Chapter 20 Pointers to 'pause for reflection' and 'counterpoint' boxes

Vicarious Liability

Page 610

Thinking about whether the imposition of vicarious liability is fair on employers raises fundamental questions about the basis of tort law. The argument is that if we see vicarious liability as simply giving effect to policies of loss-spreading and ensuring that the risks involved in a particular form of activity are borne by its participants then this would seem to have far-reaching consequences for the nature and scope of tort law. So if, in the context of employment based injuries, it is enough to justify liability that the employer is best positioned to bear the loss, irrespective of whether they caused or were to blame for the harm, the same argument should in principle apply elsewhere. If so, we would have to question the role of culpability and causation in tort more generally. It is for this reason that some academics have sought to explain vicarious liability on other grounds (see pause for reflection and counterpoint boxes in section 20.1).

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