WRITING THE ASSESSED ESSAY
(Individual Project): What legal and ethical justifications for the doctrine of vicarious liability can you identify? How many are appropriate in the modern world?
For example: you can write those justifications and add more:
- Enterprise liability
- Control theory
- The deep pocket argument
- Creation of risks
The Disadvantages of vicarious liability.
- Increase costs and burdens to the legal system
- Lack of fairness to the well-meaning principle.
- Justifying vicarious liability Today
The doctrine of vicarious liability lies at the heart of all civil and law systems of tort law. It represents not a tort, but a rule of responsibility which renders the defendant liable for the torts committed by another. The classic case is that of employer and employee: the employer is rendered strictly liable for the torts of his employees, provided that they are committed in the course of the tortfeasor’s employment. In such cases, liability is imposed on the employer, not because of his own wrongful act, but due to his relationship with the tortfeasor. The claimant is thus presented with two potential defendants: the individual tortfeasor and a third party, likely to be with means and/or insured and usually clearly identifiable in circumstances where it may be difficult to identify the actual culprit in question.
Any study of vicarious liability cannot therefore avoid consideration of its role in determining who ultimately bears the burden of paying compensation. For example, in the UAE, vicarious civil liability is set out in Article 313.1.b of the Civil Code as follows:
“(1) No person shall be liable for the act of another person, but nevertheless the judge may, upon the application of an injured party and in the event that in his opinion there is justification for taking that course, render any of the following persons liable as the case may be to satisfy any amount awarded against a person who has caused the harm:…(b) any person who has actual control, by way of supervision and direction, over a person who has caused the damage, notwithstanding that he may not have had a free choice, if the act causing harm was committed by a person subordinate to him in or by reason of the execution of his duty.
(2) Any person obliged to make good may have recourse against the person against whom the original award was made.
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