Employer's vicarious liability: where are we now?

Arnell, Sarah

Abstract

The recent decision of the Inner House of the Court of Session in the case of Wilson v Exel UK Ltd (t/a Exel)1 has given the Scottish courts the opportunity to demonstrate how they are going to treat the approach to the application of vicarious liability of an employer for his employees’ wrongdoings. This article traces the journey that the principle of vicarious liability has taken since the early 1900s. It demonstrates how the leading House of Lords decision of Lister v Hesley Hall Ltd2 was not the first occasion when the close connection between the wrongdoing and the employment had been used to impose vicarious liability. However, the emotive nature of the wrongdoing in that case, sexual abuse, added to the significance of the renewed focus by the House of Lords on close connection and the apparent move away from the course of employment test with its ‘‘improper mode of doing authorised acts’’3 sub-test. The English courts have embraced this change of focus. This article attempts to extract from the English decisions since Lister those elements in a case that will point to a close connection such that it is fair and just to impose vicarious liability. The Scottish courts, on the other hand, would appear to be maintaining the link with the ‘‘traditional approach’’ of the course of employment with the Inner House decision of Wilson v Exel UK Ltd (t/a Exel). A difference in approach would appear to be forming.

Citation

ARNELL, S. 2010. Employer's vicarious liability: where are we now? Juridical review, 243.

• Journal Article Type: Article
• Acceptance Date: Dec 31, 2010
• Online Publication Date: Dec 31, 2010
• Publication Date: Dec 31, 2010
• Deposit Date: Oct 2, 2014
• Publicly Available Date: Oct 2, 2014
• Journal: Juridical review
• Print ISSN: 0022-6785
• Publisher: Thomson Reuters
• Peer Reviewed: Peer Reviewed
• Volume: 243
• Public URL: http://hdl.handle.net/10059/1061