Vicarious Liability

11 Key excerpts on "Vicarious Liability"

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  Principles of Tort Law

  • Rachael Mulheron(Author)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  PART IV Miscellaneous 963 18 Vicarious Liability INTRODUCTION §18.1 Vicarious Liability is a legal doctrine whereby a person who is not personally at fault is legally required to bear the burden of another’s tortious wrongdoing. Hence, it is a form of strict liability. Within the last decade, the Supreme Court has made two telling observations: first, vicari-ous liability is ‘on the move’ (per Catholic Child Welfare Socy v Institute of the Brothers of the Christian Schools ( Child Welfare Socy ) 1 ); and second, ‘[t]he risk of an employee misusing his position is one of life’s unavoidable facts’ (per Mohamud v WM Morrison Supermarkets plc 2 ). To that, add the Court of Appeal’s recent observations that employers do not ‘[become] insurers for violent or other tortious acts by their employees’ (per Bellman Northampton Recruitment Ltd 3 ), but that ‘there will indeed be cases of independent contractors where Vicarious Liability will be established’ (per Barclays Bank plc v Various Claimants 4 ). Together, such statements suggest an increasingly complex, unpredictable, and evolving landscape of Tort liability. The word ‘vicarious’ is derived from the Latin vicarius , meaning ‘substitute’. 5 This aptly describes the legal substitution of an innocent party for the wrongdoer. In that respect, the notion of Vicarious Liability ‘is at odds with the general approach of the common law [which is to] … impose liability on the wrongdoer himself’ (per Majrowski v Guy’s and St Thomas’s NHS Trust 6 ). Where Vicarious Liability applies, the wrongdoer is not exculpated from his wrongdoing; strictly speaking, C has the option of suing the wrongdoer or the vicariously liable D, or both – although, from a practical point of view, the vicariously liable D will have the ‘deeper pocket’ with which to satisfy a judgment.

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  Sourcebook on Tort Law 2/e

  • Graham Stephenson(Author)
  • 2012(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  CHAPTER 14 Vicarious Liability INTRODUCTION The doctrine of Vicarious Liability is concerned with the legal responsibility of a person for the torts of another. The most important area in which the principle operates is that of employer and employee where the former is considered liable for the torts of the latter committed during the course of his employment. There are also one or two other areas in which the principle is relevant and these will considered below also, we need to consider, if briefly, the justifications for the imposition of liability in such circumstances as the decision to place responsibility in law on a person, for example, the employer of the acts of an employee, is clearly an illustration of strict liability which is generally something, as we have already seen, the judiciary is reluctant to impose. It is has been said that the doctrine is based on considerations of ‘social convenience and rough justice’ as opposed to any legal principle. 1 Common justifications include the idea that the doctrine represents a response to the development of business organisations as legal organisations in their own right as distinct from the human beings through whom they function. Another view is that the employer who takes the benefit of the activity of the employee must also shoulder the burden when things go wrong, a form of enterprise theory. Further, it is suggested that even if there is no or little benefit to the employer in what the employee has done, the employer has a moral responsibility to any one harmed by the tort of the employee, having placed her in a position whereby she can exploit the third party claimant. None of these are completely satisfactory. The final justification is recognition for the point that often the employee is not worth suing and therefore the employer, having the deepest pocket, is in a better position to meet any claim

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  Emerging Issues in Tort Law

  • Jason W Neyers, Erika Chamberlain, Stephen G.A. Pitel(Authors)
  • 2007(Publication Date)
  • Hart Publishing

    (Publisher)

  15

  Perish Vicarious Liability?

  DAVID R WINGFIELD*

  I. INTRODUCTION

  THIS CHAPTER MAKES a radical suggestion: let us remove Vicarious Liability from the lexicon of the law. By this I do not mean that we remove from the law the ability to make persons other than the direct tortfeasor liable for the harm caused—though some would welcome such a limitation. Rather, I mean simply that we stop using the words ‘Vicarious Liability’ to describe the type of liability that is imposed on this person and describe the nature of the liability by what it really is: strict liability.

  Now, ordinarily a word or two out of the thousands of words that lawyers use to describe legal relations would not seem to be of such significance that it would be worth the effort to debate whether they should be kept or discarded. Yet in this case it does matter. Our philosophy of law is based on the correct application of certain terms of legal art to the mass of events raised by parties so as to bring order to the chaos of the facts and determine the parties’ rights, duties and liabilities. Terms of art serve as a kind of short hand, defining and describing a person’s rights and obligations in particular circumstances.1 Vicarious Liability is one of these terms.

