- •Diagrams
- •Table of cases
- •Table of legislation
- •Preface
- •1.1 Introduction
- •1.2 Vicarious liability: an historical overview
- •1.3 The legal basis for vicarious liability
- •1.4 Conclusion
- •2.1 Introduction
- •2.2 Identifying a general framework for liability
- •2.3 Liability for the acts of others in other areas of law
- •2.4 Conclusion
- •3.1 Introduction
- •3.2 The control test
- •3.3 Doubts as to the control test
- •3.4 Alternative approaches to the control test
- •3.6 Conclusion
- •4.1 Introduction
- •4.3 Temporary workers: vicarious liability for casual or agency staff?
- •4.4 Conclusion
- •5.1 Introduction
- •5.2 Relationships giving rise to vicarious liability beyond the contract of employment: statute
- •5.3 Relationships giving rise to vicarious liability beyond the contract of employment: case law
- •5.4 A new model to meet contemporary needs: representative agents or liability arising out of the ability to direct, control and manage the activities of another?
- •5.5 An appraisal: a new model to meet contemporary needs?
- •5.6 Conclusion
- •6.1 Introduction
- •7.1 Introduction
- •7.2 Parental responsibility at common law
- •7.3 Finding a framework for parental responsibility in tort law
- •7.4 Which model should a legal system utilise?
- •7.5 Conclusion: a common law doctrine of strict parental liability?
- •8.1 Introduction
- •8.2 Theoretical justifications for vicarious liability in common and civil law
- •8.3 Balancing policy objectives: the modern approach to justifying vicarious liability
- •8.4 General conclusion
- •9.1 Two frameworks for liability: Article 6:102, PETL (liability for auxiliaries) and Book VI, Article 3:201, DCFR (accountability for damage caused by employees and representatives)
- •9.2 Conclusion: practicality and principle
- •Index
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strict liability for motor accidents in France and Germany, no fault liability in New Zealand under the Accident Compensation Scheme,107 and the extent to which most jurisdictions have brought workers’ compensation into the social security system); the availability of insurance provision and the level of employee protection generally. What is important is that the conditions giving rise to vicarious liability are not seen in the abstract, but within a policy-based framework. This allows us to understand the differences (and similarities) between legal systems and the values they represent. This is a vital step in reaching a deeper understanding of the doctrine of vicarious liability itself.
8.4General conclusion
The rationales underlying vicarious liability have varied over time. In the context of small, pre-Industrial Revolution businesses, the justification of fault (implied/presumed) or identification seems the strongest: the high level of control exercised over individual employees by individual employers rendering this the most logical rationale. Post-Industrial Revolution with the rise of corporations, the skilled professional and the existence of a strong insurance market, justifications change. To this must be added welfare considerations which encourage the compensation of innocent victims and use of loss distribution mechanisms to spread risk throughout society or at least a particular sector. The rationales used by systems reflect such evolving concerns, but also some conservatism: an unwillingness to relinquish any concept of fault, albeit fictional, and concern against overburdening employers. This is despite increased recognition of the social importance of responding to the risks arising from the workplace. No system has chosen to render employers liable for all harms caused by the risks of their enterprise, be they nontortious or caused by independent contractors. In reality, the search for what is ‘fair and just’ represents an attempt to balance the concerns raised above according to what is deemed desirable by society at any one time. At times, law must recognise that certainty does not equate with social justice and while the aim of this book has been to give guidance and a clearer structure to the law, it cannot fail also to recognise the nuances in the law, which make tort law capable of adapting and evolving over time and changing to meet new social needs. Put simply, there is a limit to what ‘vicarious liability in tort’ can achieve in terms of
107 Accident Compensation Act 2001 (NZ). See, generally, www.acc.co.nz/.
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risk distribution and victim compensation and, as Atiyah recognised in 1967, other mechanisms exist which deal more efficiently and effectively with victim needs. Vicarious liability is thus a compromise: a private law mechanism which seeks to provide some resolution to the needs of victims and reflects increasing awareness of the need to respond to the risks posed to society by industrialisation and technological advances. It is a compromise which reflects the variety of policy justifications utilised by the courts and will inevitably result in variations between different legal systems.
