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Vicarious liability extended in abuse cases

10 November 2011

The doctrine of vicarious liability establishes that an employer is liable for the acts or omissions of its employees. It was founded on a two stage test: (1) is the relationship (normally one of employment) one to which the principles will apply; and (2) whether the act or omission was within the scope of employment.

Case law has chipped away at the doctrine, ever widening the relationships that now seem to give rise to vicarious liability. Mr Justice MacDuff’s judgment in JGE yesterday was no exception. It widened the first stage further to include a situation whereby the key elements of “employment” did not figure.

Although Mr Justice MacDuff said that the doctrine is not “infinity extendable”, previous judges made the same point before adding one more little extension. Mr Justice MacDuff’s judgment was no different. So where does that leave us? Potentially analogous facts to those relevant in this case are easy to imagine; the relationship between foster carers and local authority springs to mind. Mr Justice MacDuff’s judgment by no means opens the door for such claims, but he may well be offering a key to a previously locked door.

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