The orthodox answer to this question is no, on the basis that it is the peculiarities of the facts which give rise to the outcome, rather than any new legal approach. In two decisions this week in the tort of negligence, the clinical claim Darnley in the Supreme Court and the vicarious liability claim Bellman in the Court of Appeal, the higher Courts worked from the initial findings of fact and applied the existing law to them to drive different outcomes from those reached in the courts below.
Debate on the scope of the frequently-linked issues of non-delegable duty of care and vicarious liability remains extremely active and was recently reconsidered by the High Court in a judgment handed down on 12 February 2018. Continue reading
The Supreme Court’s decisions this morning in two joined cases both restate and further refine our understanding of vicarious liability in employers’ liability and associated claims. The facts of each were reported in a blog last week and in both decisions today the claimants succeeded, unanimously in each case. The outcome is probably more surprising in the case of Mohamud than it is in the case of Cox. Even so, reading the cases together strongly suggests that the law on vicarious liability has not fundamentally changed. What the Supreme Court has done is to apply it differently than the Court of Appeal to both sets of facts. Continue reading