Vicarious Liability: Critique and Reform

The scope of vicarious liability has expanded to include employers being liable for actions of employees that they did not authorise or never would have authorised. The 'enterprise risk theory' has been adopted to rationalise this imposition, but this book argues that it has many weaknesses and that a more traditional legal doctrine should be used to narrow the circumstances in which an employer is legally liable.

Format: Paperback / softback
Length: 296 pages
Publication date: 25 March 2021
Publisher: Bloomsbury Publishing PLC

Since its inception, the scope of vicarious liability has undergone a substantial expansion. Employers are now held accountable for the actions of their employees, even when those actions were not explicitly authorized or would never have been authorized had they been requested. This liability extends to instances of criminal activity by employees. In the related field of strict liability for non-delegable duties, employers are also held responsible for the misconduct of independent contractors. The concept of strict liability has become increasingly isolated within the realm of tort law, particularly in light of the exponential growth in negligence cases. It requires a rigorous intellectual justification, which has proven elusive and largely unsatisfactory in relation to vicarious liability and non-delegable duty concepts.

The law of three jurisdictions studied has adopted the "enterprise risk theory" to rationalize the imposition of vicarious liability. However, this book offers a critical evaluation of this theory, highlighting its numerous weaknesses that the courts should acknowledge. It suggests that a more traditional legal doctrine can be employed to narrow the circumstances in which an employer is legally liable for the actions of its employees.

The expansion of vicarious liability has raised several important concerns. Employers may face financial burdens and reputational damage even when they have taken reasonable precautions to prevent employee misconduct. This can lead to a disincentive for employers to hire and retain qualified employees, as they may be concerned about the potential liability associated with their actions.

Furthermore, the imposition of vicarious liability can blur the lines between an employee's personal responsibility and the employer's. It can create a situation where an employer is held accountable for the actions of an employee even when the employer had no prior knowledge or control over those actions. This can undermine the principle of individual responsibility and lead to unfair outcomes.

To address these concerns, it is important to consider alternative approaches to liability. One potential solution is to shift the focus from strict liability to a more nuanced approach that takes into account the specific circumstances of each case. This could involve a consideration of factors such as the employer's policies and procedures, the level of supervision and control exercised over the employee, and the employee's own actions and intentions.

Another approach is to limit the scope of vicarious liability to cases where the employer has actively encouraged or condoned the employee's misconduct. This could be achieved through the introduction of a "directing mind" test, which requires the employer to have played a significant role in the employee's actions.

In conclusion, the scope of vicarious liability has significantly expanded since its original conception. Employers are now held liable for the actions of their employees, even when those actions were not explicitly authorized or would never have been authorized had they been requested. The law of three jurisdictions studied has adopted the "enterprise risk theory" to rationalize the imposition of vicarious liability, but this theory has numerous weaknesses that the courts should acknowledge. A more traditional legal doctrine that focuses on the specific circumstances of each case and limits the scope of vicarious liability is a more appropriate approach to address these concerns.

Weight: 452g
Dimension: 154 x 232 x 19 (mm)
ISBN-13: 9781509943876