Vicarious Liability in Tort A Comparative Perspective

Author: Paula Giliker
Publisher: Cambridge University Press
ISBN: 9781107627482
Published In: October 2013
Format: Paperback , 330 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Vicarious liability is controversial: a principle of strict liability in an area dominated by fault-based liability. By making an innocent party pay compensation for the torts of another, it can also appear unjust. Yet it is a principle found in all Western legal systems, be they civil law or common law. Despite uncertainty as to its justifications, it is accepted as necessary. In our modern global economy, we are unlikely to understand its meaning and rationale through study of one legal system alone. Using her considerable experience as a comparative tort lawyer, Paula Giliker examines the principle of vicarious liability (or, to a civil lawyer, liability for the acts of others) in England and Wales, Australia, Canada, France and Germany, and with reference to legal systems in countries such as the United States, New Zealand and Spain.

• Analyses and explains a controversial area of tort law, being a principle of strict liability in a subject dominated by concepts of fault-based liability

• Provides access to law not only in other common law systems, but also other European systems

• Chapter on European private law and the Draft Common Frame of Reference (DCFR) is the first study of its implications for vicarious liability from a leading comparative lawyer

• Suggests a number of much needed reforms

List of diagrams	xv
Table of cases	xvi
Table of legislation	xxxiv
Preface	xli
1 What is vicarious liability?	1
1.1 Introduction	1
1.2 Vicarious liability: an historical overview	6
1.3 The legal basis for vicarious liability	13
1.3.1 Distinguishing primary from vicarious liability	16
1.4 Conclusion	18
2 Establishing a general framework for liability	21
2.1 Introduction	21
2.2 Identifying a general framework for liability	21
2.2.1 Key terminology and codal provisions in English, French and German law	22
2.2.2 The requirement of a wrongful act	27
2.2.3 The right to an indemnity	30
2.2.4 A common law problem: vicarious liability for exemplary damages?	39
2.3 Liability for the acts of others in other areas of law	43
2.3.1 Contract law	44
2.3.2 Company law	46
2.3.3 Public law	50
2.3.4 The relevance of French criminal law	53
2.4 Conclusion	54
3 The employer/employee relationship: identifying the contract of employment	55
3.1 Introduction	55
3.2 The control test	57
3.3 Doubts as to the control test	60
3.3.1 Control and doctors: who is liable for the negligent surgeon?	61
3.3.2 Response	65
3.4 Alternative approaches to the control test	66
3.4.1 A more flexible interpretation of the control test	66
3.4.2 The organisation and composite tests	69
3.5 Application of the ‘totality of the relationship’ test: owner-drivers and bicycle couriers	73
3.5.1 The owner-driver	73
3.5.2 The bicycle courier	74
3.5.3 Distinguishing factors	75
3.6 Conclusion	77
4 Special difficulties: borrowed employees and temporary workers	81
4.1 Introduction	81
4.2 Lending employees: the ‘borrowed servant’ problem	83
4.2.1 Dual liability?	89
4.3 Temporary workers: vicarious liability for casual or agency staff?	93
4.3.1 Finding liability	95
4.3.2 A less technical approach?	97
4.4 Conclusion	98
5 Other relationships giving rise to liability	101
5.1 Introduction	101
5.2 Relationships giving rise to vicarious liability beyond the contract of employment: statute	103
5.3 Relationships giving rise to vicarious liability beyond the contract of employment: case law	106
5.3.1 Civil law systems	106
5.3.2 Common law ‘relationships’: using agency and non-delegable duties to extend strict liability for the torts of others	108
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?	127
5.4.1 The ‘representative agent’	127
5.4.2 The power to organise, direct and control the activities of another: the development of Blieck and Article 1384(1) of the French Civil Code	133
5.5 An appraisal: a new model to meet contemporary needs?	140
5.6 Conclusion	143
6 Acting in the course of one's employment/functions/assigned tasks: determining the scope of vicarious liability	145
6.1 Introduction	145
6.2 Limiting the scope of liability: acting in the course of employment/one's functions/assigned tasks	147
6.3 Determining the test for ‘course of employment’, ‘les fonctions auxquelles ils les ont employés’, ‘in Ausführung der Verrichtung’	150
6.3.1 The significance of policy	150
6.3.2 Prohibited conduct	153
6.3.3 The common law test: ‘course of employment’	157
6.3.4 Deliberate wrongdoing and the search for a new ‘course of employment’ test in the common law world	160
6.3.5 A different test for fraud?	175
6.3.6 The civil law test: the French example of ‘les fonctions auxquelles ils les ont employés’	181
6.4 Appraisal: what does ‘close connection’ or ‘dans les fonctions’ mean? Can a workable definition be found?	188
7 Parental liability for the torts of their children: a new form of vicarious liability?	196
7.1 Introduction	196
7.2 Parental responsibility at common law	197
7.2.1 Parental liability to their child	198
7.2.2 Parental liability to third parties injured by their child	200
7.3 Finding a framework for parental responsibility in tort law	203
7.3.1 Model One: fault-based liability – English and German law	206
7.3.2 Model Two: vicarious or strict liability – English, Spanish and French law	210
7.3.3 Strict liability – French law after 1997	213
7.4 Which model should a legal system utilise?	217
7.5 Conclusion: a common law doctrine of strict parental liability?	223
8 Understanding vicarious liability: reconciling policy and principle	227
8.1 Introduction	227
8.2 Theoretical justifications for vicarious liability in common and civil law	228
8.2.1 Fault: culpa in eligendo/in vigilando and the theory of identification	231
8.2.2 Victim compensation and loss distribution	234
8.2.3 Risk and deterrence	237
8.3 Balancing policy objectives: the modern approach to justifying vicarious liability	243
8.3.1 Prioritising risk: the fair allocation of the consequences of the risk and deterrence	245
8.3.2 A proportionate response: what is ‘fair and just’?	247
8.3.3 Conclusions	251
8.4 General conclusion	252
9 A postscript: a harmonised European law of vicarious liability?	255
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)	258
9.1.1 The relationship giving rise to liability: for whom is the employer liable?	259
9.1.2 ‘Within the scope of their functions’ and ‘course of employment or engagement’: to what extent is an employer liable?	262
9.2 Conclusion: practicality and principle	263
Appendix: Key provisions of the French and German Civil Codes	267
Index	273

Paula Giliker
University of Bristol
'The book deploys legal materials, code provisions, legislation, cases and academic commentary in a smooth and accessible manner. The pairing of originals and translations in the main body of the text is particularly helpful. The work proceeds with a clear structure. … All in all, the work does not try to be an exhaustive reference text but gives a clear exposition of the law and its problems. It even makes foreign law seem familiar and manageable to the reader. It is therefore an excellent book for students and established lawyers coming back to vicarious liability, including lawyers from outside England and Wales.' International and Comparative Law Quarterly