VICARIOUS LIABILITY FOR EQUITABLE WRONGDOING

The concept of equitable vicarious liability will be unfamiliar to many Australian lawyers. Vicarious liability is of enduring significance in the law of tort but is rarely invoked in the context of equitable wrongdoing. Yet English courts are now comfortable applying vicarious liability to equitable wrongs, and recent dicta of the High Court of Australia and the Supreme Court of New South Wales suggest that Australian law might follow suit. This article considers whether such a development should be encouraged. It argues that a doctrine of equitable vicarious liability would be both justified and principled, in that it would fill a gap in the law, without creating incompatibility with equity's existing approach to determining liability. However, it doubts the strength of the authorities that have sparked these developments, contending that the evidence of vicarious liability being applied by the Court of Chancery, cited by majorities of the House of Lords and the High Court of Australia, has been misunderstood.
CONTENTS I Introduction 43 II What Is Vicarious Liability? 48 III An Equitable Ancestry of Vicarious Liability? 50 A Brydges v Branfill 51 B Fusion 57 IV A Role for [...]