What may be recognised, however, are the similarities which exist between legal systems and that, despite its uncertainties, the doctrine continues to play a significant role in modern legal systems today. This book has identified the common general framework across legal systems and that the same basic questions are asked in both civil and common law systems: what relationships give rise to liability? What connection must exist between the person harming the victim and his relationship with the defendant? On what basis may such liability be justified? In Chapters 3–5, we demonstrated that, although the employer/employee relationship is the primary relationship in all legal systems, all systems go beyond this relationship. In Chapter 5, we strongly argue that common law systems should include the so-called ‘dependent contractor’ within the doctrine of vicarious liability and thereby extend the doctrine to include temporary and agency workers who are economically dependent on the employer. This would give conceptual clarity and remove once and for all the questionable assumption that the definition of ‘employee’ should be the same in all areas of the law. Equally, resort to non-delegable duties and agency principles is both unhelpful and counter-productive and should be avoided whenever possible. As doctrines based on primary liability, they do not advance our understanding of vicarious liability, but represent in many cases an historical device designed to circumvent the limitations of the vicarious liability doctrine. The answer is obvious: once the narrow definition of the relationship giving rise to vicarious liability is removed, the need for such circumlocutions will disappear. In Chapter 6, we examined the trend in modern legal systems to extend the scope of liability by means of more generous definitions of ‘course of employment’ or ‘the functions for which the tortfeasor has been employed’ which demonstrated increased reliance on risk-based reasoning, embraced to varying extents across legal systems. Such case law provides a practical example of the need to balance the policy interests identified in this chapter, including
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the contentious extension of liability for intentional torts. It is argued that more guidance is needed and that the common law courts should be more willing to consider the possibility of primary liability in such circumstances and focus vicarious liability on situations where the employee has wrongfully harmed persons or objects which he has been employed to protect. Chapter 7 contrasted common law adherence to negligence reasoning in relation to parental liability for the torts of their children with the position in most European States. In rejecting the possibility of risk-based reasoning or even a presumption of fault in this context, the common law courts have demonstrated an unwillingness to extend strict liability, recognising the continued importance of parental autonomy (at least in tort law) and the limitations of tort law as a mechanism for social change.
Despite such reservations, the need for vicarious liability is unquestioned. It is not a quirk of the common law but a principle which crosses legal systems in a surprisingly similar way. Different terminology and legal structures should not blind us to the similar legal frameworks which exist across common and civil law jurisdictions. This would suggest one final conclusion to this work: vicarious liability is part of our legal systems and, whilst difficult to understand, represents a fundamental part of the ability of the law of tort or delict to respond to changing social and economic needs. It will thus continue to evolve and change in accordance with the changing values of society. Legal systems should therefore avoid rigidity and ensure that changes – we have highlighted here new employment structures – are integrated into its principles. The policy rationales described in this chapter impact on all aspects of the vicarious liability framework. Like all elements of tort law, it is not static: this is its strength, not its weakness.
9A postscript: a harmonised European law of vicarious liability?
This chapter will consider the potential impact of proposals for the future harmonisation of European private law. From the 1980s, there has been growing support for the possibility of harmonisation of private law at a European level.1 Although initially primarily academic initiatives, from 1989 support has also been received from the European Parliament2 and Commission.3 Recent years have seen three major publications of European tort law principles: the Principles of European Tort Law (PETL) (2005),4 Principles on Non-Contractual Liability Arising out of Damage Caused to Another (the SGECC principles) (2006),5 and the Draft Common Frame of Reference (DCFR) (2009).6 These projects go
1The prime motivator was Ole Lando, who, in 1982, established the Commission on European Contract Law, leading to the publication of the Principles of European Contract Law (PECL): see O. Lando and H. Beale, Principles of European contract law: Parts I and II (The Hague: Kluwer Law International, 2000) and O. Lando et al. (eds.), Principles of European contract law: Part 3 (The Hague: Kluwer Law International, 2003).
2See the resolutions of the European Parliament of 26 May 1989 (OJ C 158, 26.6.1989,
p. 400), 6 May 1994 (OJ C 205, 25.7.1994, p. 518), 15 November 2001 (OJ C 140 E, 13.6.2002, p. 538) and 2 September 2003 (OJ C 76 E, 25.3.2004, p. 95) that a uniform internal market cannot be fully functional without further steps towards the harmonisation of civil law.
3Notably Communication from the Commission to the Council and European Parliament on European Contract Law of 11 July 2001, COM (2001) 398 final.
4European Group on Tort Law, Principles of European tort law (The Hague: Kluwer, 2005); www.egtl.org/principles/
5Non-Contractual Liability Arising out of Damage Caused to Another: www.sgecc.net/.
6Note also the work of the Trento Common Core project, which seeks to identify ‘the common core of the bulk of European private law, i.e., of what is already common, if anything, among the different legal systems of European Union member states’: The Common Core of European Law: see www.common-core.org/theproject.html and publications such as M. Bussani and V.V. Palmer (eds.), Pure economic loss in Europe (Cambridge University Press, 2003) and F. Werro and V. V. Palmer (eds.), The boundaries of strict liability in European tort law (Durham, NC: Carolina Academic Press, 2004).
