In Reconceptualising Strict Liability for the Tort of Another,Footnote ¹ Christine Beuermann tackles two controversial doctrines. The first, vicarious liability, ‘arises where one person is held to be liable for torts committed by a second person, even though without fault himself or herself’.Footnote ² The doctrine typically responds primarily to the employment relationship, particularly when the tort is committed in the course of employment. The second, non-delegable duties, arise because a person owes a duty of care that they are unable to delegate to another.Footnote ³ As vicarious liability refers to secondary liability, and non-delegable duties refer to primary liability, the two are generally viewed as separate doctrines.Footnote ⁴ Despite this, non-delegable duties are thought to ‘plug the gaps’ found in vicarious liability,Footnote ⁵ as they are capable of responding to relationships concerning independent contractors. This has caused confusion for the courtsFootnote ⁶ and academicsFootnote ⁷ alike, both having difficulty in justifying the imposition of one doctrine over the other.

Both doctrines have seen significant expansion. Vicarious liability has been extended to include intentional torts,Footnote ⁸ and relationships outside of traditional employment.Footnote ⁹ Non-delegable duties, on the other hand, have been reconceptualised to arise on the basis of an assumption of responsibility.Footnote ¹⁰ Despite such expansions, there still remains an unconvincing distinction between the two doctrines.

On this basis, Beuermann justifies dispensing with the current approach and replacing it with a new framework that seeks to reshape our understanding of strict liability. The book itself is split into three parts. The first considers the current approach to strict liability for the tort of another from the perspective of England and Wales, and Australia; the second is dedicated to outlining her new expositive framework; and the third provides critique for that framework.

Beuermann begins by examining the relationships that give rise to strict liability for the tort of another, including the employment, the school, and the agency relationship.Footnote ¹¹ She argues that a common feature of all three relationships is the presence of authority, which acts as the overarching theme of the book. The concept of authority to justify the imposition of strict liability is nothing new.Footnote ¹² Atiyah considered different forms of authority (express, implied and ostensible) as a means to determine whether servants or agents could be seen to be acting within the course of their employment.Footnote ¹³ A further examination of authority was carried out by the author in her previous worksFootnote ¹⁴ and, more recently, by Gray.Footnote ¹⁵ Yet, in this book, Beuermann takes this one step further and successfully adopts the notion of authority to distinguish between cases in which strict liability is imposed and those in which it is not.

The concept of authority is at the core of the three forms of strict liability proposed in this book: conferred authority strict liability; employee strict liability; and agent strict liability. A chapter is dedicated to each of these doctrines to examine and contrast the ways in which authority manifests itself. Whilst differences do emerge, the foundations that cement all three doctrines lie not only in the presence of authority, but in the potential for that authority to be abused.

Two of the doctrines presented in this book respond to the conferral of authority from one party to another. This conferral of authority is thought to create a power relationship which would not otherwise exist and has the potential to be abused.Footnote ¹⁶ Whilst the two doctrines are aligned based on the nature of the relationships, the types of relationships they respond to are a way in which they are distinguished. Conferred authority strict liability is concerned with a school or employment relationship,Footnote ¹⁷ and agent strict liability is concerned only with the relationship that exists between a principal and agent.Footnote ¹⁸

Employee strict liability arises on a very different basis. Rather than requiring a conferral of authority, it responds only to the potential for an employer to abuse its vested authority to direct the conduct of an employee in a manner in which he or she may ‘unduly prioritise’ the directions of the employer, rather than ‘give due weight to alternate considerations’.Footnote ¹⁹

At the crux of Beuermann's framework is a distinction between apparent and actual authority. In cases concerning conferred authority and agent strict liability, she argues that it is the apparent authority of the tortfeasors that shapes their relationships with the employee, student or transactional party, rather than their actual authority.Footnote ²⁰ This is very important, as it permits the expansion of strict liability to cases involving disreputable instances of child sexual abuse where victims should expect the law to provide a remedy.

