DISCERNING THE FORM AT THE SECOND STAGE OF VICARIOUS LIABILITY

Abstract This article uses Atiyah and Summer's categorisation of the attributes of formal legal reasoning in Form and Substance in Anglo-American Law to examine the type of legal reasoning process used by the courts in England and Wales when determining the second stage of vicarious liability. The analysis shows that, although remaining formal in nature, the shift away from the Salmond test has resulted in a shift in the type of form used by the courts. It is suggested that future guidance issued by the Supreme Court to lower courts when determining the second stage of vicarious liability needs to take account of this change for the guidance to be effective.