- •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
Preface
Like most lawyers, I first came across the doctrine of vicarious liability in tort as a student. I found it somewhat of an oddity: a principle of strict liability in an area of law dominated by fault, notably the tort of negligence. Vicarious liability seemed to be the cuckoo in the nest; imposing liability without fault on innocent parties (usually employers) regardless of their attempts to exercise reasonable care. I soon learnt that whilst the doctrine was regarded as an indispensable element of the law of torts, my textbooks could provide no clear rationale for its existence and that, in practice, uncertainty seemed to arise at each stage of its operation: was there a relationship giving rise to vicarious liability? What connection had to exist between the employee’s (it is in most cases the employee) misconduct and the job he was supposed to perform? Frustratingly, later, as a teacher and lecturer in law, these problems continued to trouble me and, dare I say, intensified in the face of cases arising from the Supreme Courts of leading common law jurisdictions in 1999,1 20012 and 20033 in which the most learned judges of each jurisdiction struggled both to provide an explanation for vicarious liability and a legal framework in which the doctrine could be applied. Further, as a comparative lawyer, I came to realise that this was not just a common law problem. Civil lawyers equally experienced difficulties in delineating both a role and workable legal framework for its equivalent doctrines (usually termed ‘liability for the acts of others’).4 Comparative law produced two immediate insights, however. First, that the basic
1Bazley v Curry (1999) 174 DLR (4th) 45.
2Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215.
3New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511.
4See, generally, B. Koch (ed.), Unification of tort law: liability for damage caused by others
(The Hague: Kluwer International, 2003).
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legal framework was similar in all systems and raised similar interpretative difficulties. Secondly, that despite the German Civil Code refusing to accept a strict liability principle in its Civil Code of 1896, the courts had nevertheless found ways of imposing strict liability in circumstances similar to that found in the common law and non-Germanic civil law systems. There is therefore something fundamental about this doctrine, arising in some form in all Western legal systems.
This, in essence, is the inspiration for this book: trying to understand the doctrine which we will call for convenience ‘vicarious liability’. Although the term derives from the common law, it is used here to signify a concept, not a particular legal system. ‘Vicarious liability’ is used thus in a trans-systemic way, as equivalent to the French doctrine of responsabilite´ du fait d’autrui under Article 1384 of the Civil Code (C civ.) and compared with the German doctrine of Haftung fu¨r den Verrichtungsgehilfen under } 831 of the Civil Code (BGB). The term ‘liability for the acts of others’, preferred in civil law, is too inclusive: it can include primary liability for the acts of others and also, potentially, liability for non-tortious actions. ‘Vicarious liability’ is used here to signify the strict liability of one person for the tortious/wrongful acts of the other.
To reach an understanding of this doctrine, the prism of comparative law is utilised, looking at not only common law systems such as Canada, Australia and, to a more limited extent, New Zealand and the United States, but also considering liability in France – which in its 1804 Civil Code had already imposed strict liability on employers for the torts of their employees – and Germany, as representative civil law systems. The aim is to go beyond the technicalities of individual legal systems to examine the key constituents of a vicarious liability claim more broadly and to gain a deeper understanding of its operation and its potential development, whilst highlighting areas where reform is needed. The structure of the book therefore follows this pattern. After a brief introduction, I will examine the general framework of liability in common and civil law jurisdictions, then move on to its key elements:
relationships giving rise to vicarious liability (employer/employee; borrowed employees and temporary workers; other relationships giving rise to liability) and
the limits to the scope of liability: acting in the course of one’s employment/ functions/assigned tasks.
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Consideration will also be given to the potential for vicarious liability to be extended into other areas of law, for example, parental liability for their children’s torts.
Such a study leads to a number of fundamental questions. Can we identify a clear rationale for this doctrine? Are clear and simple tests identifiable for the issues discussed above? How do twenty-first century developments, for example, attempts to find unified principles of European tort law, impact on our common understanding of this doctrine? In writing this book and considering the answers to all these questions, I have gained a deeper understanding and awareness of the nature and character of this doctrine and I hope, in this book, to share that with my readers.
A book such as this is not written without support and I must thank both my colleagues and comparative law students at the University of Bristol for their interest and support in this endeavour. I would also like to thank Cambridge University Press, in particular Finola O’Sullivan, and Harold Luntz, Keith Stanton, Claudina Richards, Friedrich Schulenburg and Colm McGrath for their assistance. I must also thank the long-suffering Keith and Jasper for whom the two words ‘vicarious’ and ‘liability’ have become impossible to avoid in the last two years and who now know far more about this subject than, in their opinions, they ever needed to know!
Paula Giliker
Bristol