  Vicarious Liability lies at the juncture of fault and no-fault liability. The person who wrongfully commits an act causing harm is understood to be liable because the injury is his ‘fault’ and the person who is held jointly responsible to pay the damages without proof of personal wrongdoing is seen as having ‘no fault’ liability. The direct tortfeasor is liable because it is his wrongful act (or occasionally omission) that has caused the harm for which liability is imposed whereas the person who is vicariously liable is lawfully responsible to pay for the harm even though he did not personally cause the harm, indeed the harm may have been something he tried to prevent. The direct tortfeasor is thus liable because of the close spatial and temporal relationship between his wrongful act and the harmful consequence and the person vicariously liable is liable despite not having committed any wrongful act at all. For this reason, lawyers and judges define Vicarious Liability by reference to the relationship between the person who is directly liable and the one who is (or on whom it is sought to make) indirectly liable.2

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  Private Law and the Value of Choice

  • Emmanuel Voyiakis(Author)
  • 2017(Publication Date)
  • Hart Publishing

    (Publisher)

  To hold me responsible for making repair for the harm you caused simply because I was directing your action would seem to demand too much of me. The basic story also leaves open whether action-direction extends respon-sibility from B to A, or transfers it altogether to A. The typical understanding of Vicarious Liability sees it as having the former effect, in the sense that it allows claimants to turn against either or both of A and B. This view requires some justification. Under standard conceptions of agency, the agent does not become personally bound by the agreements that the agent has entered into in the name of the principal. The principal directs the agent’s action, but it is the principal alone that bears responsibility in the case of non-performance. Vicarious Liability 211 If things should be different when B commits a tort, we need some argument to support the differentiation. Moreover, even if such an argument can be made, we have some reason to doubt whether A and B ought to be jointly and severally liable in all tort contexts. Maybe this makes better sense in the context of the tort of conspiracy than in typical workplace settings. For exam-ple, if the protection principle I proposed in Chapter 4 is correct, employees may reasonably require their employer to protect them against the burden of repair for workplace mistakes. That, in turn, would entail that, unlike the responsibility of co-conspirators, the responsibility of employers will not be additional to that of employees, but exclusive. Broadly speaking, these examples suggest that whether action-direction entails responsibility for A, B or both depends not only on the degree of direc-tion that A exercises over B’s conduct, but also on the context or the purpose for which that direction is exercised.

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  Criminal Law

  • Joel Samaha(Author)
  • 2016(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 255 Vicarious Liability Vicarious Liability Recall that Vicarious Liability refers to liability that is imposed for someone else’s acts. It transfers the actus reus and the mens rea from one person to another person—or from one or more persons to an enterprise—because of their relationship. Most Vicarious Liability involves business relationships, such as employer–employee, manager–corporation, buyer–seller, producer–consumer, and service provider–recipi- ent. But it can also apply to other enterprises, such as the college fraternity (Zeta Chi case excerpt, p. 259), and relationships between individuals, such as making the owner of a car liable for the driver’s traffic violations and holding parents liable for their chil- dren’s crimes. Let’s look first at the vicarious criminal liability of corporations based on their relationships with those employed by the corporation. Corporate Liability Did you ever expect a corporation to have a conscience when it has no soul to be damned, and no body to be kicked? —Lord Chancellor Edward Thurlow (1731–1806, qtd. in Weismann 2009) Since a corporation acts by its officers and agents, their purposes, motives, and intent are just as much those of the corporation as are the things done. If, for example, the invisible, intangible essence or air which we term a corporation can level mountains, fill up valleys, lay down iron tracks, and run railroad cars on them, it can intend to do it, and can act therein as well viciously as virtuously. —New York Central & Hudson River Railroad Company v. U.S. (1909) Now let’s discuss the history of corporate liability and the effects of making a corpo- ration an “artificial being” that can commit crimes and be held responsible for those committed by employees.

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  Tort Law

  • Sue Hodge(Author)
  • 2004(Publication Date)
  • Willan

    (Publisher)

  8   Vicarious Liability for the acts of others Employees

  For centuries employers have been liable for the wrongdoing of employees. Among the reasons given for this rule is the undoubted fact that the purpose of employment is to allow the employer to profit from the employee’s work. The ethical principle of justice would support the argument that as employers take the profit, so the risk should belong to them. In theory at least, the employers are in a better position to bear the risk especially as insurance is available, the costs being included in the calculation of prices and therefore paid ultimately by the customers, whereas an individual might find personal liability insurance only available at a prohibitive cost.

  It can also be argued that even without insurance, employers are in a better financial position than their employees to meet claims. A claimant might find that although an action against an employee is successful, the employee is a ‘man of straw’ – in other words, the employee has no resources from which a judgment can be met except a salary which would generally mean payment by small instalments.

  Another reason for employers bearing liability is that the employer has the responsibility for choosing and appointing the employee. It is up to the employer to make sure that the employee has relevant qualifications, is competent and carries out the job in a satisfactory manner. Employers have the right to tell an employee not only what is to be done, but also how it is to be done and to take disciplinary measures against an employee who breaks the rules. The doctrine of Vicarious Liability reinforces the employers’ obligation to ensure that employees work in a lawful way.

