Are cases to be determined from the ‘bottom-up’, by reference to specific principles derived from the facts of decided cases, or from the ‘top-down’, by reference to more general principles found within the legal system? This dilemma is not unique to vicarious liability but is of particular significance given the long-standing failure of the courts to identify a convincing justification that both shapes and informs the test for determining when an employer should be held strictly liable for the wrongdoing of an employee. Consideration of the issue is also timely given the now [in]famous declaration of Lord Phillips in Various Claimants v Catholic Child Welfare Society that ‘the law of vicarious liability is on the move’. Concerned by the rate of change and the risk of misstep, the High Court of Australia expressly considered the question of whether priority should be given to the facts of decided cases or general principles when determining vicarious liability in the recent case of Prince Alfred College Inc v ADC. A majority of the High Court concluded that the starting point should be the facts of decided cases, favouring the more ‘orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise’ …
Christine Beuermann, ‘Vicarious liability: a case study in the failure of general principles?’, 2017 Professional Negligence 179.