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Vicarious Liability Critique and Reform

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Vicarious Liability Critique and Reform Vicarious Liability Critique and Reform Anthony Gray HART PUBLISHING Bloomsbury Publishing Plc Kemp House , Chawley Park, Cumnor Hill, Oxford , OX2 9PH , UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © Anthony Gray , 2018 Anthony Gray has asserted his right under the Copyright, Designs and Patents Act 1988 to be identifi ed as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright © . All House of Lords and House of Commons information used in the work is Parliamentary Copyright © . This information is reused under the terms of the Open Government Licence v3.0 ( http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3 ) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/ , 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Gray, Anthony (Law teacher) Title: Vicarious liability : critique and reform / Anthony Gray. Description: Oxford, UK ; Portland, Oregon : Hart Publishing, 2018. | Series: Hart studies in private law; volume 28 | Includes bibliographical references and index. Identifi ers: LCCN 2018018274 (print) | LCCN 2018019805 (ebook) | ISBN 9781509920242 (Epub) | ISBN 9781509920235 (hardback : alk. paper) Subjects: LCSH: Respondeat superior—English-speaking countries. Classifi cation: LCC K962 (ebook) | LCC K962 .G73 2018 (print) | DDC 346/.152103—dc23 LC record available at https://lccn.loc.gov/2018018274 ISBN: HB: 978-1-50992-023-5 ePDF: 978-1-50992-025-9 ePub: 978-1-50992-024-2 Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall To fi nd out more about our authors and books visit www.hartpublishing.co.uk . Here you will fi nd extracts, author information, details of forthcoming events and the option to sign up for our newsletters. 6 Criticisms of Enterprise Risk Theory Like any theory purporting to explain the law, enterprise risk theory must be carefully considered. Criteria by which it must be assessed include its utility in actually explaining the law as it is, its ability to assist in the resolution of future cases, and the extent to which any assumptions it makes are open to challenge or question. It is to a consideration of such issues that this chapter is devoted. I fi rst return to the work of Klemme, discussed at the end of chapter fi ve. Klemme also notes some assumptions, and perhaps some limitations, of the model. It assumes an enterprise is better able to more realistically judge what normal expectations consumers have of how they behave than it is to determine whether a court will fi nd it has met a ‘ reasonable care ’ standard, and it assumes the managers of an enterprise will bear in mind a broader range of possible losses and how they might come about than they would under a negligence standard. And Klemme concedes that the enterprise liability model assumes the ability of the enterprise to be able to calculate the costs of prevention, or insurance, and to cause such costs to be accurately refl ected in its pricing structure. 1 He concedes that if such an organisation is not able to effect such a distribution, the enter- prise liability model may introduce a market distortion. The increase in prices that the organisation imposes may be placed on consumers of other products of that organisation, or others with little or no connection to the organisation at all. This will distort the market for those services, causing the market to demand fewer of those services, and for society to allocate fewer resources to them than would be optimal. 2 Again, Klemme sees congruence between the enterprise liability model and the scope of employment doctrine within the realm of vicarious liability. The con- cept of control is important because it indicates that an employer is in the most 1 H Klemme , ‘ The Enterprise Liability Theory of Torts ’ ( 1976 ) 47 University of Colorado Law Review 153 . See, eg, Bazley v Curry [ 1999 ] 2 SCR 534, 554 (McLachlin J, for the Court); B Feldthusen , ‘ Vicarious Liability for Sexual Torts ’ in N Mullany and A Linden (eds), Torts Tomorrow: A Tribute to John Fleming ( North Ryde , NSW , LBC Information Services , 1998 ) 229 : ‘ all the costs of sexual torts committed in the course of employment would be allocated to a relatively sophisticated party who would take them into account rationally in pricing and output decisions ’ . 