  As will be seen, the doctrine gives rise to what employers would certainly think of as injustice. An employer can be liable for an employee’s act even though the employee has broken an express rule of the business and the employer has taken all possible steps to guard against such occurrence.

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  Delict Essentials

  • Francis McManus(Author)
  • 2017(Publication Date)
  • EUP

    (Publisher)

  Also, in certain cases, as we shall see below, an employer can be sued for assaults which are perpetrated by employees who act as security staff. Vicarious Liability is of importance from a practical, as well as an academic viewpoint, in that, generally, pursuers are inclined to sue only those who are able to compensate them. For example, if I am negligently knocked over by an army private who is driving a military vehicle, it is preferable that I should sue the Crown which has much more money, of course, has much more money than the person who actually injured me. Similarly, if I am defamed in the column of a newspaper, it would be more prudent to sue the relevant newspaper proprietor rather than the journalist concerned. Not for distribution or resale. For personal use only. 120 DELICT ESSENTIALS It must be stressed that the law imposes Vicarious Liability on an employer simply by reason of his status, or relationship, with the person who inflicted the relevant harm. There is no requirement that the employer himself be negligent, in any way, for the relevant delict. EMPLOYER’S Vicarious Liability IN DELICT An employer is vicariously liable for the delicts of his employee if the delicts are committed within the scope of the latter’s employment. However, the employer is not normally liable for the delictual conduct of an independent contractor . This concept was well ingrained in Scots law by the early 19th century: see, for example, Baird v Hamilton (1826). Employee or independent contractor? We must, therefore, at the outset, ascertain whether the person who actually harmed the pursuer is either an employee or an independent contractor. An employee is employed under a contract of service, whereas an independent contractor is employed under a contract for services. Often it is easy to recognise a contract of service when one sees it. However, it is difficult to say wherein the distinction lies between a contract of service and a contract for services.

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  Liability of Corporate Groups and Networks

  • Christian A. Witting(Author)
  • 2018(Publication Date)
  • Cambridge University Press

    (Publisher)

  It is fairer to allocate risks of losses thus arising to the businesses than leave those wronged with the sole remedy, of doubtful value, against the individual employees.’ 10 1 E v. English Province of Our Lady of Charity [2013] QB 722, [70]. 2 But see discussion of breach of the non-delegable duty in what follows. 3 Cox v. Ministry of Justice [2016] AC 660, [23]. 4 Adopted in Lister v. Hesley Hall Ltd [2002] 1 AC 215. 5 Lister v. Hesley Hall Ltd [2002] 1 AC 215, [79]. 6 E.g., Hawley v. Luminar Leisure Ltd [2006] PIQR P17. 7 Mohamud v. Wm Morrison Supermarkets plc [2016] AC 677, [44]–[45]; Various Claimants v. Catholic Child Welfare Society [2013] 2 AC 1, [88]; C. Witting, Street on Torts (14th edn., 2015), pp. 632 and 638–9. Having said as much, there seems no escaping a certain amount of circularity in the statement of this sub-test. 8 E.g., Mattis v. Pollock [2003] 1 WLR 2158; Lister v. Hesley Hall Ltd [2002] 1 AC 215; New South Wales v. Lepore (2003) 77 ALJR 558; Bazley v. Curry [1999] 2 SCR 534. 9 E.g., Canadian Pacific Railway Company v. Lockhart [1942] AC 591; Rose v. Plenty [1976] 1 All ER 97. 10 [2003] 2 AC 366, [22], affirmed in Mohamud v. Wm Morrison Supermarkets plc [2016] AC 677, [44]. 12.2 Vicarious Liability 397 When the conditions for Vicarious Liability are satisfied, the employer is made jointly liable for the commission of the tort. This means that recovery can be had from either the employer or the employee – and the employer might be able to exercise rights of contribution (or indemnity) against the employee. The UK rules of Vicarious Liability have been expanded in two ways, so as to open up the possibility of a ‘corporate group Vicarious Liability’. First, courts have permitted findings of ‘dual Vicarious Liability’ in cases of work- ers who undertake tasks for more than one ‘employer’, so long as the usual criteria of employment are satisfied. This entails the Vicarious Liability of both employers for the torts of the same employee.

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  The Foundations of Sovereignty (Works of Harold J. Laski)

  And Other Essays

  • Harold J. Laski(Author)
  • 2014(Publication Date)
  • Taylor & Francis

    (Publisher)

  Op cit . p. 69 ff.

  114 Cf. Gierke, Die Genossenschafts Theories und die Deutsche Rechtsprechung, 801–3, and especially Loening, Die Haftung das Staates, p. 89. See also Pollock, op. cit . at p. 127.

