Vicarious liability remains at the forefront of debate in the law of tort. Even if we put to one side the question why a doctrine placing strict liability on an innocent party for the torts of another has pride of place in a system based on the commission of civil wrongs and the arguments of corrective justice theorists that it is fundamentally flawed if conceived as a form of secondary liability, it is still difficult to justify the extraordinary breadth of vicarious liability as applied by the UK Supreme Court in recent years. In Armes v Nottinghamshire CC [2017] UKSC 60, [2018] A.C. 355, for example, the Supreme Court accepted that local authorities could be held vicariously liable for the torts of foster carers abusing the children entrusted into their care. The UK Supreme Court is soon to rule on two further claims where a bank has been found vicariously liable for the sexual misconduct of the independent GP it asked to conduct health checks on its employees (Barclays Bank plc. v Various Claimants [2018] EWCA Civ 1670) and where a firm was found vicariously liable for the actions of a disgruntled employee who sought to get revenge on his employer by placing sensitive employee information on the internet from his home computer (Morrison Supermarkets plc. v Various Claimants [2018] EWCA Civ 2339). To use the much-cited statement of Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 A.C. 1, at [19], vicarious liability continues to be “on the move”. In contrast, the Australian courts have looked with some concern at the direction of English law and chosen a more restrictive approach, as seen in the High Court of Australia decision in Prince Alfred College v ADC [2016] HCA 37, (2016) 258 C.L.R. 134, at [81].

And yet the Australian courts have led the way with a new conceptualisation of non-delegable duties based on assumption of responsibility (see e.g. Kondis v State Transport Authority [1984] HCA 61, (1984) 154 C.L.R. 672; Commonwealth v Introvigne [1982] HCA 40, (1982) 150 C.L.R. 258). This path was followed by the UK Supreme Court in Woodland v Essex CC [2013] UKSC 66, [2014] 1 A.C. 537. Non-delegable duties – where primary liability is placed on the defendant to ensure that reasonable care is taken by another – have long attracted criticism for being a “disguised form of vicarious liability” (J.G. Fleming, The Law of Torts, 9th ed. (Sydney 1998), 434) and were memorably savaged by Glanville Williams in the 1950s. Their rationale has long confused lawyers (even Lord Sumption in Woodland struggled to find one overall rationale) in that they overlap functionally with vicarious liability. Both doctrines operate to render a defendant liable for the torts of others and yet one is based on primary liability, the other on secondary liability. It is not surprising that this “distinction” has troubled generations of law students.

It is of great interest then to find a new addition to Hart's excellent Studies in Private Law series which seeks to review the current law from an Anglo-Australian perspective and address the confusing relationship between vicarious liability and non-delegable duties. Beuermann's criticism is forthright: “The framework within which strict liability for the tort of another is currently understood is flawed. The terminology … is vague and confusing and there is no convincing explanation as to why such liability is imposed. As a result, there is very little guidance for judges when deciding cases, creating uncertainty and inconsistency in the law” (p. 13).

This book seeks therefore to abandon existing labels of “vicarious liability” and “non-delegable duty of care” and devise more appropriate terminology. In common with Anthony Gray's recent book, Vicarious Liability: Critique and Reform (Oxford 2018), Beuermann advocates radical change. While Gray shares her focus on the notion of authority, his is drawn from traditional legal doctrine in an attempt to reassert what he regards as the fundamental elements of vicarious liability. Crucially, Gray accepts that his approach is not consistent with recent law which he regards as extending the doctrine too far. Beuermann is more ambitious. She seeks no less to “explain all instance of strict liability for the tort of others” by focusing on various relationships in which liability arises. Authority is again her key concept, but in a far broader sense to that utilised by Gray. Authority here is the feature that unites the different relationships giving rise to liability, namely: employment, school and agency. In all of these, the defendant is either vested with authority over the person who committed the tort, or, a further stretch, has vested or conferred upon the tortfeasor a form of authority, be it to direct others or to effect legal relations on behalf of the defendant. While the former looks like vicarious liability as we know it, the second seeks to cover non-delegable duties and matters of agency. Authority is thus used in a number of different senses, but in all cases indicates a hierarchical relationship. It also supplies the justification for liability. For conferred authority strict liability, it is the potential of the delegee or agent to abuse the power conferred on her to direct the conduct of an employee or student, or to effect legal relations on behalf of the principal which explains why the defendant should be held liable: “it is the potential for the person upon whom authority has been conferred to abuse the power relationship … that attracts the concern and the intervention of the law” (p. 14). In contrast, for employee strict liability, it is the potential of the employer to abuse its authority to direct the employee's conduct that attracts intervention. Abuse of power therefore lies at the core of Beuermann's reconceptualisation of strict liability.

