Vicarious Liability in Tort: A Comparative Perspective

Paula Giliker

CAMBRIDGE
UNIVERSITY PRESS

Table of contents

List of diagrams Table of cases Table of legislation Preface 1 What is vicarious liability? 1.1 Introduction 1.2 Vicarious liability: an historical overview 1.3 The legal basis for vicarious liability 1.3.1 Distinguishing primary from vicarious liability 1.4 Conclusion

page xv xvi xxxiv xli 1 1 6 13 16 18

Establishing a general framework for liability 2.1 Introduction 2.2 Identifying a general framework for liability 2.2.1 Key terminology and codal provisions in English, French and German law 2.2.2 The requirement of a wrongful act 2.2.3 The right to an indemnity 2.2.4 A common law problem: vicarious liability for exemplary damages? 2.3 Liability for the acts of others in other areas of law 2.3.1 Contract law 2.3.2 Company law 2.3.3 Public law 2.3.4 The relevance of French criminal law 2.4 Conclusion

21 21 21 22 27 30 39 43 44 46 50 53 54

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The employer/employee relationship: identifying the contract of employment 3.1 Introduction 3.2 The control test 3.3 Doubts as to the control test 3.3.1 Control and doctors: who is liable for the negligent surgeon? 3.3.2 Response 3.4 Alternative approaches to the control test 3.4.1 A more flexible interpretation of the control test 3.4.2 The organisation and composite tests 3.5 Application of the 'totality of the relationship' test: owner-drivers and bicycle couriers 3.5.1 The owner-driver 3.5.2 The bicycle courier 3.5.3 Distinguishing factors 3.6 Conclusion

55 55 57 60 61 65 66 66 69 73 73 74 75 77

Special difficulties: borrowed employees and temporary workers 4.1 Introduction 4.2 Lending employees: the 'borrowed servant' problem 4.2.1 Dual liability? 4.3 Temporary workers: vicarious liability for casual or agency staff? 4.3.1 Finding liability 4.3.2 A less technical approach? 4.4 Conclusion

81 81 83 89 93 95 97 98

Other relationships giving rise to liability 5.1 Introduction 5.2 Relationships giving rise to vicarious liability beyond the contract of employment: statute 5.3 Relationships giving rise to vicarious liability beyond the contract of employment: case law 5.3.1 Civil law systems 5.3.2 Common law 'relationships': using agency and non-delegable duties to extend strict liability for the torts of others

101 101 103 106 106

108

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X1U

5.4

5.5 5.6

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? 5.4.1 The 'representative agent' 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 An appraisal: a new model to meet contemporary needs? Conclusion

127 127

133 140 143

Acting in the course of one's employment/functions/ assigned tasks: determining the scope of vicarious liability 6.1 Introduction 6.2 Limiting the scope of liability: acting in the course of employment/one's functions/assigned tasks 6.3 Determining the test for 'course of employment', 'les fonctions auxquelles ils les ont employes', 'in Ausfuhrung der Verrichtung' 6.3.1 The significance of policy 6.3.2 Prohibited conduct 6.3.3 The common law test:'course of employment' 6.3.4 Deliberate wrongdoing and the search for a new 'course of employment' test in the common law world 6.3.5 A different test for fraud? 6.3.6 The civil law test: the French example of 'les fonctions auxquelles ils les ont employes' 6.4 Appraisal." what does 'close connection' or 'dans les fonctions' mean? Can a workable definition be found?

145 145 147

150 150 153 157

160 175 181 188

Parental liability for the torts of their children: a new form of vicarious liability? 7.1 Introduction 7.2 Parental responsibility at common law 7.2.1 Parental liability to their child 7.2.2 Parental liability to third parties injured by their child 7.3 Finding a framework for parental responsibility in tort law

196 196 197 198 200 203

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7.4 7.5

7.3.1 Model One: fault-based liability English and German law 7.3.2 Model Two: vicarious or strict liability English, Spanish and French law 7.3.3 Strict liability - French law after 1997 Which model should a legal system utilise? Conclusion: a common law doctrine of strict parental liability?

206 210 213 217 223

Understanding vicarious liability: reconciling policy and principle 8.1 Introduction 8.2 Theoretical justifications for vicarious liability in common and civil law 8.2.1 Fault: culpa in eligendo/in vigilando and the theory of identification 8.2.2 Victim compensation and loss distribution 8.2.3 Risk and deterrence 8.3 Balancing policy objectives: the modern approach to justifying vicarious liability 8.3.1 Prioritising risk: the fair allocation of the consequences of the risk and deterrence 8.3.2 A proportionate response: what is 'fair and just'? 8.3.3 Conclusions 8.4 General conclusion 9 A postscript: a harmonised European law of vicarious liability? 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) 9.1.1 The relationship giving rise to liability: for whom is the employer liable? 9.1.2 'Within the scope of their functions' and 'course of employment or engagement': to what extent is an employer liable? 9.2 Conclusion: practicality and principle

227 227 228 231 234 237 243 245 247 251 252 255

258 259

262 263 267 273

Appendix: Key provisions of the French and German Civil Codes Index