Developing a contextual-pluralist model of vicarious liability

Brown, James ORCID: https://orcid.org/0000-0002-1506-9719 (2021) Developing a contextual-pluralist model of vicarious liability. Tort Law Review, 28 (2). pp. 123-142. ISSN 1039-3285

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Abstract

This article presents a somewhat novel way of looking at vicarious liability by developing a model that is both sensitive to context and factual nuance, and understanding of the fact that none of the purported theoretical justifications for the doctrine are entirely satisfactory on their own. It is suggested that a pluralistic balancing approach to the relevant theories could be predicated on the somewhat recent emergence of the ‘fair, just and reasonable’ test in this area of law. From a normative standpoint, this is likely to lead to a more meaningful, adaptable and transparent law on employer liability. The article also highlights that the adoption of a contextual-pluralist model may lead to a more consistent and in-depth judicial application of the various rationales for vicarious liability. In so doing, it claims that judges should adopt a so-called ‘thick approach’ to the use of theory.