A Pluralist View of Vicarious Liability in Tort

Abstract

Much writing on English vicarious liability has been devoted to exploring the theoretical underpinnings of this tort doctrine. A wide variety of justifications has been put forward in academic and judicial reasoning, but there is strong disagreement as to what these justifications are or should be. The tendency, particularly among legal scholars, is to adopt a monist approach and to think that it is possible, and perhaps even desirable, to justify vicarious liability by reference to a single idea, goal, or value. Under the monist approach, each justification on offer is scrutinized with the expectation that, to be convincing, it should be able to account for all or most of the features of the law of vicarious liability. As none of the rationales on offer can do so, the result is that vicarious liability is seen as having no “rational justification”. This article challenges such conclusion and argues that English vicarious liability has a sound theoretical basis. This cannot be identified in a stand-alone rationale, but rather in a mixture of goals, or functions, which are reflected in its constituent elements and which are the object of significant choices and trade-offs. The article suggests that, to bring these goals to light, it is necessary to disaggregate the law of vicarious liability into its constituent elements and to analyze the goals and functions that characterize each of them. These elements are the relationship between defendant and tortfeasor, the commission of a tort, the requirement that there must be a sufficiently close connection between the tort and the relationship, and the defendant’s indemnity right to recover from the tortfeasor the sum paid to the claimant on account of the tort committed. The main focus of this article is on the element of the relationship between the defendant and the tortfeasor, which on its own constitutes a sufficiently complex field of inquiry. This element of vicarious liability is looked at from the perspective of the goals which appear to be most central to, and clearly furthered by, the element itself, including the compensation and spreading of losses, the avoidance of accidents, and the promotion of ethical norms of responsibility. By carrying out this analysis, the article explains how vicarious liability furthers all such goals and elucidates the choices and trade-offs among them as reflected in the distinct rules characterizing the relationship element. In particular, it is shown how all the choices made within this element as to the allocation of losses and liabilities represent different points of equilibrium among the goals mentioned above, and that English law reflects a particular balance among conflicting goals. Overall, the article seeks to offer a fresh and robust pluralist view of vicarious liability which advances our understanding of this doctrine better than single-minded approaches, and which can pave the way towards an increased attention for pluralism as an interpretive key to the law of vicarious liability.

Keywords: vicarious liability; tort; strict liability; justifications; pluralism; monism

JEL Classification: K13