Date: Tue, 17 Jan 2006 13:42:25 -0500

From: Jason Neyers

Subject: Vicarious vicarious liability

Neil Foster wrote:

In fact the curious result of Viasystems (which in case it is isn't apparent I am by no means convinced is correctly decided) is that the company Darwell, 2nd defts, were found vicariously liable for the actions of young Darren Strang when being supervised by Horsley, but Horsley himself was "self-employed" (see para [3]). For all that we know from the facts as recited by the court, Darwell might have actually been the employer of nobody at all. Yet they are still fixed with vicarious liability ...

Neil I think that this point you have raised is one of the problems that turns the reasoning in the case from poor to appalling. I just could not understand how the court, on its own reasoning, could even hold the 2nd defts liable given Horsley's status as an IC.

On a second front, does anyone have any idea what legal principles/policies/examples LORD JUSTICE RIX had in mind when he commented:

Both employers are using the employee for the purposes of their business. Both have a general responsibility to select their personnel with care and to encourage and control the careful execution of their employees' duties, and both fall within the practical policy of the law which looks in general to the employer to organise his affairs in such a way as to make it fair, just and convenient for him to bear the risk of his employees' negligence.

Has he heard of company law? I don't think that I have ever come across such a practical policy ever stated as such in a private law case.

Cheers,

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

<<<< Previous Message  ~  Index  ~  Next Message >>>>>