Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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(1) ‘Vicarious liability’ arguably produces unfairness <strong>and</strong> gives rise to problems<br />
of justification even in relation to compensatory damages.<br />
(2) In practice the objection that, by permitting vicarious liability, punitive<br />
damages are rendered ineffective, pointless <strong>and</strong> so unjustified, is not as<br />
strong as it may initially appear. Vicarious liability in respect of punitive<br />
damages may further the aims of such damages. And in some cases such<br />
liability may be the only way of furthering those aims.<br />
(3) The situation of joint <strong>and</strong> several tortfeasors is materially different from<br />
that of employer-employee joint tortfeasors, so that the unfairness which is<br />
clear in joint <strong>and</strong> several liability to punitive damages is less clearly present<br />
in cases of vicarious liability.<br />
1.214 We now elaborate these reasons.<br />
(i) The general problem of the ‘justification’ of vicarious liability<br />
1.215 It is notoriously difficult to find a convincing, comprehensive justification of the<br />
doctrine of ‘vicarious liability’. 760<br />
As a result, the ‘unfairness’ objection stated<br />
above is not unique to vicarious liability to awards of punitive damages - a rather<br />
similar objection could be raised even against vicarious liability to compensatory<br />
damages. As P S Atiyah observes:<br />
Vicarious liability is one of the most firmly established legal principles<br />
throughout the common law world, but generations of lawyers have<br />
felt in some uneasy way that there is something so odd or exceptional<br />
about vicarious liability that it needs justification; <strong>and</strong> they have been<br />
hard put to it to justify the doctrine though almost unanimous in<br />
admitting that it is a laudable <strong>and</strong> necessary part of the law of torts. 761<br />
Atiyah proceeds to suggest that:<br />
The reasons for this unease are probably two-fold. Vicarious liability<br />
seems at first sight to run counter to two principles of the law of torts,<br />
namely that a person should only be liable for loss or damage caused<br />
by his own acts or omissions, <strong>and</strong> secondly that a person should only<br />
be liable where he has been at fault. These principles are so deeply<br />
rooted in legal thinking that any departure from them seems at first<br />
sight impossibly unjust. 762<br />
1.216 The objection of ‘unfairness’ to vicarious liability to punitive damages is that<br />
‘innocent’ employers are punished for the wrongful acts of their employees. Yet as<br />
Atiyah recognises, vicarious liability to compensatory awards may also entail that<br />
an employer can be held liable even in circumstances in which he or she has not<br />
been at fault. Accordingly, there is one central similarity: a defendant-employer is<br />
760 For a thorough consideration <strong>and</strong> criticism of the many different arguments which have<br />
been advanced in support of vicarious liability, see P S Atiyah, Vicarious Liability in the <strong>Law</strong><br />
of Torts (1967) Ch 2.<br />
761 P S Atiyah, Vicarious Liability in the <strong>Law</strong> of Torts (1967) p 12.<br />
762 Ibid.<br />
160