X v The Lord Advocate : Challenges and Concerns for Vicarious Liability

In X v The Lord Advocate , the Supreme Court of the United Kingdom held that the Crown cannot be vicariously liable for torts committed by judges. This case note critically examines what could be viewed as two significant doctrinal shifts that were introduced by this ruling. First, it considers whether the ‘five incidents test’ was sidelined in favour of a functional approach through implicit use of language. I argue that the ‘five incidents test’ should be viewed as good law as all three courts’ analyses engage with its factors and as there are rule of law reasons to reject the possibility of amending the law through implicit non‐application. Second, I argue that X v The Lord Advocate is a further instance of a trend in the Supreme Court's jurisprudence of narrowing the scope of vicarious liability. This trend has an unacknowledged gendered aspect. Narrowing vicarious liability has predominantly arisen in cases involving adult women who were physically or sexually assaulted, thus restricting the reach of vicarious liability and leaving women with diminished legal recourse.