Vicarious liability as risk-through-placing

Abstract

The common law on vicarious liability is unsatisfactory because the doctrine is couched at such a high level of generality that it cannot yield predictable results when applied to a given fact situation. This paper is an attempt to inject some precision into the doctrine. It examines and rejects three justifications for the doctrine: effective compensation/risk spreading, deterrence and certain theories related to quid pro quo. It then proposes the most suitable justification for the doctrine: vicarious liability is imposed because and when the defendant, by placing the tortfeasor in the position in its organisation that it did with that position's accompanying privileges and demands, had created or significantly enhanced the risk of the claimant’s injury. Three implications follow from this justification: (1) there is no vicarious liability for the wrongful acts of independent contractors; (2) agency reasoning should be rejected; and (3) we should stop using the phrase ‘enterprise-risk approach’.