Reconceptualising Strict Liability for the Tort of Another

Christine Beuermann

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509917549
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto del risarcimento per fatto illecito

This book adopts a novel approach to resolving the present difficulties experienced by the courts in imposing strict liability for the tort of another. It looks beyond the traditional classifications of 'vicarious liability' and 'liability for breach of a non-delegable duty of care' and, for the first time, seeks to explain all instances of strict liability for the tort of another in terms of the various relationships in which the courts impose such liability. The book shows that, despite appearances, there is a unifying feature to the various relationships in which the courts currently impose strict liability for the tort of another. That feature is authority. Whenever the courts impose strict liability for the tort of another, the defendant is either vested with authority over the person who committed a tort against the claimant or has vested or conferred a form of authority upon that person in respect of the claimant. This book uses this feature of authority to construct a new expositive framework within which strict liability for the tort of another can be understood.

1

Introduction

The cases in which strict liability is imposed on a defendant for a tort committed by another person appear inconsistent and often contradictory. An employer, for example, can be held liable for a crane driver who negligently harms an employee,¹ but not for a tool manufacturer who negligently harms an employee.² A school can be held liable for a teacher who sexually assaults a student,³ but not for a janitor who sexually assaults a student.⁴ Explaining such distinctions has proved difficult throughout the common law world.⁵

This book takes an important first step towards developing a convincing justification for the strict liability imposed on a defendant for the tort of another which is capable of accommodating such distinctions. It shows that, despite appearances, there is a unifying feature to the various cases in which the courts impose such liability. That feature is authority. Whenever the courts impose strict liability on a defendant for the tort of another, the defendant is either vested⁶ with authority over the person who committed the tort or has conferred⁷ a form of authority upon that person in respect of the claimant.⁸ This book uses this feature of authority to construct a new expositive framework within which the strict liability imposed on a defendant for the tort of another can be better understood.

Part I of the book will start by identifying the circumstances in which the courts currently impose strict liability on a defendant for the tort of another. It shows that the range of circumstances in which such liability has been imposed by the courts has narrowed over time, such that the imposition of strict liability for the tort of another is largely restricted to three main types of relationships:⁹

1.the employment relationship (the relationship between an employer and an employee);

2.the school relationship (the relationship between a school¹⁰ and a student); and

3.the agency relationship (the relationship between a principal and a contractual agent¹¹).

The feature of authority is common to all three relationships. Importantly, the recent introduction by the courts in England and Wales of new tests for both vicarious liability¹² and so-called ‘liability for breach of a non-delegable duty of care’¹³ has yet to see any expansion of the circumstances in which strict liability is imposed on a defendant for the tort of another beyond relationships of which authority is a feature.¹⁴

Part II of the book uses this feature of authority to construct a new expositive framework for the strict liability imposed on a defendant for the tort of another. Three separate forms of strict liability are identified and explained:

1.strict liability for the tort of a person upon whom authority has been conferred in relation to another or conferred authority strict liability (found in the employment and school relationships¹⁵);

2.strict liability for the tort of an employee or employee strict liability (found in the employment relationship only); and

3.strict liability for the tort of an agent or agent strict liability (found in the agency relationship only).

Each form of strict liability is shown to reflect differences in the nature of the authority present in each of the relationships by reason of which strict liability is imposed on a defendant for a tort committed by another person.

Part III of the book sets out the advantages of the proposed expositive framework. It demonstrates how that expositive framework makes clear the boundaries between the different forms of strict liability for the tort of another and how it can be used to explain what appear to be miscellaneous examples of the liability. It is argued, in conclusion, that the proposed expositive framework is capable of providing new insights into both the justification for the strict liability imposed on a defendant for the tort of another and the structure of the law of torts more generally.

To start, however, it is first necessary to consider the nature of the strict liability imposed on a defendant for the tort of another and the framework within which such liability is currently understood.

I.What is ‘Strict Liability for the Tort of Another’?

The phrase ‘strict liability for the tort of another’ is used in this book to describe any form of liability imposed in tort which exhibits the following two characteristics. First, the liability is imposed in respect of a tort committed by a person other than the defendant against the claimant. Secondly, the liability is imposed regardless of whether the defendant also personally engaged in any conduct¹⁶ in respect of the claimant to which liability in tort might attach.¹⁷ It is not that the defendant did not commit a tort against the claimant, but that the claimant does not need to provide evidence of such a tort in order to succeed against the defendant.¹⁸ Instead, it is sufficient for a claimant to show that:

1.a person other than the defendant committed a tort against the claimant;

2.the defendant was party to a relationship (whether with the claimant or the person who committed the tort against the claimant) which had the requisite features to attract strict liability; and

3.the commission of the tort by the other person was sufficiently connected¹⁹ with that relationship for strict liability to be imposed.

