacies to deliver prescriptions themselves and claim a per-delivery fee from NHS England. Crucially, however, this is only an option where no family member or volunteer is available to deliver the medication. Given that over 750,000 new volunteers have joined the NHS Volunteer Responders scheme, local pharmacies are all but forced to use volunteers to deliver to patients. With the wide scope for things to go wrong where volunteers are delivering prescription medicines to the public, many local community pharmacies are asking themselves “Will we be held liable if something goes wrong”?
The law
As a brief reminder of the law of vicarious liability, a two-stage test is applied. It was clarified in the seminal case of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11. Put very simply, a court will consider:
- Is the role of the wrongdoer capable of giving rise to vicarious liability?
- Is the wrongdoing itself close enough to that role for a finding of vicarious liability to be just and reasonable?
Both limbs must be satisfied for a finding of vicarious liability.
Test 1:
In the case of volunteers, it is the first-limb test which may have pharmacies scratching their heads. Guidance comes from the case of Cox v Ministry of Justice [2016] UKSC 10. The courts will consider:
- whether the role is sufficiently akin to employment, being essential to the function of the organisation;
- whether the organisation maintains a level of control over what the wrongdoer does (but not necessarily how they do it), and has the right to take action if the wrongdoer performs their task incorrectly;
- whether the wrongdoer is integrated into the organisation, or is acting more as a lone entrepreneur or sole-trader;
- whether it would be just and reasonable to find the organisation vicariously liable.
Test 2:
The Mohamud case concerned a violent assault of a customer by a Morrisons employee. Mr Mohamud’s family sought a new, broader, test for vicarious liability, in place of the above second test. They wanted to introduce a test of “representative capacity”. That argument was rejected by the Supreme Court and the above test was confirmed to be the proper test. However, Morrisons was found to be vicariously liable for the assault of Mr Mohamud on the basis that responding to a customer’s request (albeit in a violent manner) was within the “field of activities” authorised by the employer. The employee had been entrusted to deal with members of the public and Morrisons were found to be responsible for his abuse of trust. This is a wide interpretation of the second test above, where all that is needed for a finding of vicarious liability is a link between the wrongdoing and the field of activities authorised by the employer.
The position was clarified on 1 April 2020, in the recent Supreme Court decision WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents) [2020] UKSC 12. This case concerned a deliberate mass data breach by a disgruntled ex-employee of Morrisons. The offender was an auditor with access to the data as part of his job. Interestingly, the Mohamud case was distinguished in this case. The Supreme Court ruled that employers will not be held liable for an employee’s wrongdoing where the employee was not engaged in furthering the employer's business at the time. In particular, the ex-employee was instead deliberately seeking to harm the employer as part of a vendetta. The two-stage test above does still apply, but this decision clarifies that the wrongful act itself will be closely scrutinised, with a view to whether or not it was done to further the employer’s business (whereas, before, motive was expressly irrelevant).
Summary
In short, the authorities offer guidance, but no clear answer, on whether a volunteer’s wrongdoing may lead to a finding of vicarious liability. However, it is certainly open to the courts to make such a finding, and seems likely that they will find organisations to be vicariously liable where they are better placed to compensate the victim than the wrongdoer.
It is perhaps not unreasonable to assume that this question will be tested in the courts in the near future.
Here is a useful article, with links to the NHS guidance in light of the recent Regulations.
