By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).
“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…)