Understanding vicarious liability: reconciling policy and principle

Abstract

Introduction This book has examined the operation of vicarious liability across legal systems. As we have seen, one may identify a common general framework and three basic criteria: a particular relationship, the commission of a tort and some connection between the tort and the relationship in question. Beyond these key criteria a number of variables exist. Should the system be based on strict liability or fault? To what extent may an innocent party, forced to pay compensation to the innocent victim, be able to seek an indemnity from the tortfeasor? How broadly should the relationships giving rise to vicarious liability extend in the light of changing employment conditions? What connection is needed to trigger vicarious liability? Previous chapters have sought to respond to these questions, analysing critically different legislative and judicial responses and assessing the ability of modern legal systems to establish a clear and socially-responsive doctrine of vicarious liability. This chapter has a different aim: to identify the key policy arguments which influence how legal systems apply the doctrine of vicarious liability. The nature of these arguments has altered with time, moving, as we will see, from a basis of fault to that of risk-based liability. The weight given to these rationales serves both to explain the legal responses of each system examined in this book, but also to enable us to critically assess the effectiveness of modern legal systems in responding to contemporary social and economic conditions.