Q&A Torts by Kotecha Birju

Author:Kotecha, Birju
Language: eng
Format: epub
ISBN: 978-1-317-67372-9
Publisher: Taylor & Francis (CAM)

Answer Structure

Up for Debate

Vicarious liability poses some fascinating conceptual, doctrinal and policy based questions. It is important to note that it is not an independent tort in itself but a mode of liability which leaves the employer liable for the tortious conduct of an employee. It is often justified due to the presence of insurance and that it would deter future harm by putting greater responsibility on the employer to improve standards, supervision or the training of employees. For a thorough critical overview, considering both the relationship with other aspects of employer’s liability such as the non-delegable duty of care, and the policy underpinnings of vicarious liability see C McIvor, ‘The use and abuse of the doctrine of vicarious liability’ (2006) 35 Common Law World Review 268. Other sources of difficulty originate from the difficulties posed in establishing an employer–employee relationship, see for example E McKendrick, ‘Vicarious liability and independent contractors: a re-examination’ (1990) 53 MLR 770, and for an overview of the conceptual problems with the stretching of this requirement see P Morgan, ‘Recasting vicarious liability’ (2012) 71(3) Cambridge Law Journal 615. Similarly the other significant challenge has been in the interpretation of course of employment, and on this see P Giliker, ‘Rough justice in an unjust world’ (2002) 65 Modern Law Review 269 and ‘Lister revisited: vicarious liability, distributive justice and course of employment’ (2010) 126 Law Quarterly Review 521. Finally an interesting and recent judicial perspective on vicarious liability can be found in an article by the recently retired Lord Hope, ‘Tailoring the law on vicarious liability’ (2013) 129 Law Quarterly Review 514.

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