from the 1790s as to the conflict between vicarious liability and a movement towards a moral concept of personal fault.49 Doubts as to the principled basis of the doctrine led the courts to consider other means – the introduction of non-delegable duties or reliance on agency principles – in order to legitimise the imposition of liability for the acts of another. The impact of such devices will be examined in more detail in later chapters, but what appears is a lack of theoretical coherence which survives to this day. English law, a system based on a strong notion of precedent, has inherited a legacy which is muddled doctrinally and lacks a clear theoretical justification for the law applied by the courts.

1.3 The legal basis for vicarious liability

While civil law talks simply of ‘liability for the acts of others’, an ongoing debate exists at common law as to the legal basis for vicarious liability. The common law has developed two alternative legal bases for the doctrine. The first and most popular explanation is that it is indeed liability imposed on one person for the wrongful act of another. This is sometimes termed the ‘servant’s tort’ theory. The second (known as the ‘master’s tort’ theory) holds that the master is liable for the torts of the servant by reason of the attribution of the servant’s acts to the master. The law thereby deems the master to have committed the wrongful act.

Despite its historical origins, the master’s tort theory has received some support in modern law. In 1956, Glanville Williams argued strongly in its favour, terming it a fiction, justified by its results.50 It has also been relied upon in a number of cases. In Twine v Bean’s Express Ltd,51 for example, Twine had been given a lift in a van driven by the defendants’ employee, who had been expressly prohibited from taking passengers. Twine was aware of this. As a result of the negligent driving of the employee, Twine was killed and his widow brought an action against the driver’s employers. Uthwatt J, at first instance, approved

that cases in future would be pleaded in case only and not trespass, confirmed by Parke B in Sharrod v London and North Western Rly Co (1849) 4 Ex 580, 154 ER 1345).

49See Ibbetson, A historical introduction, pp. 181–4.

50See G. Williams, ‘Vicarious liability: Tort of the master or the servant?’, Law Quarterly Review, 72 (1956), 522 at 545 and Crown proceedings (London: Stevens, 1948), p. 43.

51[1946] 1 All ER 202. Approved by the Court of Appeal, but on other grounds, namely that the negligence of the driver was not committed in the course of his employment: (1946) 62 TLR 458.

the defendants’ decision to argue the case not on the basis as to whether the driver owed a duty to the passenger to take care, but whether the employers owed that duty. In his view, ‘the law attributes to the employer the acts of a servant done in the course of his employment and fastens upon him responsibility for those acts’.52 Additionally, in a number of decisions, Denning LJ argued that liability should not be seen as vicarious, but as personal to the master.53 Reliance was placed on case law reference to the maxim ‘qui facit per alium facit per se’, which can be translated as ‘He who acts through another, acts for himself’. It is questionable whether, in using this phrase, the courts did, in fact, intend to approve its literal meaning. The phrase has been frequently used by the courts to explain vicarious liability without any real discussion of its significance.54 Lord Reid in Staveley Iron and Chemical Co v Jones55 was critical of reliance on such maxims which he found to be ‘rarely profitable’ and ‘often misleading’:

The maxims respondeat superior and qui facit per alium facit per se are often used, but I do not think that they add anything or that they lead to any different results. The former merely states the rule baldly in two words, and the latter merely gives a fictional explanation of it.

Academics such as Newark were equally severe: ‘[t]he general principle enunciated in Twine’s case . . . is erroneous and is inconsistent with the essential nature of vicarious liability’.56 Subsequent case law has agreed.57 The House of Lords in Staveley Iron and Chemical

52[1946] 1 All ER at 204.

53See Broom v Morgan [1953] 1 QB 597 at 607–9 and Jones v Staveley Iron and Chemical Co. Ltd [1955] 1 QB 474, 480. Kitto J in Darling Island Stevedoring and Lighterage Co. Ltd v Long

(1956–7) 97 CLR 36, 60–5 equally argued for the master’s tort theory, relying upon the work of Glanville Williams and Denning LJ, although Fullagar J strongly disagreed.

54For example, Lord Kenyon CJ in Mitchell v Tarbutt (1794) 5 TR 649 at 651, 101 ER 362 at 363 commented merely that ‘it is immaterial whether the tort were committed by the defendant or his servant, because the rule applies qui facit per alium, facit per se’. Similar criticism may be directed at the phrase ‘respondeat superior’ (let the principal answer). Holmes cynically remarks that ‘It certainly has furnished us with one of the inadequate reasons which have been put forward for the law as it is’: Holmes, ‘Agency’, 357.

55[1956] AC 627 at 643.

56F. H. Newark, ‘Twine v Bean’s Express Ltd’, Modern Law Review, 17 (1954), 102 at 118.

