The Supreme Courts (SC) is looking at this principle in depth once again – despite thorough analysis in recent years in cases such as Catholic Child Welfare Society v Various Claimants (before the SC) and JGE v Portsmouth (in the Court of Appeal).
The SC has granted permission to appeal in the case of Cox v Ministry of Justice, a claim which turned on whether the defendant should be vicariously liable for the negligence of a prisoner undertaking food service duties in the prison in which he was serving his sentence. The granting of permission in Cox suggests that the Justices are quite prepared to take another look at vicarious liability in the medium term.
Last year Lord Hope, the former deputy President of the SC, delivered an extra-judicial speech on vicarious liability which concluded with the following concerns, which are worth repeating in full…
“It may be … that some further refinement [of vicarious liability] will be needed to meet demands for compensation for sexual abuse of children within the entertainment industry. The precise criteria for imposing vicarious liability in such or other cases have yet to be defined. What are to be taken to be the parameters? What, if enterprise liability is to be the governing principle, is an enterprise? How is one to determine what is, and what is not, within the range of activities for which those in charge of that enterprise can be fairly held to be vicariously responsible? What part does the risks that the activities may give rise to have to play in that assessment? One must hope that the search for clearly defined criteria, as one moves further and further away from the employer/employee relationship, is not abandoned simply in order to meet the need for a solution on a case by case basis.”
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).