A 21st Century Approach to Vicarious Liability Across the Common Law World

by Professor Paula Giliker, University of Bristol Law School

The common law doctrine of vicarious liability in tort is both controversial and on the move.  In the last 20 years, this doctrine – which holds one party (usually an employer) strictly liable for the torts of an employee that take place in the course of their employment – has given rise to significant decisions in the apex courts of common law jurisdictions across the world.  There has been an unprecedented level of cross-citation between common law jurisdictions, not only of decisions of the UK Supreme Court and the Supreme Court of Canada (Bazley v Curry [1999]; Lister v Hesley Hall Ltd [2001]; Various Claimants v Catholic Child Welfare Society (CCWS) [2012]) but also of decisions from the Supreme Court of Ireland (Hickey v McGowan [2017]), the Singapore Court of Appeal (Skandinavska Enskilda Banken AB (Publ) v Asia Pacific Breweries (Singapore) Pte Ltd [2011]; Ng Huat Seng v Mohammad [2017]), the Court of Final Appeal of Hong Kong (Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd [2002] and the New Zealand Court of Appeal (S v Attorney-General [2003]).  It is an area therefore ripe for research but one in which this newly published book takes a distinct approach, arguing that to understand vicarious liability, we need to understand both the context in which these decisions are delivered and their underlying policy reasoning.

Vicarious Liability in the Common Law World (P Giliker (ed), Hart Publishing, published 20 October 2022) offers unparalleled access to case-law, doctrinal debates and comparative reflections on vicarious liability from across the common law world.  It draws on the expertise of leading tort law scholars from Canada, England and Wales, Australia, Ireland, Hong Kong, Singapore, and New Zealand (with an extra perspective provided from Scotland: a mixed jurisdiction strongly influenced by its larger common law neighbour). These jurisdictions were chosen for their significance in shaping the debate, a practice of cross-citation from other common law jurisdictions, and the existence of ongoing discussions on the policy basis for the doctrine.  It examines not only the application and basis for the doctrine but also the broader framework in which these decisions were delivered. Given the ongoing debate of the role of theory in this area of law, notably enterprise risk reasoning, contributors were asked to address the extent to which express or implicit reference to policy has influenced the application of the law. They were also asked to consider the extent to which extra-legal factors such as sexual abuse scandals, state compensation schemes and insurance provision have affected how courts decide cases. Reflecting comparatively in the final chapter, I examine the insights we can gain from scrutinising other common law jurisdictions in this field and how (and why) as lawyers we might benefit from engaging with case-law from other common law jurisdictions.

It is difficult to summarise in a blog post the conclusions reached across ten chapters, but three key insights stand out.

The first is perhaps the least surprising for comparative lawyers.  Having a common test for vicarious liability involving (i) commission of a tort; (ii) a relationship between the tortfeasor and the person held strictly liable and (iii) a connection that links this relationship to the commission of the tort has not prevented differences in interpretation arising. This is inevitable given the different contexts in which vicarious liability arises across common law jurisdictions in the global North and South.

The second is that, despite their differences, these jurisdictions have nevertheless been united by a need to modernise the doctrine in the last 20 years. Changes in the status of workers with greater use of casual and contracted-out labour and the global scandal of institutional child sexual abuse giving rise to claims that religious organisations and residential schools should be held vicariously liable for the torts of the abusers have led to calls to revise the test.  In a gig economy, for example, where key services may be contracted out, should those injured by casual workers who akin to, but not technically, employees be able to rely on the doctrine?  Equally, most jurisdictions have questioned the narrowness of the formerly universally accepted Salmond test that an employer would only be held strictly liable if the employee’s torts amounted to either a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master.  Moving to a broader close connection test signifies that torts, including intentional torts, that are closely connected to the work entrusted to the tortfeasor will fall within the doctrine. It has proven more difficult, however, to clarify exactly how close that connection should be.  The book recounts how common law jurisdictions have responded to socio-economic change and critically appraises their responses. Equally, it engages with the impact of enterprise risk theory, originating in Canada but (after some hesitation) accepted in the UK as a means to justify expansion of the doctrine.  Enterprise risk reasoning has been met with some scepticism in Ireland, enthusiasm (as Tan highlights) in Singapore, but with outright rejection in Australia. As the UK (as Giliker relates) now seeks to confine such policy concerns to a limited category of claims, will other common law countries follow suit?

Thirdly, in identifying divergence amongst the jurisdictions and key questions that need to be resolved, the book also highlights different approaches that might assist future decision-makers.  Neyers and Kiss, for example, note that Canada, whose case-law inspired the “akin to employment” test, has nevertheless not gone as far as the UK in its case of Armes v Nottinghamshire CC [2017] in finding a local authority vicariously liable for the torts of its foster parents (see KLB v British Columbia [2003]).  Canada manages to retain a policy-led approach while keeping its application of the test within set limits. This contrasts with the UK approach in Barclays Bank plc v Various Claimants [2020] which sought to confine policy discussion to “doubtful” cases. In so doing, Baroness Hale found inspiration in the Singapore Court of Appeal’s decision in Ng Huat Seng that too generous an application of the “akin to employment” test might undermine the distinction between employees and independent contractors.   Ryan highlights that while it is well-known that Australia rejected the Anglo-Canadian close connection test in Prince Alfred College v ADC in 2016, Ireland too had its doubts, although these were finally resolved in favour of the test in 2017. Australia’s distinctive response to both the relationship and course of employment tests is critically appraised by Beuermann in her chapter. What we see therefore is an active dialogue, enhanced by consideration of parallel case-law across the common law world.  It is a dialogue from which we can learn, even if, ultimately, we choose to disagree.

Vicarious liability in tort provides an excellent example of common law judicial development, with the common law legal community engaged in an active debate as to its key constituent elements. It tests our skills as jurists in determining its scope, its theoretical basis and how best to express its test(s). No legal system in this book has found a magic solution that renders vicarious liability straightforward and easy to apply. However, it is submitted, it is these challenges that make this study exceptionally timely. At a time of uncertainty, we need to think beyond national boundaries and look for wisdom and inspiration elsewhere. Where better than looking at other common law jurisdictions with similar key case law authorities and historic ties?  A cross-jurisdictional dialogue presents us with a counterfactual world in which the consequences of change can be tested, not merely hypothetically, but in some form of grounded reality to assist in shaping and reinvigorating legal principle in domestic law.  For academics, students, researchers, judges and practitioners seeking to navigate this area of law, this research offers a way forward – providing an overview of the law in key common law jurisdictions, addressing contemporary debates and providing potential solutions.

Professor Paula Giliker FAcSS is the editor of, and contributor to, Vicarious Liability in the Common Law World (Hart Publishing, 2022): Vicarious Liability in the Common Law World: : Hart Studies in Private Law Paula Giliker Hart Publishing (bloomsbury.com). She is Professor of Comparative Law and teaches Comparative Law, Advanced Obligations and Tort Law at the University of Bristol School of Law.

Contributors: Christine Beuermann, Mat Campbell, Paula Giliker, Rick Glofcheski, Jerrod Kiss, Bobby Lindsay, Jason Neyers, Desmond Ryan, David Tan, Stephen Todd.

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