The Use and Abuse of the Doctrine of Vicarious Liability

Abstract

Through an analysis of recent case law, this article seeks to highlight the flaws in the current English law approach to the doctrine of vicarious liability. Focusing on the new ‘close connection’ test for determining the ‘course of employment’ requirement, it argues that the recent expansion of employer's no-fault liability for the acts of employees has been founded upon a set of principles that are not only theoretically unsound, but also unjustifiable by reference to the normative background of the doctrine of vicarious liability. The article further argues that the judicial reasoning used in these cases indicates fundamental confusion about the nature of the distinction between direct and vicarious liability, and a particular lack of understanding about the concept of the non-delegable duty.