Fri, 8 Oct 2004 18:06:16 +0100
Vicarious liability for intentional torts
me uninspired, but I must admit that I've never been convinced that
or any subsequent case would have been decided differently under
the old Salmond test of whether the tortfeasor was doing what he
was hired to do. Take Lister. Well before that case it
was clear that if my employee is employed to look after your coat
and steals it he will make me liable (Morris v Martin).
Is there any real difference between that and the case where my
employee is employed to look after a boy and takes the opportunity
to brutalise him? I can't see it. Or Bernard:
policemen are always in a sense on duty, and when one of them demands
use of a telephone qua policeman, surely it's not difficult to say
he's acting in the course of his employment, just like an off-duty
constable who shows his warrant card, and then arrests and beats
up an innocent citizen. And again with Mattis,
though this went the other way. When the court stressed the break
between the bouncer's doorkeeping activities and his stabbing of
the claimant, isn't this really the same thing as saying the stabbing
wasn't malpractice in the course of doorkeeping?
ca change, plus c'est la meme chose?
Original Message From "Robert Stevens"
a matter of principle, without a clear articulation of the principle
underlying vicarious liability it is difficult to know where to
draw the line between acts within and without the course of employment.
suppose that the significance of Bernard
v Attorney General of Jamaica and the earlier decision
of the English Court of Appeal in Mattis
v Pollock is that they kill off the notion that Lister
v Hesley Hall is based upon a voluntary assumption of responsibility.
Lister, Lord Hobhouse spoke of a class of case "where the
employer, by reason of assuming a relationship to the plaintiff,
owes to the plaintiff duties which are more extensive than those
owed by the public at large ... The classes of persons or institutions
that are in this type of special relationship to another human being
include schools, prisons, hospitals and even, in relation to their
visitors, occupiers of land. They are liable if they themselves
fail to perform the duty which they consequently owe. If they entrust
the performance of that duty to an employee and that employee fails
to perform the duty, they are still liable." (at para 54-55). In
Bernard and Mattis there was no such assumption
of responsibility by the employer to the claimant.
courts have now abandoned the classic formulation from Salmond "A
master is not responsible for a wrongful act done by his servant
unless it is done in the course of his employment. It is deemed
to be so done if it is either (1) a wrongful act authorised by the
master, or (2) a wrongful and unauthorised mode of doing some act
authorised by the master". The new test adopted from Bazley
v Curry is: "whether there is a connection or nexus between
the employment enterprise and that wrong that justifies imposition
of vicarious liability on the employer for the wrong, in terms of
fair allocation of the consequences of the risk and/or deterrence."
new test seems to me to be so vague as to be almost unworkable.
What is a 'fair' allocation of risk? What additional deterrence
impact is there in holding the employer liable not just for carelessness
but where there is no fault on the employer's part? (Compare Attorney
General v Hartwell  UKPC 12).
Bracton Professor of Law, University of Exeter, England
University of Exeter
Exeter EX4 4RJ
01392-263189 (int +44-1392-263189)
Fax: 01392-263196 (int +44-1392-263196)
Cellphone: 07729-266200 (int +44-7729-266200)
University of Exeter
Exeter EX4 4RJ
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