‘Strict liability for the tort of another’ is therefore imposed by reason of the relationship to which the defendant is party rather than by reason of anything the defendant did or did not do (other than enter into the relationship by reason of which liability is imposed).²⁰

By definition, the phrase ‘strict liability for the tort of another’ excludes any form of liability triggered by a tort committed by a person other than the defendant which is only imposed once a claimant adduces evidence of conduct personally engaged in by the defendant which is itself capable of attracting liability in tort. The liability imposed on a defendant in such circumstances is personal, rather than strict. An example of personal liability for the tort of another is the duty of care recognised by the House of Lords in Home Office v Dorset Yacht Co Ltd.²¹ In that case, notwithstanding that the tort of trespass was committed by the escaped borstal boys, the liability sought to be imposed on the Home Office was liability for its own negligence in allowing the escape (of which proof was required). The liability imposed by the High Court of Australia in Geyer v Downs²² is another example of personal liability for the tort of another. In that case, a school was held liable when a student was ‘accidentally struck on the head by a softball bat’ held by another student.²³ Once again, notwithstanding that the tort of battery had been committed by one student against another, the school was held liable for its own negligence in not adequately supervising the playground at the time the incident occurred and proof of that negligence had to be adduced by the claimant in order for liability to be imposed.

As this book is solely concerned with strict liability for the tort of another, it does not examine any of the various forms of liability which require a claimant to adduce evidence of conduct personally engaged in by the defendant which attracts liability in tort. Personal liability is not ignored altogether, but the consideration of personal liability is limited to the final chapter which briefly explores the implications of this book on the explanation of personal liability arising within the same relationships and the structure of the law of torts more generally.

The phrase ‘strict liability for the tort of another’ also excludes any form of strict liability triggered by a tort committed by another person against the claimant which is imposed for reasons other than a relationship with the requisite features to which the defendant is party (whether with the claimant or the person who committed the tort against the claimant). Consider the liability imposed in Rylands v Fletcher.²⁴ In that case, the defendant land owner engaged an independent contractor to construct a dam which subsequently collapsed into a series of subterranean mine shafts, flooding a neighbouring property. Although the defendant land owner was held liable for the damage, it can be argued that it was not the defendant land owner’s relationship with the independent contractor that attracted liability, but the defendant land owner’s ‘non-natural’ use of land which created a reasonably foreseeable risk of harm to the neighbouring property.²⁵ Specifically, the decision of the land owner to construct and maintain a dam which had the consequence of causing water to escape to the neighbouring property. As this book is principally concerned with strict liability for the tort of another which arises by reason of a relationship to which the defendant is party, this book does not examine any of the various forms of strict liability which arise for reasons other than that relationship.

Although this book is limited to examining ‘strict liability for the tort of another’, the analysis may extend to strict liability imposed for other forms of liability,²⁶ such as liability for breach of the duty of confidence²⁷ or liability for breach of the statutory prohibition against harassment.²⁸ The scope and/or limits of strict liability for the tort of another need first to be determined before examining the extent to which such strict liability might be extended to forms of liability beyond the law of torts.

II.Existing Terminology

The presence of strict liability for the tort of another is typically indicated by use of the labels ‘vicarious liability’ or ‘liability for breach of a non-delegable duty of care’. Unfortunately, such labels are imprecise and their use has been problematic.

First, the labels used to describe strict liability for the tort of another have not always been limited to describing only strict liability for the tort of another. This is a particular problem in respect of the label ‘liability for breach of a non-delegable duty of care’. Sometimes, the holder of what is currently called a ‘non-delegable duty of care’ is held liable because the holder of the so-called ‘duty’ personally engaged in conduct in respect of the beneficiary of that ‘duty’ which attracts liability in tort. Consider an employee injured as a result of her employer failing to establish a safe system of work. This failure will constitute a breach of the so-called ‘non-delegable duty’ owed by the employer to the employee if it can be shown that a reasonable employer would have installed such a system.²⁹ Liability in this type of situation is imposed because the employer personally engaged in conduct towards an employee which attracts liability in tort and the employee has provided evidence of that conduct.³⁰ Such liability is outside the scope of this book.

Yet the holder of a so-called ‘non-delegable duty of care’ is held liable at other times in circumstances in which...