UNITED KINGDOM
Lexology
March 11 2016
Cox v Ministry of Justice Mohamud v WM Morrison Supermarkets Plc Supreme Court 2 March 2016
As the opening sentence of Lord Reed’s judgment in Cox says, “vicarious liability is on the move” and the conjoined appeals of Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets Plc provided the UK Supreme Court with “an opportunity to take stock of where it has gone so far”.
Recent years have seen the courts extend the scope of the doctrine of vicarious liability and these appeals presented the UK’s highest court with an opportunity to either rein it in, or allow its further expansion and, crucially, outside the arena of child abuse claims. The growing theme in recent years has seen a loosening of the criteria such that it is easier for claimants to pursue cases against those more likely to have the financial means to pay compensation.
The Supreme Court has continued that onward trajectory deciding that the defendants in both cases were vicariously liable for the personal injuries suffered by the two claimants. Paul Donnelly and Andrew Cousins look at the development of the doctrine of vicarious liability and where these judgments take us.
Vicarious liability
Vicarious liability is the doctrine through which a person or organisation can be held strictly liable for tortious acts or omissions committed by others i.e. without a breach of any duty of care owed by, or fault on the part of, that person or organisation. The doctrine’s roots can be traced back to the Middle Ages but, as a legal principle, came to the fore in the Victorian era when the industrial society was developing. A useful explanation of the purpose of the doctrine can be taken from Ward LJ’s judgment in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012). He noted a growing acceptance that “the existence of the master/servant relationship was itself enough to impose liability on the master if the servant was acting within the scope of his employment” and quoting Lord Brougham in 1839: “The reason I am liable is this, that by employing him I set the whole thing in motion; and what he does, being done for my benefit and under my direction, I am responsible for the consequences of doing it”.
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