  The enforcement of such Vicarious Liability is more urgent for another reason. The dissolution of individual business enterprise into the corporation system has tended to harden the conditions of commercial life. The impersonality of a company employing say five thousand men is perhaps inevitable; but in its methods of operation, it tends to be less careful of human life, more socially wasteful than the individual has been.115 But its consequences to society are equally momentous, and we dare not judge it differently.116 It is necessary, for instance, to see to it that we have pure food and unadulterated milk, and it can make no difference to us whether the offender against our requirements be individual or corporate.117 It is only by enforcing Vicarious Liability that we can hope to make effective those labor laws intended to promote the welfare of the workers;118 for it is too frequently the corporation that evades the statute or attempts to discredit it.119 It is useless to argue that the responsibility rests upon the agent; for it is unfortunately too clear that men may act very differently in their institutional relations than in their ordinary mode of life.120 The London Dock strike of 1911 suggested that a man who in his domestic capacity will display all the most amiable sentiments of an average retired grocer will, when acting for a great dock company, show himself immovable and unrelenting. But if he injure society in his activities it is surely clear that means must be at hand to render his principal responsible. That, at any rate, was the basis of the great judgment of Farwell, J., in the Taff Vale case.121 No one supposes that trade union officials will commit torts unless there are trade unions for which to commit them. There may be special reasons for taking the trade unions outside the ordinary law,122 but that is not to say that the acts would not otherwise be corporately tortious in character. No one can deny, for example, the reality of those entities we call England and Germany. Not only do they act, but persons act on their behalf. It seems then socially necessary to make them bear the burden of a policy for which they are at bottom responsible.123

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  Cartels, Markets and Crime

  A Normative Justification for the Criminalisation of Economic Collusion

  • Bruce Wardhaugh(Author)
  • 2014(Publication Date)
  • Cambridge University Press

    (Publisher)

  16 See, e.g., the investigation of the capsize of the MV Herald of Free Enterprise (n. 45 below). 17 See Motta, Competition Policy, 47. 56 responsibility, agency and Vicarious Liability such rules, all of which are found as principles of corporate liability in common law jurisdictions: * identification, i.e. the so-called Tesco rule; * aggregation, in effect the summing up of the mental elements and activities of corporate employees and imputing this sum as the responsibility of the company; * corporate fault and/or ‘corporate culture’, i.e. examining the corpo- rate ethos and imputing liability if there was an attitude in the relevant corporate culture which condoned the relevant act; and, * Vicarious Liability, i.e. imputing the wrongful act of a corporate employee to the corporation as a whole. Each of these attribution rules will provide different incentives for corporate monitoring of managerial and employee behaviour. The rules of Vicarious Liability and aggregation provide a stronger incentive for more detailed monitoring of employee behaviour than the Tesco rule of identification. Corporate culture rules likely provide an incentive for an intermediate level of managerial and employee monitoring, but – as we will see below – may create a perverse incentive in expenditure on litigation costs, rather than compliance. English criminal law is heavily reliant on the first of the above men- tioned rules. In the next section, it is shown that this reliance is based on a historical mistake. It is further argued that this mistake is compounded by the ineffective nature that this rule has in aligning and controlling the divergent interests found in the modern corporation.

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  A Modern View of The Criminal Law

  Pergamon Modern Legal Outlines

  • S. W. Stewart, W. A. J. Farndale(Authors)
  • 2016(Publication Date)
  • Pergamon

    (Publisher)

  It is therefore possible for a corporation to be held criminally liable (a) through the doctrine of Vicarious Liability in circum-stances where this is recognized with respect to natural persons, 1 and (b) by virtue of its individuality. The second liability must, of course, be subject to limitations imposed because of the unnatural personality of the association. It can neither appear in court in person nor can it be convicted of a crime which can only be punished by death (where it applies) or imprisonment, or which involves an act of true human volition such as bigamy or rape. The first difficulty was resolved by s. 33, Criminal Justice Act, 1925, which provides that a corporation can appear and plead in a criminal court through a representative. The second objection was almost completely overcome by s. 13, Criminal Justice Act, 1948, which allows a court to impose a fine in lieu of imprisonment where the sanction attached to the offence is not one fixed by law. Most offences, excluding, of course, murder, can therefore be punished by fine, and consequently corporations become liable to this extent. 1 See Chap. 7, p. 65. Liability According to Status 75 The case of D.P.P. v. Kent and Sussex Contractors Ltd., 1944, 1 was the first in which it was decided that a corporation could be convicted of an offence committed by one of its employees where the circumstances were such as would render a natural person liable. The acts were attributed to the corporation as a person-ality and not through Vicarious Liability. The company was charged with offences which under a Defence of the Realm Regulation required an intention to deceive. The magistrates' court held that the servant of the company responsible for the act had the necessary mens rea but that this could not be imputed to his employer.

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