The law of vicarious liability is based on considerations of policy, not principle’ Discuss
The law of vicarious liability cannot be said to be based upon any one individual principle, it cannot be said that it is entirely based upon an assessment of policy on a case by case basis, as this would be to suggest that the law is in fact more arbitrary than it actually is. Granted it may be suggested that although we are presented with a number of different justifications and these justifications are sometimes given differing weightings by the judiciary on a case by basis, but I believe that this affords the courts a measure of flexibility in applying the concept of vicarious liability to suit the contours of the multitude of situations which can possible arise. Further I think that it would be detrimental to the law for the courts to define a strict set of principles to be adhered to in a rigid manner as this would result in absurdity and injustice in many situations. I will demonstrate how each individual principle, and indeed a rigid order of principles, would have fails to achieve a satisfactory result, whereby the courts utilisation of policy considerations achieves a more just outcome.
To begin I shall examine the plethora of principles which have been used over the years to justify the law of vicarious liability over the years and show how the law has developed to incorporate them in a looser arrangement than other aspects of the legal system. Firstly there appeared to more of a fault (in the causative sense) based approach to vicarious liability, the maxim of qui facit per alium facit per se seemingly applying. The basic premise was that an employer should be responsible for the actions of a servant or agent who was acting for his benefit, however this concept needs to be woven into other issues such as authority and control of the employee as it is shown by case law, Rose v Plenty, that even if an employee is acting in direct contravention of employers will vicarious liability is incurred. This creates a difficulty in subscribing to such a causative principle as a basis for the liability as it is arguable that by acting in such a manner, and incurring liability against the employer’s wishes, the employee is in fact not acting for the employer’s benefit. On the other hand the difficulty in reading cases along such lines would be where to draw the distinction, as you could just say that any employee committing any tortuous action would no longer be acting for the employers benefit because of the liability he was incurring on their account. However if we pursued this on pure causation grounds you could indeed state that the employer set things in motion, but the difficulty is in justifying why the strict liability should arise, as if there has been clear prohibition against the action in question, or indeed if there were simply implied prohibitions against negligence or other tortuous actions, the employer can be stated as being completely without fault. Thus this principle would not stand on its own legs and would need to be combined with other principles so as to reach a satisfactory justification.
Simply which other principle should be taken into account when deciding a case will depend upon which concept of vicarious liability a person actually subscribes to. There appears to be conflicting explanations as to what the actual functioning of the liability entails: firstly the idea that the employer may himself be committing a tort, that is direct liability rather than vicarious liability, through the actions of his employee appears to have been resoundingly rejected over the years and isn’t really as important in the modern law. The remaining theories seem to focus on whether the employer is liable for the actions of their employee or if he is simply liable for the tort of his employee passed to him so as to be vicarious. The label would suggest the latter however much modern academic commentary, such as Stevens 123 LQR 30, seems to lean towards the former. The effect of this distinction is a difference of weighting between the various supplementary principles which could be used in tandem with the causative principle to justify the imposition of a stricter form of liability upon employers. The principles which would venture most deeply into the realm of policy considerations would most certainly be the economic ones, much has been made of the idea that either employers are in a better situation to deal financially with liability arising from tort then individual employees or, in an development of this line of thinking, that employers are in a position to factor into their course of business the cost of liability and deal with it through pricing and insurance. Although we may argue that this is a policy decision it can be suggested that this is simply a manifestation of the principle that the victim should always be compensated, the loss not lying where it falls. However in the absence of negligence on the part of the party who has incurred liability there is no real distinction between the two parties as to just who should bear such a loss, for example what if the victim is in fact much more affluent then the employer who is vicariously liable? There are many cases, such as Launchbury v Morgans and Hawley v Luminar Leisure Ltd whereby the person or company which actually incurred the loss is unavailable due to default or death whereby we are left in a situation with two innocent parties and a question as to who should bear such a loss, should it be simply based upon financial position? Such questions gave rise to other methods of seeking to assign loss, namely that of control over the actions of the employee in question.
The basis of the control issue has been attacked over the years and has thus had to evolve from its original and outdated manifestation, that of whether the employer had control over how the task in question was to be done, beyond questions of what the overall purpose of the task was. It was stated by Lord Parker CJ in Morren v Swinton and Pendlebury BC  1 WLR 576, that superintendence and control cannot be the decisive test when one is dealing with a professional man.examples have been given in the form of a master of a shipor a professional architectin such cases there can be no question of the employer telling how to do the work. This concept however regained strength from the case of Ready Mixed Concrete Ltd v Minister of Pensions where the three tests of an employee-employer relationship were stated to be (i) the servant agrees that in consideration of a wage or other remuneration he will provide his own work and skill in the performance of some service for his master (ii) he agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master; and (iii) the other provisions of the contract are consistent with its being a contract of service. It is obvious to see from such a summation that the idea of control in itself has been subsumed within a question of contextual analysis based upon the facts of the case however it can still provide an important indication as to the nature of a relationship between the two parties. This proximity, or control, the employer has over the employee can be said to serve as a form of justification in itself in a situation whereby there is no clear indication as to who should bear the loss. If we were to decide between a party who is a victim and a party who, whilst nevertheless faultless, had control over the perpetrator natural justice would suggest it should fall with the latter. This can be seen as a justification in the form of sufficient connection with regards to intentional torts such as Lister v Hesley Hall Ltd, whereby it cannot be argued whatsoever the employer is gaining a benefit from the employee’s actions. This is strictly controlled as a justification however as it is mentioned repeatedly that the test for this is more than simply providing the opportunity to commit the tort, or it occurring upon a certain premises etc, again what must be taken into account is the plethora of surrounding background information.
It is the courts ability to read the differing principles into a complete picture based upon the facts of the case which allows them to assign the loss to where it most comfortably lies rather than reliance upon strict principles. As shown above many of the principles, even in tandem with each other, simply fail to take into account the multitude of different situations which could arise, which is why the law has developed an approach of dealing in policy tempered by some set principles to guide it to the correct decisions.