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 by 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 which would serve to narrow the circumstances in which an employer is legally liable for a wrong committed by an employee.
By:
Professor Anthony Gray (Bond University Australia)
Imprint: Hart Publishing
Country of Publication: United Kingdom
Dimensions:
Height: 234mm,
Width: 156mm,
Weight: 417g
ISBN: 9781509943876
ISBN 10: 1509943870
Series: Hart Studies in Private Law
Pages: 296
Publication Date: 25 March 2021
Audience:
College/higher education
,
Primary
Format: Paperback
Publisher's Status: Active
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 Development of the Non-Delegable Duty Concept in the United Kingdom Australian Developments Criticisms of the Concept of a Non-Delegable Duty Conclusion 11. Punitive Damages Punitive or Exemplary Damages Nature of Punitive Damages Reflections on Punitive Damages in the Vicarious Liability Context Conclusion Conclusion to Part III Conclusions
Anthony Gray is Professor of Law at the University of Southern Queensland, Australia.
Reviews for Vicarious Liability: Critique and Reform
Gray is to be praised for this brave attempt to rationalise the law relating to vicarious liability and in presenting, in particular, the arguments for and against enterprise liability in such a clear and accessible manner. --Common Law World Review As the ongoing debate on vicarious liability rages on - more or less, incessantly - this carefully researched treatise provides a much-needed alternative perspective - a critical eye indeed - on this contentious subject. Corporate lawyers, particularly of the comparative variety, will find this book a rather fascinating read. --Elizabeth Robson Taylor and Phillip Taylor MBE, Richmond Green Chambers
