The horrific cases of widespread institutional sexual abuse of young children have shocked the nation in recent years. Their appalling nature rekindles questions as to who should be liable, especially in cases where the abusers have died. One potential avenue for redress is the doctrine of vicarious liability. It is a mechanism where an employer is made liable for an employee’s wrongdoing despite not having committed the fault itself. The doctrine has expanded to novel situations and continues to grow. Given that vicarious liability inherently undermines the notion of fault-based liability – where the wrongdoer (instead) is personally liable – it requires strong justification.
This paper explores the policy justifications that underpin the imposition of vicarious liability. It examines how the doctrine has incrementally developed with these policy justifications and what the development means for the fundamental basis of vicarious liability. It argues that the doctrine has continually shifted from one justification to the next, with the result that whilst it applies to new situations, its expansion means that it has lost sight of its recommended justification. This paper expands upon this by comparing the UK’s development of the doctrine to other common law jurisdictions, including Canada and Australia, both of which influenced the UK’s development of vicarious liability. In recent years, however, they have taken different paths. Observations are discussed as to what these approaches may mean for the future of vicarious liability in the UK.
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