In this blog, I will discuss two recent publications which address comparatively the doctrine of vicarious liability in tort and demonstrate the value of a comparative perspective in this field. Vicarious liability is a rule of responsibility which is found across the common law of tort and typically renders an employer strictly liable for the torts of its employees provided that the tort takes place in the course of employment.The idea of holding an employer liable to pay compensation to victims of its employees’ torts, regardless of the absence of personal fault, is not, however, unique to the common law. Ideas of strict liability for the torts of others may also be found in civil law systems, although in some systems it is subject to a rebuttable presumption of fault (see, generally, Giliker, Vicarious Liability in Tort (CUP, 2010) and J Spier (ed), Unification of Tort Law: Liability for Damage Caused by Others (Kluwer Law International, 2003)). In all systems, it has proven controversial with some commentators arguing that the imposition of no-fault liability on employers conflicts with notions of corrective justice and notably, in a number of systems, it has been questioned to what extent liability can be said to be founded on economic justifications based on enterprise risk and loss distribution via social or private insurance. (more…)
In January 2017, I published a blog on the decision of Judge Cotter QC in December 2016 in Bellman v Northampton Recruitment Ltd  EWHC 3104 (QB). This was a High Court decision determining whether an employer would be vicariously liable when a company’s managing director punched a fellow employee during an informal drinking session after the company’s annual Christmas party. Tort lawyers will know that vicarious liability is a rule of strict liability, by which a person (usually an employer) is held strictly liable for the torts of his employees provided that they take place “in the course of employment”. Following the House of Lords’ decision in Lister v Hesley Hall  UKHL 22, a tort is now deemed to be in the course of employment if it is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. In Bellman, the court was asked to apply the “close connection” test in the light of the Lord Toulson’s restatement of the test in Mohamud v Wm Morrison Supermarkets Plc  UKSC 11 in March 2016. In that case, Lord Toulson had stated that, in applying the test for “close connection”, the court has to consider two matters:
What are the functions or “field of activities” entrusted by the employer to the employee, or, in everyday language, what was the nature of his job?
Is there a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?
Judge Cotter QC in 2016 ruled that the violent assault had not been closely connected to the managing director’s duties for the company. On 11 October 2018, a unanimous Court of Appeal allowed Bellman’s appeal and ruled in favour of vicarious liability:  EWCA Civ 2214. This blog will consider the implications of this ruling. (more…)
The changes to personal injury law announced by the Chancellor of the Exchequer in the Autumn Spending Review have already raised considerable controversy. Claims for damages for whiplash injuries are to be abolished (along it seem with claims for all low value minor soft tissue injuries incurred in road accidents). In addition, the small claims limit for personal injury cases is to be increased from the current £1,000 to £5,000.
As a result of the latter change, a much greater number of personal injury cases will be determined in a procedure under which a winning claimant will be unable to recover any costs. The purpose of this comment is not to consider the immediate implications of these changes, but rather to ask what they tell us about how the personal injury system is likely to develop in the future. (more…)
“To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera”: Lord Dyson (Mohamud)
On 2 March 2016, the Supreme Court delivered two judgments which it described as “complementary to each other” on the controversial topic of vicarious liability in tort. Vicarious liability imposes strict liability on an employer for the wrongful actions of (usually) its employees which are committed in the course of his or her employment. Recently, however, as Lord Phillips (former President of the Supreme Court) stated in the case of Various Claimants v Catholic Child Welfare Society  UKSC 56 (“the Christian Brothers case”), “the law of vicarious liability is on the move.” Since 2001, it has been an area of law subject to expansion. The question on appeal to the Supreme Court was essentially how far this expansion would go, examining, in particular:
The relationship needed to give rise to vicarious liability. This was examined in Cox v Ministry of Justice  UKSC 10.
The manner in which the wrongful acts of the employee have to be related to the relationship giving rise to vicarious liability – in other words, were the employee’s torts so closely connected with his employment that it would be just to hold the employers liable? This was examined in Mohamud v WM Morrison Supermarkets plc  UKSC 11.
Both judgments are short and unanimous. Neither claim, however, to provide absolute tests, taking the view that a lack of precision is inevitable, given the infinite range of circumstances where the issues arise. (more…)