Beuermann, again, distinguishes employee strict liability from the aforementioned forms of liability, as she instead requires the presence of actual authority to ensure that the doctrine responds only to torts committed in the course of employment.Footnote ²¹ This, therefore, generally excludes conduct that an employer could not reasonably assume the employee would be engaging in and conduct that is of an intentional nature.Footnote ²² Crucially, this doctrine provides us with a viable alternative to the current approach to vicarious liability, as it justifies the imposition of strict liability based upon the way in which authority manifests itself, rather than on the mere presence of an employment relationship.

The way in which the author determines the treatment of independent contractors is another method that is adopted to distinguish between the three forms of liability. As the principal concern of the doctrines of conferred authority and agent strict liability relates to the conferral of vested authority, both forms of strict liability are capable of extending to independent contractors.Footnote ²³ This seems, prima facie, largely sensible as schools, for example, are sometimes known to delegate their responsibilities to persons outside of their employment. It is also possible, as the author does briefly acknowledge, that the conferral of authority outside of school or employment contexts may be found in other relationships, including between local authorities and foster parents,Footnote ²⁴ and between states and police officers.Footnote ²⁵ However, what Beuermann leaves largely uncertain is how far the doctrine is capable of extending. It is conceivable that this form of liability, in this sense, may require further expansion as relationships of this nature begin to emerge.

Unlike conferred authority and agent strict liability, employee strict liability is not capable of extending to independent contractors.Footnote ²⁶ This aligns with the dichotomous narrative of vicarious liability, that one must be either an employee or an independent contractor, the latter being excluded from the doctrine.Footnote ²⁷ Whilst the author does acknowledge that in some circumstances employers may be able to exercise authority over independent contractors, she argues that this will generally be limited to certain aspects of work and the contractor will likely remain largely autonomous over their own conduct. However, if we consider the litigation in relation to work in the gig economy, it is difficult to accept the assumption that all independent contractors retain autonomy and discretion over the way in which they carry out their work.Footnote ²⁸ A consideration of the different ways that authority may manifest itself across diverse employment relationships is absent from the book, which arguably makes the boundaries of employee strict liability difficult to determine. Nonetheless, the author does provide a rational and justifiable account of the exclusion of independent contractors.

The main strength of this book is Beuermann's impressive alignment of her expositive framework with the case law. To this end, she adopts the notion of authority to underpin a clear framework that can explain why, for example, an employer may be held strictly liable for a tort involving a workplace prank committed by an employee of higher rank, but not by an employee of equal rank.Footnote ²⁹ Interestingly, she adopts a different approach to the Supreme Court in her examination of the case Barclays Bank plc v Various Claimants. Footnote ³⁰ At the time of publication, the Court of Appeal had handed down judgment and concluded that the bank could be held strictly liable for the torts committed by the doctor who was, for all other purposes, an independent contractor.Footnote ³¹ In Beuermann's view, the relationship of concern was not between the bank and doctor, but was actually between the bank and its employees, as the employees had little choice but to attend the appointment with the doctor.Footnote ³² The judgment handed down by the Supreme Court bears little resemblance to Beuermann's interpretation of the relationships. It was held that the doctor was ‘not at any time an employee of the bank’, thus prohibiting the imposition of vicarious liability.Footnote ³³ It seems that the Supreme Court have some way to go in developing the boundaries of strict liability for the tort of another.

The readership of this book will largely be limited to those who are familiar with the developments of strict liability for the tort of another. Despite Beuermann's attempts to outline the current approach to imposing strict liability in such cases,Footnote ³⁴ the book does not contain a full exposition of the justifications relied on by the courts and scholars for imposing such liability. Since strict liability for the tort of another, generally speaking, runs contrary to the principles of tort, sufficient justification is required for its imposition.Footnote ³⁵ By not expounding these principles, she assumes, rather than persuades the reader, that the current approach is insufficient and should be replaced with her framework. In spite of this, the framework she proposes clearly explains the developments in a sphere of law which can often appear confusing or incoherent. The book is an excellent example of doctrinal research and provides a thoughtful and convincing contribution to the field.