By Anthony Gray
ISBN: 978 1 50992 023 5
Bloomsbury Publishing plc
Hart Studies in Private Law
CASTING A CRITICAL EYE ON VICARIOUS LIABILITY AND CONSIDERING ALTERNATIVES
An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, The Barrister
‘We must always strive to improve the law, ‘ writes Anthony Gray, Professor of law at the University of Southern Queensland, Australia.
In his thoughtful book from Hart Publishing and Bloomsbury, Gray presents a carefully argued examination of the rights and wrongs of vicarious liability — mostly the wrongs, if you follow me.
This, however, is a subject that merits careful consideration with a view to effecting positive change, so it is fair to say that the publication of this book is therefore timely.
‘I believe that the law of vicarious liability and its sister doctrine of non-delegable duties has gone too far’ he writes, pointing out a whole cornucopia of injustices that emanate from the very word ‘vicarious’, which implies (perhaps to oversimplify) that someone is ‘vicariously’ responsible for the wrongdoing of someone else.
Most commonly this situation arises when an employer, (as evidenced by existing case law), can be held legally liable for the actions of an employee who, as Professor Gray points out, ‘did not authorise — and never would have authorised — deliberate criminal wrongdoing; as well as things they (the employer) specifically prohibited an employee from doing.’
Even independent contractors, apparently, may in effect, come under the category of ‘employee’.
The author has therefore taken upon himself the task of explaining how and why the concept of vicarious liability has evolved. To do so he cites several historical factors and, in the process, focusses on three jurisdictions with a common law tradition: The United Kingdom, The United States and Canada.
An enterprise risk theory has developed in all three, he says, ‘which is said to explain and justify the imposition of strict liability upon an employer for the misdeeds of employees regardless of the employer’s personal fault.’
This, specifically, is what Gray has set about to criticise. His overall aim is a positive one, however, which as indicated by the subtitle, is one of reform.
The author has therefore proposed a model which, while no doubt imperfect (as he admits) will at least produce what he considers to be ‘better outcomes than the current state of affairs.’ Readers are therefore encouraged to cast ‘a critical eye on vicarious liability and to consider alternatives’.
As the ongoing debate on vicarious liability rages on — more or less, incessantly — this carefully researched treatise provides a much-needed alternative perspective — a critical eye indeed — on this contentious subject. Corporate lawyers, particularly of the comparative variety will find this book a rather fascinating read.
The date of publication is cited as at 20th September 2018.