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beyond a summary of existing law, but seek to establish a set of principles for future European private law. In the words of one of the project groups:
The aim of the Study Group is to produce a set of codified principles for the core areas of European private law (patrimonial law). Although the foundation for our work is detailed comparative law research, the principles which we are fashioning will represent more than a mere restatement of the existing law in the various EU jurisdictions from the standpoint of the predominant trends among the diverse legal regimes. Instead the Study Group seeks to formulate principles which constitute the most suitable private law rules for Europe-wide application.7
The most significant proposal to date is that of the DCFR. In October 2009, the Study Group on a European Civil Code (SGECC) and the Research Group on EC Private Law (‘Acquis Group’) published a sixvolume work entitled Principles, definitions and model rules of European private law: draft Common Frame of Reference. Full edition,8 replacing earlier outline editions published in 2008 and early 2009. This represents the result of a three-year research project, requested and funded by the European Commission,9 and supported by the European Parliament.10 The idea of a Common Frame of Reference was raised by the Commission in its 2003 Communication, ‘A more coherent European contract law – an action plan’,11 in which it envisaged a publicly accessible document
7SGECC Aims: www.sgecc.net/ (emphasis added).
8C. von Bar and E. Clive (eds.) (Munich: Sellier, 2009).
9Reflecting the work of the Joint Network on European Private Law (CoPECL: Common Principles of European Contract Law) funded as a ‘Network of Excellence’ under the
European Commission’s sixth Framework Programme for Research and Technological Development, Priority 7 – FP6–2002-Citizens-3, Contract N 513351.
10See, for example, European Parliament resolution on European contract law and the revision of the acquis: the way forward of 23 March 2006: P6_TA(2006)0109, and European Parliament resolution on European contract law of 7 September 2006: P6_TA(2006)0352.
11See European Commission, ‘A more coherent European contract law – an action plan’ February 2003 COM (2003) 68 final, OJ C 63, 15. 3. 2003, p. 1, calling for comments on three proposed measures: increasing the coherence of the acquis communautaire, the promotion of the elaboration of EU-wide standard contract terms, and further examination of whether there is a need for a measure that is not limited to particular sectors, such as an ‘optional instrument’. The second measure of EU-wide standard contract terms was not being taken forward: see European Commission, ‘First Progress Report on the Common Frame of Reference’ COM (2005), 456 final, p. 10. The nature of the CFR is further elaborated in the subsequent Communication: ‘European Contract Law and the revision of the acquis: the way forward’ COM (2004) 651 final, 11 October 2004, in which it was described as ‘a tool box for the Commission when preparing proposals, both for reviewing the existing acquis and for new instruments’: Annex 1.
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providing best solutions in terms of common terminology and rules, which would assist Community institutions in revising the existing and future acquis communautaire, act as a possible point of reference for legal development by national legislators and provide the basis for further reflection on an optional instrument12 in the area of European contract law.13
The final version of the DCFR consists of 6,563 pages and goes far beyond the harmonised principles and rules of contract law requested by the Commission.14 It contains ‘principles, definitions and model rules’ of European private law (together with copious comparative notes and comments on the model rules) and takes the form of ten books, including General principles (Book 1), Contracts and other juridical acts (Book II), Obligations and corresponding rights (Book III), Specific contracts and the rights and obligations arising from them (Book IV), Non-contractual liability arising out of damage caused to another (tort law) (Book VI), Unjustified enrichment (Book VII) and Trust law (Book X). The aim of the drafters of the DCFR is clear: ‘If the content of the DCFR is convincing, it may contribute to a harmonious and informal Europeanisation of private law’.15 Vicarious liability (or, to use the terminology of the DCFR, ‘Accountability for damage caused by employees and representatives’) is found in Book VI, Article 3:201.
This brief chapter will examine two proposals for a common European law of vicarious liability provided by PETL and the DCFR (the wording of the DCFR is the same as that of the SGECC principles).16 It will consider to what extent harmonisation of the principles of vicarious liability is possible using these models and what this signifies in terms of the future of vicarious liability at a European level.
12That is, a set of general principles on European contract law, which would place at the disposal of parties an additional contract law regime.
13European Commission, ‘Action plan’, 4.1.1.
14A fact acknowledged by the drafters in von Bar and Clive (eds.), Principles, definitions and model rules, Introduction, paras. 30–1: ‘The coverage of the DCFR is thus considerably broader than what the European Commission seems to have in mind for the coverage of the CFR . . . The “academic” frame of reference is not subject to the constraints of the “political” frame of reference . . . The correct dividing line between contract law (in this wide sense) and some other areas of law is in any event difficult to determine precisely. The DCFR therefore approaches the whole of the law of obligations as an organic entity or unit.’
15See ibid., Introduction, para. 8.
16See www.sgecc.net/media/downloads/updatetortlawarticles_copy.doc.