57An apparent exception is Broom v Morgan [1953] 1 QB 597 where the plaintiff was able to sue the defendant employer for the negligence of her own husband. In the case itself, the wife had faced the obstacle of s. 12 of the Married Women’s Property Act 1882 (since repealed) which barred a claim against her husband. In such circumstances, any claim would have to be brought against a third party for negligence. Interpreting the section as merely providing a procedural bar to the claim does not, however, prevent the

Co Ltd v Jones58 and Imperial Chemical Industries Ltd v Shatwell59 strongly supported the servant’s tort theory of vicarious liability. Lord Morton remarked in Staveley that:

Cases such as this, where an employer’s liability is vicarious, are wholly distinct from cases where an employer is under a personal liability to carry out a duty imposed upon him as an employer by common law or statute. In the latter type of case the employer cannot discharge himself by saying: ‘I delegated the carrying out of this duty to a servant, and he failed to carry it out by a mistake or error of judgment not amounting to negligence.’ . . . These words, however, are, in my view, incorrect as applied to a case where the liability of the employer is not personal but vicarious.60

It cannot be denied that this view represents the most straightforward view of vicarious liability. It is a rule of responsibility, not attributed fault. It is highly artificial to attribute to one person the wrongdoing of another simply on the basis of a pre-existing relationship in the absence of some form of consent or legal necessity.61 Legal fictions should be discouraged whenever possible in the law in that they tend to undermine confidence in the openness and legitimacy of the legal process. More importantly, the master’s tort theory blurs the whole notion of individual responsibility. Primary liability exists for one’s own wrongdoing. Secondary liability logically represents liability for the acts of others. The ‘master’s tort’ doctrine fits naturally within neither category and thereby undermines the clarity of tort law in general. Further, it neglects an important aspect of vicarious liability. As will be seen, vicarious liability generally renders both the tortfeasor and the person deemed at law responsible jointly liable to the victim. The master’s tort theory renders solely the master liable. The level of accountability existing within vicarious liability is thus lost.62

The dominant view is thus that the ‘servant’s tort’ theory prevails. Nevertheless, one author went so far recently as to comment, ‘The (modern) language of “vicarious liability” presupposes that what is being

existence of a tort by the husband for which the employer could be held vicariously liable: see Osborn v Gillett (1873) LR 8 Exch 88.

60[1956] AC 627 at 639. See also Lord Reid at 643: ‘an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment.’

61For example, it is necessary to identify the acts of directors with that of the company which clearly cannot act by itself.

62The ‘master’s indemnity’ will be examined in Chapter 2.

Thus expressed, the claims are distinct and based on different duties of care. The Wilsher case is useful, also, in helping us understand one of the points of confusion in this area of law. Few would dispute that where X commits a tort which injures W, the resultant liability of X is primary, not vicarious. The facts of Wilsher were, however, more complicated. In claim (i), the Area Health Authority (AHA) commits a tort by failing to provide a doctor of sufficient skill with the result that the doctor provided (let us call him Z) injures W. Here, the immediate injury to W is caused by Z. Z has been negligent. Nevertheless, the action will be brought against the AHA on the basis of primary liability.

The cause of this confusion is the concept of the non-delegable duty. Here, the duty is imposed on one party to ensure that reasonable care is taken to protect another.67 Although this duty can be delegated, responsibility cannot.68 Hence, the AHA is under a non-delegable duty to see that a reasonable standard of care is provided to those treated at the hospital and, where this does not occur, it is held primarily responsible for breach of its non-delegable duty.69

Despite this clear conceptual division, the courts have not always avoided this potential source of confusion. The recent English debate as to the recoverability of exemplary (or punitive) damages under the doctrine of vicarious liability illustrates this point. Such damages are peculiar to the common law, providing claimants with an additional sum of damages whose goal is to punish the defendant for his misconduct and deter him and others from undertaking such conduct in future. As will be discussed in more detail in Chapter 2, the common law courts have struggled to deal with the question of whether the person vicariously liable should be required to pay exemplary, in addition to compensatory, damages. For Lord Scott in Kuddus v Chief Constable of Leicestershire Constabulary, the answer was simple: a person should only be required to pay exemplary damages when he has committed punishable behaviour, that is, he is personally at fault.70 However, as the Law

67This is distinct from principles of agency whereby the principal (X) may be found liable for the torts of his agent (Z) if the act in question is authorised or ratified by him. Agency will be dealt with in Chapter 5.

68The classic example is that of an employer for the safety of his employees: see Wilsons & Clyde Coal Co. v English [1938] AC 57.

69Cassidy v Ministry of Health [1951] 2 QB 343. See also A v Ministry of Defence [2004] EWCA Civ 641; [2005] QB 183.

70[2002] 2 AC 122 at para. 131. The question was not argued and such comments are thus obiter.