This Idea Is Supported By Lord Toulson Who Contends That

1325 WordsMar 10, 20176 Pages
This idea is supported by Lord Toulson who contends that a “simplification” of the doctrine is desirable due to the inherent risk of over-refining the doctrine to a point nearing no return. A serious issue with this argument, however, is that in doing this, the courts have ignored their duty to the public – “to ensure that the law is stated in clear and certain terms, so that we can all know where we stand when we get involved in disputes with other people”. This is because, as Lord Phillips notes, “the close connection test tells one nothing about the nature of the connection”. In Lister, the obvious benefit to the extension of the doctrine was that acts, such as sexual abuse, would likely fall within the scope of VL. Such a benefit is…show more content…
Surely, such a risk is inherent to all employment sectors and not just a specific business. Although Giliker contends that this risk-based liability enhances the principles of fairness and justice, due to the fact that it is more pragmatic to distribute the losses amongst members of the community, it is difficult to conceive how fairness is being upheld as “it is one thing to say that the enterprise should be responsible for the risks it has created; it is quite another to say that it remains responsible when the existence of the risk is entirely coincidental”. Furthermore, a distribution of losses based on an employer’s ability to compensate the victim due to insurance cover, or through loss spreading by means of increased consumer prices, should not be sufficient reasoning to inspire courts to expand the doctrine. The courts ought not to treat this social policy justification as a safety net, which allows them to sit on the fence whilst providing justice to the victim, assuming the employer will not see noticeable losses. The Introduction of Causal Elements Although the courts asserted that the CCT was not being amended, it appears that the Courts adopted a modified version of the test. Under Lister, the fact that the employment provided a mere opportunity to commit a tort was insufficient to justify the imposition of VL as this would “be seen to provide the causation of an employee’s tort”, thereby turning
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