Aggravated, Exemplary and Restitutionary ... - Law Commission

(1) ‘Vicarious liability’ arguably produces unfairness and gives rise to problems
of justification even in relation to compensatory damages.
(2) In practice the objection that, by permitting vicarious liability, punitive
damages are rendered ineffective, pointless and so unjustified, is not as
strong as it may initially appear. Vicarious liability in respect of punitive
damages may further the aims of such damages. And in some cases such
liability may be the only way of furthering those aims.
(3) The situation of joint and several tortfeasors is materially different from
that of employer-employee joint tortfeasors, so that the unfairness which is
clear in joint and several liability to punitive damages is less clearly present
in cases of vicarious liability.
1.214 We now elaborate these reasons.
(i) The general problem of the ‘justification’ of vicarious liability
1.215 It is notoriously difficult to find a convincing, comprehensive justification of the
doctrine of ‘vicarious liability’. 760
As a result, the ‘unfairness’ objection stated
above is not unique to vicarious liability to awards of punitive damages - a rather
similar objection could be raised even against vicarious liability to compensatory
damages. As P S Atiyah observes:
Vicarious liability is one of the most firmly established legal principles
throughout the common law world, but generations of lawyers have
felt in some uneasy way that there is something so odd or exceptional
about vicarious liability that it needs justification; and they have been
hard put to it to justify the doctrine though almost unanimous in
admitting that it is a laudable and necessary part of the law of torts. 761
Atiyah proceeds to suggest that:
The reasons for this unease are probably two-fold. Vicarious liability
seems at first sight to run counter to two principles of the law of torts,
namely that a person should only be liable for loss or damage caused
by his own acts or omissions, and secondly that a person should only
be liable where he has been at fault. These principles are so deeply
rooted in legal thinking that any departure from them seems at first
sight impossibly unjust. 762
1.216 The objection of ‘unfairness’ to vicarious liability to punitive damages is that
‘innocent’ employers are punished for the wrongful acts of their employees. Yet as
Atiyah recognises, vicarious liability to compensatory awards may also entail that
an employer can be held liable even in circumstances in which he or she has not
been at fault. Accordingly, there is one central similarity: a defendant-employer is
760 For a thorough consideration and criticism of the many different arguments which have
been advanced in support of vicarious liability, see P S Atiyah, Vicarious Liability in the Law
of Torts (1967) Ch 2.
761 P S Atiyah, Vicarious Liability in the Law of Torts (1967) p 12.
762 Ibid.
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