Date: Tue, 11 Oct 2005 20:18:02 +0100

From: Two employers

Subject: Andrew Tettenborn

Can't we draw a distinction between children and employees here?

Isn't the basis of vicarious liability not simply control (incidentally, try and tell my children that I control them: but that's beside the point) but in addition the fact that someone is doing a job for you? That's why, if I get a friend to ferry my car somewhere as a favour I'm liable for his bad driving (Ormerod v Crosville), but I wouldn't be liable simply because I lent him my car (Launchbury v Morgans). On the child front, I'm not generally liable for the torts of my brats: but it might possibly be different if I sent one of them on an errand and he carelessly upended an old lady into the road en route.

Andrew

>===== Original Message From Robert Stevens =====

The problem with vicarious liability is that without an accepted explanation for its doctrinal basis, trying to articulate its proper boundaries is extremely difficult.

If the Court of Appeal are to be believed, a defendant can be vicariously liable for the acts of someone with whom he has no contract on the basis that he "was entitled to exercise control over the relevant act or operation."

If this is correct, why was it relevant that the individual who was careless had a contract of service with a third party? The logic of the Court of Appeal's position seems to be that whenever I exercise sufficient control over someone else I am liable for his acts even though I am not personally careless. If correct, parents should be vicariously liable for the acts of their children. (Of course, in some jurisdictions they are).

My initial reaction is that it is wrong.

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

Tel: 01392-263189 (int +44-1392-263189)
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