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Future legal historians are unlikely to disagree on the area of Commonwealth tort law which underwent the most radical transformation in the early years of the twenty-first century. After having lain largely dormant throughout the previous century, in the last two decades the doctrine of vicarious liability has been subject to far-reaching changes across much of the common law world, which surpass in their extent other recent developments in the law of tort. And those historians will find no better guide to these changes than this timely and illuminating collection of essays, expertly curated by Paula Giliker.

The core of this collection consists of essays on recent developments in vicarious liability in Australia, Canada, England and Wales, Ireland, New Zealand, Hong Kong, Scotland (as a mixed legal system, an exception to the common law focus), and Singapore. These essays are bookended by two substantial chapters by the editor, in which she first introduces the issues and methodology and later draws some comparative conclusions and considers the insights to be gained from cross-jurisdictional analysis. As so often is the case, it is the editor’s own contribution that makes this collection of essays more than just the sum of its parts, and Giliker deserves credit not just for conceiving of such an innovative project, but for bringing it to fruition with such aplomb.

In addition to outlining the current state of vicarious liability in their jurisdiction (and placing this in a broader social and theoretical context), the contributors were asked to comment on the extent to which the courts had considered developments elsewhere. The result is a book which is not only brimful with insights into vicarious liability, but which also highlights the interdependence of Commonwealth legal systems––at least when it comes to the law of tort.

Vicarious liability boils down to two broad questions: was the relationship between the tortfeasor and the defendant one capable of giving rise to such liability (stage 1); and was there a close enough link between the tortious conduct and that relationship for such liability to arise on the facts (stage 2). As the essays in the book demonstrate, in Commonwealth legal systems both stages of the analysis have been the subject of significant change since the turn of the century.

At stage 1, the courts in almost all the jurisdictions surveyed (except Australia and Hong Kong) have added a new category of relationships “akin to employment” to the list of established relationships. This development coincided with the recognition of “joint” vicarious liability, whereby two entities––such as a permanent and a temporary “employer”–could be held vicariously liable for the same tort.

And at stage 2, all the jurisdictions surveyed have abandoned Sir John Salmond’s famous two-part test, whereby an employee’s act was “in the course of employment” if it was “(a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master.” J.W. Salmond, The Law of Torts 83 (1907). For the most part––Australia again excepted––Salmond’s formula has been replaced with a test focused on the closeness of the connection between the tortious conduct and either the stage 1 relationship or the tasks assigned to the tortfeasor pursuant to that relationship.

The primary driver of change at both stages has been the courts’ desire to give meaningful redress to the victims of child sexual abuse in institutional settings. At stage 1, the “akin to employment” category meant that religious institutions could be held liable for abuse by priests and members of religious orders whose work was not carried out under a contract of employment. And at stage 2, vicarious liability for child abuse required abandonment of the Salmond test, since such abuse could not plausibly be described as “an unauthorised mode of doing some act authorised by the [employer]” (such as the act of caring for the child in question).

It is unusual for developments in wider society (in this case, the scandal of widespread child sexual abuse in institutional settings) to have such an immediate and discernible impact on the development of tort law doctrine, and this would seem to explain the high level of cross-citation between legal systems reported in the book. As courts in different jurisdictions scrambled to develop the law to provide redress in recurrent factual scenarios, they naturally looked to each other for guidance. The most important source of such guidance was Canada, partly (one suspects) because abuse cases were litigated there first, but also because of the quality of the Canadian judicial response. After moving across the Atlantic to the UK, the conceptual framework first developed in Canada subsequently radiated around the globe, meeting lasting resistance only in Australia, although even there (as Christine Beuermann shows in her chapter in the book) the outcomes of the cases have often been similar to those arrived at elsewhere.

The basic outline of this narrative will be familiar to most Commonwealth tort lawyers. But as the first attempt to lay out the recent history of vicarious liability across a range of common law jurisdictions, this book provides tort scholars and practitioners with a veritable treasure trove of examples and plenty of food for thought besides. Among many points that struck me after reading it, I highlight just four.