This is indeed ingenious, and part of the enjoyment of this book is to see how Beuermann manages to reconfigure existing law into her new formulation of liability. The school relationship is a good example of this. It is not immediately obvious why the school – and not hospital, prison, children's home, foster home (Armes is dealt with briefly at pp. 23–24 and 100–03) – is selected as the second category of relationship. And are not teachers usually employees fitting under the employment relationship? However, Beuermann must tackle the fact that the Australian and UK courts have declared that schools also owe a non-delegable duty to pupils injured by non-employees: Commonwealth of Australia v Introvigne and Woodland v Essex CC. If her explanation is to cover these cases, then we need to think more carefully how authority works here. Beuermann makes her case as follows: “the authority vested in a school is exercised primarily for the benefit of the students … [but] there is still the potential for the authority present in the school relationship to be abused when that authority is conferred by a school upon another person” (pp. 72–73). When, then, the school confers its authority to direct the students on a teacher (employee) or “other educator” (independent contractor?), they are given the power of authority over the pupils which may be subject to abuse. There are a number of issues here. First, Woodland and Introvigne both indicate that schools are not an isolated example. Beuermann addresses this to a certain extent in chs. 2 and 4. Hospitals as a category are rejected due to lack of clear authority (p. 45), and she later acknowledges the possibility of other relationships arising provided they can be characterised as conferred authority situations (pp. 93–103). There is a clear danger, therefore, that future activism by the courts may require her to extend this category (the Armes problem outlined above). Second, the classification is somewhat complex. The relationships will overlap – a school may hire employees, independent contractors and even use agents. Ditto any other employer. This is not, however, regarded as a problem (see ch. 7). What this means is that we will have different authoritative structures within the three relationships. It is fundamental to Beuermann's argument, for example, to distinguish between what she calls “employee strict liability”, which will be limited to torts committed while acting in accordance with the employer's actual directions (express or implied) immediately prior to the tort occurring, from “conferred authority strict liability” situations where the liability of the employer will be determined by reference to the terms of the apparent authority placed on the employee and whether the tort took place in exercising that said conferred authority. Thus, in relation to the child sexual abuse cases, liability arises because the employees in question were acting within the apparent authority conferred on them by the school or analogous institution (pp. 88, 117, 156) and not because they are employees.

This is an undoubtedly original and inventive reframing of the law as we know it. Beuermann is indeed brave in asserting a new expositive framework when the law in this field is far from settled and it is unclear how far the UK Supreme Court will move to broadening vicarious liability in a way that may largely incorporate independent contractors and thereby remove the need for non-delegable duties at all. While the argument is of necessity rather intricate and perhaps explained too concisely in the Introduction, this is an excellent example of doctrinal scholarship at its most assertive and intellectually stimulating, although even Beuermann finds it difficult to find a theory capable of approving the UK Supreme Court's reasoning in Mohamud v WM Morrison Supermarkets Plc. [2016] UKSC 11, [2016] A.C. 677. In a field not short of academics asserting their own justifications for liability, it is refreshing to see an approach which goes back to basics – what are we trying to do? How should we shape the law? While one might not be wholly convinced by the reformulation, whose complexity might deter those less willing to rethink the current law in such a radical way, Beuermann is right to ask for us to reconsider what we mean by “strict liability for the tort of another”. The fact that the UK's highest court has examined this issue eight times since 2001 and will be delivering two decisions in 2020 suggests ongoing uncertainty in this area of law and a need to debate the scope and justifications of both vicarious liability and non-delegable duties. It is to be hoped that Beuermann's provocative text will provide food for thought.