Vicarious liability in tort : a comparative perspective / Paula Giliker.
2010
K962 .G55 2010 (Map It)
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Details
Author
Title
Vicarious liability in tort : a comparative perspective / Paula Giliker.
Published
Cambridge, UK ; New York : Cambridge University Press, 2010.
Call Number
K962 .G55 2010
ISBN
9780521763370 (hardback)
0521763371 (hardback)
9780511909764 (electronic bk.)
0511909764 (electronic bk.)
0521763371 (hardback)
9780511909764 (electronic bk.)
0511909764 (electronic bk.)
Description
xliii, 280 pages ; 24 cm.
System Control No.
(OCoLC)614987640
Summary
"Vicarious liability is controversial: a principle of strict liability in an area dominated by fault-based liability. By making an innocent party pay compensation for the torts of another, it can also appear unjust. Yet it is a principle found in all Western legal systems, be they civil law or common law. Despite uncertainty as to its justifications, it is accepted as necessary. In our modern global economy, we are unlikely to understand its meaning and rationale through study of one legal system alone. Using her considerable experience as a comparative tort lawyer, Paula Giliker examines the principle of vicarious liability (or, to a civil lawyer, liability for the acts of others) in England and Wales, Australia, Canada, France and Germany, and with reference to legal systems in countries such as the United States, New Zealand and Spain"--Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Szladits Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Szladits Fund
Table of Contents
List of diagrams
xv
Table of cases
xvi
Table of legislation
xxxiv
Preface
xli
1.
What is vicarious liability?
1
1.1.
Introduction
1
1.2.
Vicarious liability: an historical overview
6
1.3.
The legal basis for vicarious liability
13
1.3.1.
Distinguishing primary from vicarious liability
16
1.4.
Conclusion
18
2.
Establishing a general framework for liability
21
2.1.
Introduction
21
2.2.
Identifying a general framework for liability
21
2.2.1.
Key terminology and codal provisions in English, French and German law
22
2.2.2.
The requirement of a wrongful act
27
2.2.3.
The right to an indemnity
30
2.2.4.
A common law problem: vicarious liability for exemplary damages?
39
2.3.
Liability for the acts of others in other areas of law
43
2.3.1.
Contract law
44
2.3.2.
Company law
46
2.3.3.
Public law
50
2.3.4.
The relevance of French criminal law
53
2.4.
Conclusion
54
3.
The employer/employee relationship: identifying the contract of employment
55
3.1.
Introduction
55
3.2.
The control test
57
3.3.
Doubts as to the control test
60
3.3.1.
Control and doctors: who is liable for the negligent surgeon?
61
3.3.2.
Response
65
3.4.
Alternative approaches to the control test
66
3.4.1.
A more flexible interpretation of the control test
66
3.4.2.
The organisation and composite tests
69
3.5.
Application of the `totality of the relationship' test: owner-drivers and bicycle couriers
73
3.5.1.
The owner-driver
73
3.5.2.
The bicycle courier
74
3.5.3.
Distinguishing factors
75
3.6.
Conclusion
77
4.
Special difficulties: borrowed employees and temporary workers
81
4.1.
Introduction
81
4.2.
Lending employees: the `borrowed servant' problem
83
4.2.1.
Dual liability?
89
4.3.
Temporary workers: vicarious liability for casual or agency staff?
93
4.3.1.
Finding liability
95
4.3.2.
A less technical approach?
97
4.4.
Conclusion
98
5.
Other relationships giving rise to liability
101
5.1.
Introduction
101
5.2.
Relationships giving rise to vicarious liability beyond the contract of employment: statute
103
5.3.
Relationships giving rise to vicarious liability beyond the contract of employment: case law
106
5.3.1.
Civil law systems
106
5.3.2.
Common law `relationships': using agency and non-delegable duties to extend strict liability for the torts of others
108
5.4.
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?
127
5.4.1.
The `representative agent'
127
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
133
5.5.
An appraisal: a new model to meet contemporary needs?
140
5.6.
Conclusion
143
6.
Acting in the course of one's employment/functions/ assigned tasks: determining the scope of vicarious liability
145
6.1.
Introduction
145
6.2.
Limiting the scope of liability: acting in the course of employment/one's functions/assigned tasks
147
6.3.
Determining the test for `course of employment','les fonctions auxquelles ils les ont employes', `in Ausfuhrung der Verrichtung'
150
6.3.1.
The significance of policy
150
6.3.2.
Prohibited conduct
153
6.3.3.
The common law test: `course of employment'
157
6.3.4.
Deliberate wrongdoing and the search for a new `course of employment' test in the common law world
160
6.3.5.
A different test for fraud?
175
6.3.6.
The civil law test: the French example of `les fonctions auxquelles ils les ont employes'
181
6.4.
Appraisal: what does `close connection' or `dans les fonctions' mean? Can a workable definition be found?
188
7.
Parental liability for the torts of their children: a new form of vicarious liability?
196
7.1.
Introduction
196
7.2.
Parental responsibility at common law
197
7.2.1.
Parental liability to their child
198
7.2.2.
Parental liability to third parties injured by their child
200
7.3.
Finding a framework for parental responsibility in tort law
203
7.3.1.
Model One: fault-based liability - English and German law
206
7.3.2.
Model Two: vicarious or strict liability - English, Spanish and French law
210
7.3.3.
Strict liabiliy - French law after 1997
213
7.4.
Which model should a legal system utilise?
217
7.5.
Conclusion: a common law doctrine of strict parental liability?
223
8.
Understanding vicarious liability: reconciling policy and principle
227
8.1.
Introduction
227
8.2.
Theoretical justifications for vicarious liability in common and civil law
228
8.2.1.
Fault: culpa in eligendo/in vigilando and the theory of identification
231
8.2.2.
Victim compensation and loss distribution
234
8.2.3.
Risk and deterrence
237
8.3.
Balancing policy objectives: the modern approach to justifying vicarious liability
243
8.3.1.
Prioritising risk: the fair allocation of the consequences of the risk and deterrence
245
8.3.2.
A proportionate response: what is `fair and just'?
247
8.3.3.
Conclusions
251
8.4.
General conclusion
252
9.
A postscript: a harmonised European law of vicarious liability?
255
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)
258
9.1.1.
The relationship giving rise to liability: for whom is the employer liable?
259
9.1.2.
`Within the scope of their functions' and `course of employment or engagement': to what extent is an employer liable?
262
9.2.
Conclusion: practicality and principle
263
Appendix: Key provisions of the French and German Civil Codes
267
Index
273