First, in all the jurisdictions surveyed, the focus of vicarious liability litigation has shifted decisively from negligence to the intentional torts––not only abuse cases, but also cases of physical violence, often involving co-workers. As Stephen Todd points out in his chapter on New Zealand, this has left one issue largely unresolved, which is the significance of the recent developments at stage 2 in the negligence context.

Second, although there is much talk in the literature on vicarious liability (including this collection) of the impact of changing patterns of employment amid casualization and the rise of the “gig economy,” the case law surveyed in the book suggests that these developments in the world of work have thus far had precious little effect on the law. On the contrary, far from breaking down the boundary between employees and independent contractors, the courts have generally upheld the traditional refusal to attach vicarious liability to the torts of contractors, as well as continuing to apply the traditional criteria for distinguishing such contractors from employees.

Third, the theoretical underpinnings of vicarious liability are still unstable. True, Commonwealth courts have tended to justify the recent expansion of the doctrine by reference to theories of “enterprise liability” or “enterprise risk,” but the impression one gets from reading the book is that this is largely lip service, with such theories little more than a loose-fitting cloak with which to conceal the judicial intuitions that actually ground legal outcomes. There is certainly not much evidence here of meaningful judicial engagement with the theoretical literature, nor of the use by judges of theoretical frameworks as analytical tools for distinguishing between different factual scenarios. (Canada may be an exception in this respect, as may Singapore, where, David Tan’s chapter suggests, notions of “enterprise risk” have genuinely driven recent judicial analysis.)

And finally, despite the rapid expansion of vicarious liability, courts across the Commonwealth have sought to preserve some continuities with the old law, not only holding the line on independent contractors, but also emphasizing the importance of developing the law by analogy with existing precedents. Maintaining this balance between novelty and orthodoxy has not always been easy, however, as the chapters in the book make clear.

What I liked most about the book, though, were the insights it offers into the inter-relationship between Commonwealth legal systems in the modern era. The traditional dominance of English law (as epitomized by the now largely defunct practice of appeals from Commonwealth jurisdictions to the Privy Council in London) has given way to a non-hierarchical interplay which Giliker labels a “cross-jurisdictional dialogue.” (P. 238.)

In this new age, the degree of persuasive authority that a decision carries in another jurisdiction is determined not by the identity of the court that handed it down but by the quality of its reasoning. Hence, for example, while the UK courts continue to exert considerable influence in Hong Kong and Singapore, the direction of influence can also reverse, as when the UK Supreme Court recently drew upon a decision of the Singapore Court of Appeal when deciding not to extend vicarious liability to independent contractors.

Furthermore, while these processes of influence can be obvious––witness key UK decisions following Canadian leads––they can also be so subtle as to be virtually undetectable. Was the recent retrenchment in the UK law of vicarious liability, for example, partly attributable to the skeptical response of the High Court of Australia to earlier, more expansive, UK decisions? Giliker suggests so (Pp. 235–36), but in the absence of citation of the relevant Australian case law by the UK judges, we cannot be sure.

The decision to focus on the operation of these processes of influence in the vicarious liability context led to the exclusion from the survey of South Africa and the United States, two legal systems where there has been little cross-citation in this context with the jurisdictions discussed in the book. For the student of vicarious liability, that is somewhat unfortunate, but the logic of the decision is clear, and it gives the collection a higher level of coherence than it would otherwise have. Furthermore, it is that coherence that lends the book its broader significance.

Without a doubt, this groundbreaking collection is essential reading for any Commonwealth tort scholar––or for any scholar from elsewhere interested in recent developments in vicarious liability in the Commonwealth. But the book also heralds the dawn of a new form of multi-jurisdictional common law scholarship, which extends beyond the traditional focus on Australia, England and Wales, and North America. And for that reason alone, it deserves a wide readership across the common law world.

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Cite as: Donal Nolan, Comparing Vicarious Liability, JOTWELL (March 20, 2023) (reviewing Vicarious Liability in the Common Law World (Paula Giliker ed., 2022)), https://torts.jotwell.com/comparing-vicarious-liability/.