Vicarious Liability in the UK and Australia - Diverging or Converging?

Graw, Stephen (2022) Vicarious Liability in the UK and Australia - Diverging or Converging? In: [Presented at the Society of Legal Scholars 113th Annual Conference]. From: Society of Legal Scholars 113th Annual Conference 2022, 6-7 September 2022, London, UK.

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It has long been accepted that vicarious liability, as a principle of ‘strict liability’, should be kept, as Lord Steyn said in Bernard v A-G for Jamaica, ‘within clear limits’. Traditionally, that has restricted its application to employer-employee relationships where the wrong was committed ‘in the course of employment’.

The basic principles have been extended over time though – with Lord Phillips listing the more important in Various Claimants v Catholic Child Welfare Society. They were, however, significantly expanded in, and following, E v English Province of Our Lady of Charity in 2013, prompting Lord Phillips to note shortly thereafter that ‘the law of vicarious liability is on the move’. In particular, relationships that were ‘akin to employment’ were encompassed and the ‘course of employment’ test morphed into a ‘sufficient connection’ test – expansions that, arguably, hit their highpoint in Armes v Nottinghamshire County Council and Mohamud v Wm Morrison Supermarkets plc. In Various Claimants v Barclays Bank plc (primarily concerning the first stage test) and Various Claimants v Wm Morrison Supermarkets plc (primarily concerning the second) however, the Supreme Court adopted a more restrictive approach which, as Stuart-Smith LJ suggested in Blackpool Football Club Ltd v DSN, appeared to follow ‘widely expressed concerns, both by academic commentators and the High Court of Australia about the potential for unprincipled expansion of the doctrine of vicarious liability in the light of Mohamud’s case and Armes’.

Certainly, the Australian High Court had adopted a far more conservative approach which, although not entirely reflecting the ‘traditional’ view, was much closer to it. This paper examines the differing approaches to determine whether the doctrine now applied in the two jurisdictions remains divergent or whether it is returning more closely to where it was before E’s case.

Item ID: 77830
Item Type: Conference Item (Presentation)
Keywords: Vicarious liability; comparative law; Australia; United Kingdom.
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Copyright Information: © Stephen Graw
Date Deposited: 07 Mar 2023 01:21
FoR Codes: 48 LAW AND LEGAL STUDIES > 4806 Private law and civil obligations > 480605 Tort law @ 50%
48 LAW AND LEGAL STUDIES > 4803 International and comparative law > 480302 Comparative law @ 50%
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23 LAW, POLITICS AND COMMUNITY SERVICES > 2304 Justice and the law > 230405 Law reform @ 50%
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