2 Klemme, ibid, 188; to like effect A Schwartz , ‘ The Case Against Strict Liability ’ ( 1992 ) 60 Fordham Law Review 819, 834 who claims that enterprises cannot estimate the likely losses to plaintiffs with any degree of accuracy. This compromises the ability of strict liability regimes to induce optimal safety levels. He says the imposition of strict liability may result in sub-optimal, or non-existent supply of valuable products. 124 Criticisms of Enterprise Risk Theory effective preventive position. It also increases the likelihood that the employer can calculate the risks that are part of their enterprise and distribute those costs of prevention or insurance in an economically effi cient manner.3 Calabresi agrees that the scope of employment doctrine is congruent with enterprise risk theory, concluding that costs ‘ not closely associated ’ with an enterprise should not be allocated to it. 4 Others disagree that the scope of employment doctrine is in fact congruent with enterprise risk theory. 5 There is one aspect of the current law of vicarious liability that Klemme says cannot be reconciled with enterprise risk theory. This is the principle that an employer who is vicariously liable for the actions of their employee has an action available against the wrongdoing employee to reclaim those costs, or an indemnity. Klemme says that under a true theory of enterprise risk vicarious liability, such recovery should not be permitted. 6 Calabresi has a similar position, 7 as does Stevens.8 Not everyone believes that enterprise liability is in fact congruent with vicari- ous liability, at least as the principle is currently interpreted and applied. Spafford says that enterprise risk theory goes beyond the employment relationship because it focuses on risk. She says that it does not depend on the degree of control the employer has or may have over the employee, rather the degree of control the employer has over the risk.9 This leads her to conclude that the distinction between employees and independent contractors is no longer viable.10 Others have elaborated upon these weaknesses in the enterprise risk theory. Morris questions the loss distribution argument for the theory, as others have criticised the notion that a goal, or the main goal, of tort law is effi cient loss distri- bution at a more general level.11 He says it is just not possible to make generalised 3 Klemme, ibid, 198. 4 G Calabresi , ‘ S ome Thoughts on Risk Distribution and the Law of Torts ’ ( 1961 ) 70 Yale Law Journal 499, 514 . 5 A Ehrenzweig , ‘ Negligence Without Fault ’ ( 1966 ) 54 California Law Review 1422, 1466 who while discussing enterprise risk states that ‘ the issue is not whether the servant intended to act within his employment, but whether in view of what the servant was actually employed to do, it was probable that he would do what he did, or in other words, whether his harmful conduct was typical for the enterprise in which he was employed ’ . 6 Klemme (n 1) 201. 7 Calabresi (n 4) 544, as does Anne Spafford: A Spafford , ‘ The Enterprise Risk Theory: Redefi ning Vicarious Liability for Intentional Torts ’ ( LLM Thesis , University of Toronto , 2000 ) 88 . 8 R S t e v e n s , Torts and Rights ( Oxford , Oxford University Press , 2007 ) 259 . 9 Spafford (n 7) 18. 10 ibid 54. This is her reading of the Supreme Court of Canada ’ s decisions in Jacobi and Bazley where the ‘ course of employment ’ test was not the focus; instead the closeness of the connection between the conduct and the risk created by the enterprise was paramount: ‘ the activity itself is the focus of liability ’ (72). 11 E W e i n r i b , The Idea of Private Law ( Oxford , Oxford University Press , 2012 ) 75 : ‘ loss-spreading as a tort doctrine is incoherent ’ ; P Cane , The Anatomy of Tort Law ( Oxford , Hart Publishing , 1997 ) 231 : ‘ it is probably true that some people see loss spreading as a function of tort law and seek to use it to that end. The real diffi culty is that tort law is, by reason of its structure, not well-designed to perform this function ’ ; R Merkin and J Steele , Insurance and the Law of Obligations ( Oxford , Oxford University Press , Criticisms of Enterprise Risk Theory 125 statements about the extent to which an organisation is able to distribute any or all of the costs of prevention, deterrence and insurance: [A]ll that can be said is that entrepreneurs probably bear part of it themselves, they spread part of it to their employees, creditors, suppliers and customers, and the members of each of these groups spread it … to those with whom they have important economic relations.
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