Monday, February 22, 2021
Donal Nolan has posted to SSRN Reining in Vicarious Liability. The abstract provides:
The English law of vicarious liability has changed dramatically over the course of the last 20 years. The overall effect of this transformation has been a significant expansion in the scope of the doctrine, accompanied by high levels of uncertainty, as reflected in the frequency with which appeals on the subject have been heard by the Supreme Court in recent years. The two most recent of those appeals, Barclays Bank v Various Claimants and WM Morrison Supermarkets plc v Various Claimants, are the subject of this commentary. In these two decisions, the Supreme Court has attempted to impose some order on the chaos, and to replace the old structures of vicarious liability with a new framework offering comparable levels of certainty and predictability. This ‘modified orthodox’ approach preserves some continuity with the old law, and is also characterised by the abandonment or downgrading of open-ended tests and multi-factorial analysis in favour of more structured and tightly drawn enquiries, as well as a strong attachment to precedent. With these two decisions, it seems that the limits on the expansion of vicarious liability are now coming into clearer focus.