Vicarious Liability in the Common Law World, by Paula Giliker

Vicarious liability, that is strict liability imposed on one party for the torts of another, remains controversial.  If the role of tort law is to make one party accountable to another for his or her wrongful and harmful behaviour, why should one party (usually an employer) be held strictly liable for the torts of another (usually an employee) taking place in the course of their employment?  It is a question that has troubled the highest courts of common law countries, giving rise to a series of not necessarily consistent judgments. 

An international workshop on ‘Vicarious Liability in the Common Law World’ took place online on 15 April 2021 (supported by the Society of Legal Scholars and the University of Bristol School of Law) and is part of a comparative project to bring together leading scholars from across the common law world to answer the following questions:

  • What is the current law on vicarious liability in tort in leading common law jurisdictions such as England and Wales, Australia, New Zealand, Canada, Ireland, Singapore and Hong Kong?
  • To what extent do common law jurisdictions cross-reference case-law authority from other common law jurisdictions?  Is there a “common” position? What role does cross-citation play in terms of legal development?
  • To what degree have policy factors such as enterprise risk reasoning, corrective justice and/or social justice influenced the current position? Is such reasoning explicit or implicit?
  • What particular factors influence the current position?  Here contributors were asked to consider two levels of influences:
    • Global factors such as revelations of institutional child sexual abuse and changing patterns of employment; and
    • Local factors such as insurance provision; statutory compensation schemes; political environment and national scandals.

The aim, therefore, of the workshop was to provide an insight into vicarious liability across the common law world, tracking recent developments in case-law and academic commentary.

Session One: New Zealand, Singapore and Hong Kong

The first session commenced with New Zealand and a fascinating paper delivered by leading NZ tort law scholar, Professor Stephen Todd (University of Canterbury). Todd’s paper raised the obvious question: did the no-fault NZ Accident Compensation Scheme (https://www.acc.co.nz/), which provides for compensation for personal injuries due to accidents (interpreted broadly), leave any room for vicarious liability at all? (The Scheme acts as a bar against tort claims for matters within its remit). Claims do exist outside the Scheme e.g. for mental harm and exemplary damages, but Todd noted that as a small jurisdiction with a very limited number of common law claims, overseas influences have had a particular significance. This raised a perfect storm, however, of limited domestic authority and conflicting decisions overseas, rendering the current state of New Zealand law uncertain. While Todd presented a convincing rationalisation of conflicting legal principles, the fact remains that, at present, limited case-law renders such analysis speculative. 

Professor Rick Glofcheski (HKU) noted the continuing influence of UK cases on Hong Kong law post-1997, which have encouraged plaintiffs to challenge the scope of vicarious liability in the HK courts, notably after the HK Court of Final Appeal decision in Ming An v Ritz Carlton in 2002. This has caused difficulties, for example in relation to fraud where UK law remains uncertain. Nevertheless Hong Kong, for a small jurisdiction, does possess a body of case-law on vicarious liability, although its subject-matter, primary based on employees injured in the workplace by independent contractors, differs in substance from that found in the UK.

Professor David Tan (NUS) noted in his paper that over the last decade, the Court of Appeal of Singapore had gravitated towards an overarching rationale of “enterprise risk” when imposing vicarious liability for intentional torts and had recognised the increasing diversity of contemporary work arrangements beyond the traditional employment contract. While case-law has been limited (only 2 cases since 2010), the influence of English and Canadian case-law is apparent. Examining Singaporean case-law, Tan argued that a “risk internalisation” framework would better orientate courts to consider the factual circumstances at different stages of the vicarious liability test in a principled and consistent fashion.

Session Two: England and Wales, Ireland, Australia, Canada (with reflections from Scotland)

The second session focussed on jurisdictions in Europe and North America (the US was not included due to its distinct approach and limited cross-citation in other common law jurisdictions). It started with a paper from myself (Professor Paula Giliker) on developments in England and Wales, noting the volume of case-law (7 decisions of the UK Supreme Court on this topic since 2010) without clear resolution of the scope of vicarious liability and the related concept of non-delegable duties. In focusing on two recent Supreme Court decisions in April 2020 and their application in the lower courts, Giliker highlighted ongoing uncertainty in the law. She also commented on the influence of cross-citation from other jurisdictions, notably from Canada and Singapore, although it was not always positive (Australia). She questioned, however, how such comparators were used: were they being used to hone the substantive reasoning of the courts or rather as a convenient justification for expanding liability in response to broader social concerns?

Dr Christine Beuermann (Newcastle University) examined Australian vicarious liability and contrasted the current legal position with that of England and Wales. The Australian approach is distinctive in a number of ways. First, while in Canada and the UK, vicarious liability has been influenced by the need to provide compensation for victims of child sexual abuse, a number of statutory measures have been introduced across the Australian Commonwealth to make it easier for victims to claim. A national redress scheme has also been established, which releases institutions covered by the Scheme from common law liability. Secondly, despite citing UK and Canadian law, the High Court of Australia has developed its own test for vicarious liability in tort which expressly rejects resort to general principle or policy. Following the leading case of Prince Alfred College v ADC (2016), Australian courts have focussed on the specific features of the parties’ relationship, in particular any special role that the employer has assigned to the employee and the position in which the employee is placed vis-à-vis the victim. Beuermann argued that Australia is still constructing an adequate legal framework.

In providing an Irish perspective, Dr Desmond Ryan (TCD) highlighted the difficulties of a small jurisdiction with limited case-law. Delays in litigation, particularly prior to the introduction of a Court of Appeal in civil cases in 2014, have added to the paucity of authority, in addition to the impact of a controversial decision in 1975 (widely criticised by commentators including the former Lord Chief Justice of Ireland) which remains binding. Dr Ryan identified instability in the law arising from decisions that lacked unanimity making it difficult to state with certainty the current legal position. While English, Canadian and Australian law is cited in the Irish courts, it is unclear to what extent its reasoning is accepted by the courts. The approach seems to be one of cautious, incremental development, to be clarified by case-law, as and when it is heard.

Professor Jason Neyers (UWO) reflected on the highly influential 1999 Supreme Court of Canada cases of Bazley v Curry and Jacobi v GriffithsBazley, in particular, continues to be cited across the Commonwealth. Subsequent Canadian case-law has expanded liability in favour of third-party victims, but this was followed by a retrenchment to ensure that any “revolution’” did not get out of hand. This means that, at times, Canadian law will be more restrictive than other systems influenced by its case-law, for example in relation to the vicarious liability of local authorities for abuse by foster parents. Despite abundant case-law, Neyers ably highlighted weaknesses in the dominant enterprise risk and deterrence justifications for vicarious liability in Canadian law and argued in favour of a new approach based on a theory of representation, that is, liability should arise for the wrongs of my representative when the wrong committed is characteristic of the activities I have asked him or her to do.

The second session ended with reflections from two Scots lawyers based at the University of Glasgow: Dr Mat Campbell and Dr Bobby Lindsay. This paper again highlighted the difficulties of a smaller jurisdiction with only two cases in the last 15 years. While Scotland is a mixed jurisdiction, the law of England and Wales has been influential and other mixed systems (e.g. South Africa) have proved less useful due to their distinctive legal approach.  Campbell and Lindsay argued that Scotland would benefit from an attempt to “restate” its law, to give clarity to both litigants and professional and academic lawyers.

Conclusions

The two sessions were attended by over 100 attendees, enabling engagement across the common law world and a dynamic discussion of the law.  Papers will now be refined for publication in an edited collection, Vicarious Liability in the Common Law World, to be published by Hart Publishing in 2022. 

Posted by Professor Paula Giliker (University of Bristol, UK)

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