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Vicarious Liability-Is It Fair? A Bethelmy ABSTRACT We are now well into the 21st^ century and the practice of medicine is almost unrecognizable from what it was a generation ago. New drugs, new surgical techniques, and new genetic technologies that aid in the diagnosis and treatment of disease are the order of the day. However, this evolving practice of medicine has been matched by a rapidly growing awareness of patient’s rights and the responsibilities of the current generation of medical practitioners towards their patients. As a result of this, the medico legal environment in the Caribbean is becoming increasingly litigious as patients are becoming more concerned about, and more educated to, their rights. This is in large part due to increasing familiarity and exposure to the Internet, as well as American cable television. Cases of medical malpractice are becoming more common in Trinidad, Jamaica, and Barbados, and it is against this backdrop that the doctrine of vicarious liability in the Caribbean requires urgent reexamination. Keywords : Liability, vicarious, medical law
From: Dr A Bethelmy, Petroleum Company of Trinidad and Tobago, Point Fortin Trinidad and Tobago. Correspondence: Dr A Bethelmy, Petroleum Company of Trinidad and Tobago, Point Fortin Trinidad and Tobago. Email: [email protected]
West Indian Med J DOI: 10.7727/wimj.2016.
Vicarious Liability
INTRODUCTION The doctrine of vicarious liability is not a new invention. Indeed, it has been in existence since the 17th^ century. In Boson vs Sandford in 1691, Chief Justice Holt famously remarked that “for whoever employs another is answerable for him, and undertakes for his care to all that make use of him.”(1) While its aims remain laudable even in modern day society, it is a policy that runs counter to the basic principle of tort law i.e. that a person should only be held accountable for the wrongs that he/she commits against another. The law normally imposes liability on the wrongdoer himself. Vicarious liability on the other hand renders a defendant liable for the misconduct of another party. The seminal example is that between employer and employee. Here the employer is liable for the torts of his employees, provided that they have been committed in the course of the employee’s employment. Any claimant thus has two potential defendants; the individual who has committed the harm, and his employer. It is precisely because the concept of vicarious liability runs against the grain that an inherent tension in existing law is produced when decisions are to be made. A lack of understanding, even amongst the judiciary, has contributed to a variety of mixed results in recent years (2). The extension of the doctrine in these cases, which in some has led to the imposition of liability on faultless defendants for acts by those for whom they are held responsible, has led many to question just how fair it is to make innocent parties bear the burden of harm caused by miscreants whose behavior they strongly abhor.
History The common law development of vicarious liability can be traced to early medieval times, and the concept of the master and servant (or craftsman and apprentice). Here the master, as
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misconduct.(3) Australia has gone a step further by putting this agreement into statutory form.(4) Equally, in the United States, all government employees acting within the scope of their employment are protected from any personal liability (5).
Tests used to identify the employer/employee relationship The control test In examining the validity of the employer/employee relationship and whether it gives rise to vicarious liability, the starting point has generally been one of control and the ability to exert authority over the employee.(6) The archetypal employment relationship was therefore one where the employer could control the employee’s work, instruct him what work to undertake and how it should be performed. The appeal of the control test lies in its dual role; it determines for whom the defendant will be liable and why. The test has been seen not only as one of the existence of the conditions for liability, but as a justification for imposing it (7). However, by the latter half of the twentieth century changes in employment practices, increasing use of technology, and the rise of the professional have served to render the test less useful, except in straightforward cases. Doctors frequently work without direct supervision, and would not be expect to be told what to do and how to do it every working day. The control test therefore needed to be reappraised in its relation to modern employment practices.
The totality of the employment relationship test The common law has gradually moved towards a multi-faceted approach, where it is recognized that the concept of control is no longer absolute, but represents one factor out of many in determining whether a contract of employment exists. Other factors may include whether one provides his own equipment, the degree of financial risk taken, and the opportunity for profit in
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the performance of the task. For this reason the test is also known as the “composite or economic reality/entrepreneur test” and this is applied in the common law up to the present time.
Determining the scope of vicarious liability Once it has been established that the correct type of relationship exists e.g. that of an employer and employee, it remains to be seen to what extent will the employer be held responsible for his employee’s wrongful actions. It is important to note that the employer is not liable for all wrongful acts committed by an employee, but only those that take place within the course of employment. In medieval times this was not the case; indeed, a person was liable for all wrongs committed by his servant (8). A change was seen from the 1800’s, when in a number of cases courts determined when employees would be on a so-called “frolic of their own”, and the employer was not held to be liable (9). But even to this day the distinction between a “frolic” and being within the course of employment remains problematic. In determining the scope of liability, there must be a delicate balance. Too restrictive an interpretation will reduce the incentives for an employer to undertake preventative measures, and will diminish the ability of a victim to seek redress from a wealthier defendant. Too broad an interpretation will impose an undue financial burden on defendants. In practice the common law has found it difficult to achieve such a balance between the three members of the vicarious liability triangle: the victim, the employee, and the employer. What is clear though, is that in all cases the courts focus on the specific facts of each case and adopt a flexible approach to the course of employment test in each case, guided as they are by the policy of ensuring victim compensation and reaching a just and fair decision. When determining the course of employment test, the traditional starting point has been the so-called Salmond test (10).
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However flexibility can be misinterpreted as uncertainty and this leads to a divergence of views amongst the judiciary on application to broadly similar situations. The British approach to identify a more general test for close connection has been a more composite one, mirroring that of the course of employment test. It was best stated as”. Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the employee was authorized to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.” (12) In Bernard vs Attorney-General of Jamaica (13) the need for a composite approach was also recognized by Lord Steyn. He noted that “ The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter…..it is just and reasonable to hold the employers vicariously liable. ……..a relevant factor is the risks to others created by an employer who entrusts duties, tasks and functions to an employee.” Although they have avoided adopting the “enterprise risk” test in its entirety, it is noticeable that it still forms part of the considerations of the British courts. Three key facts are examined by the latter; (i) the specific facts of each case, (ii) the employee’s purpose, and (iii) the policy interest in ensuring victim compensation.
CONCLUSION
Vicarious liability is a doctrine that has evolved over time. From the justification of fault in pre- Industrial Revolution times, to the welfare considerations of the compensation of innocent victims in a post-Industrial Revolution age, it now exists where the skilled, independent
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professional works hand in hand with technological advancement and a strong insurance market. For vicarious liability to exist there must be a specific act, a specific type of relationship, and that act must be committed within the course of employment. Tests to determine the last two factors have metamorphosed to become composite in nature. As ever, the courts are driven in their search for what is a fair and just solution, and vicarious liability represents a compromise; a mechanism that seeks to provide a balance between the needs of innocent victims and the risks posed to society by an employer’s enterprise, industrialization, and technological advancement.
