Majrowski (Respondent) v. Guy's and St. Thomas' NHS Trust (Appellants)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Majrowski (Respondent) v. Guy's and St Thomas' NHS Trust (Appellants)
 UKHL 34
LORD NICHOLLS OF BIRKENHEAD
Vicarious liability and statutory obligations
In the following year Lord Guthrie, sitting in the Court of Session, followed this observation when deciding the shot-firing case of Nicol v National Coal Board (1952) 102 LJ 357. In the further shot-firing case of National Coal Board v England  AC 403, 422, Lord Oaksey expressed approval of Lord Guthrie's decision:
In Canada Craig JA expressed a similar view in the British Columbia Court of Appeal in Re Nelson and Byron Price & Associates Ltd (1981) 122 DLR (3d) 340, 347. So did Professor Atiyah in his well-known book Vicarious Liability in the Law of Torts (1967), at pages 280-284. Like opinions are expressed in Fleming, Law of Torts, 9th ed, (1998), page 567, and Clerk and Lindsell on Torts, 18th ed, (2000), para 5-47, and see also 19th edition (2006) para 6-51.
The 1997 Act
Certain courses of conduct are excepted: where the course was pursued for the purpose of preventing or detecting crime, or was pursued under any enactment or rule of law, or where in the circumstances it was reasonable to pursue the course of conduct: section 1(3). Harassment is not defined in the Act, but it includes causing anxiety or distress. A course of conduct means conduct on at least two occasions: section 7(2), (3). Harassment may be of more than one person.
Subsequent provisions in the section make plain that the court may grant an injunction for the purpose of restraining a defendant from pursuing any conduct which amounts to harassment. Breach, without reasonable excuse, of such an injunction is itself a criminal offence: subsection (6).
Vicarious liability and harassment
The overlap with the EC discrimination legislation
LORD HOPE OF CRAIGHEAD
Section 18B of the 1973 Act: the statutory context
The new section 18B which section 10(1) of the 1997 Act inserts into Part II of the 1973 Act for actions of harassment adopts, with modifications, the same formula in subsection (2)(b). It provides for it in these terms:
Does this formula contemplate vicarious liability?
A provision to the same general effect was included, "for the removal of doubts", in section 159 of the Mines and Quarries Act 1954.
Although Lord MacDermott was alone in expressing that view, Lord Guthrie adopted and applied the same reasoning in another case where it was contended that the owner of the mine was liable vicariously for a shot-firer's breach of the regulations. In Nicol v National Coal Board (1952) 102 LJ 357 he held that the fireman in doing his work as a shot-firer was acting in the course of his employment by the defenders and that the firing of the shots was the work which he was employed by the defenders to do:
This supports Lord Nicholls' conclusion, with which I agree, that employers are vicariously liable for wrongs having a statutory source unless the statutory provision expressly or impliedly excludes such liability: see para 15 of his speech.
Secondary, not vicarious, liability?
The 1997 Act in practice
BARONESS HALE OF RICHMOND
LORD BROWN OF EATON-UNDER-HEYWOOD