Vicarious Liability: Critique and Reform

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Vicarious Liability: Critique and Reform

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The scope of vicarious liability has significantly expanded since its original conception. Today employers are being found liable for actions of employees that they did not authorise, and never would have authorised if asked. They are being held liable for an employee's criminal activity. In the related strict liability field of non-delegable duties, they are being held liable for wrongdoing of independent contractors.

Notions of strict liability have grown increasingly isolated in the law of tort, given the exponential growth in the tort of negligence. They require intellectual justification. Such a justification has proven to be elusive and largely unsatisfactory in relation to vicarious liability and to concepts of non-delegable duty. The law of three jurisdictions studied has now apparently embraced the 'enterprise risk' theory to rationalise the imposition of vicarious liability.

This book subjects this theory to strong critique arguing that it has many weaknesses, which the courts should acknowledge. It suggests that a rationalisation of the liability of an employer for the actions of an employee lies in more traditional legal doctrine, that would serve to narrow the circumstances in which an employer was legally liable for a wrong committed by an employee.

PART I: OUTLINE OF DEVELOPMENT OF VICARIOUS LIABILITY IN CHOSEN JURISDICTIONS

Introduction to Part I

1. Developments in English Legal History

Historical Development of Vicarious Liability Until the Early Twentieth Century

Vicarious Liability in the Context of Other Developments in Tort Law

Summary and Reflections on Historical Development of Vicarious Liability

2. Developments in United Kingdom Vicarious Liability Law: Twentieth and Twenty-First Centuries

Development

Most Recent Developments

Some Critique and Reflection on United Kingdom Case Law

3. Developments in Australian Case Law

Historical Development

Most Recent Developments

Some Critique and Reflection on Australian Case Law

4. Developments in North American Case Law

Canadian Development

United States Developments

Conclusion to Part I

PART II: THEORIES OF VICARIOUS LIABILITY

Introduction to Part II

5. Enterprise Risk Theory

Scholarly Support for Enterprise Risk Theory

6. Criticisms of Enterprise Risk Theory

Summary of Weaknesses in Relation to Enterprise Risk as a Species of Strict Liability to Justify the Imposition of Vicarious Liability

Historical Weaknesses

The Theory Does Not Explain the Existing Contours of Vicarious Liability

The Theory Seems Applicable as a General Principle by which an Organisation is Liable to Others for Harms Caused, but is Not So Applied

It Makes ‘Brave’ Assumptions about Loss Spreading and Insurance

It Does Not Describe How Judges Actually Decide Tort Cases, and Does Not Describe How Judges Should Decide Tort Cases

It Relies on Inherently Ambiguous Concepts

Deterrence

7. Other Theories

Evidentiary Considerations

Deep Pockets

Fair, Just and Reasonable

Conclusion

8. Agency Theory

Introduction to Agency Theory of Vicarious Liability

Pragmatism and Principle

(a) Argument that the Act of the Agent (Employee) is in Effect the Act of the Principal (Employer)

(b) Argument that the Law of Vicarious Liability Imposes Liability on the Principal (Employer) for the Acts of the Agent (Employee), but Does Not Consider them the Employer’s Acts

The Law of Agency

Conclusion to Part II

PART III: MISCELLANEOUS ISSUES

Introduction to Part III

9. The Relationships to Which Vicarious Liability Might Attach

Establishing that an Employment Relationship Exists

The Exceptionality of Making One Person Liable for the Actions of Another

Why Has the Law Fixated on ‘Control’ in Relation to Liability for What Another Did?

Borrowed Employees and the Possibility of Dual Vicarious Liability

Conclusion

10. Non-Delegable Duties

Relationship with Vicarious Liability