Vicarious Liability or Liability for the Acts of Others in Tort: A Comparative Perspective

Abstract

In this article, the author examines from a comparative perspective the nature of vicarious liability in tort (or liability for the acts of others, to use civilian terminology). She notes a common legal framework, crossing common and civil law boundaries, and focuses on three key questions in determining the scope of this form of strict liability: Should liability be strict or fault-based? Which relationships should give rise to liability and, bearing in mind the disintegration of traditional working patterns, should liability be extended to temporary or agency workers? When should a tort be considered in the ‘course of employment’, dans les fonctions auxquelles ils les ont employés or in Ausführung der Verrichtung? In examining these key questions with reference to case-law from the common law (England and Wales, Canada, Australia) and the civil law (France, Germany), together with examination of the relevant provisions of the Principles of European Tort Law and the Draft Common Frame of Reference, the author argues that a comparative perspective increases our understanding of core principle, and helps us to appreciate the factors which influence legal development, in addition to suggesting possible models for reform.