|
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
|
