Date: Wed, 1 Feb 2006 16:18:28

From: Robert Stevens

Subject: Two Questions

I have two questions which I cannot answer for myself arising from what I am working on. Any help, offlist if preferred, gratefully accepted.

Problem One

We have recently discussed an employer's vicarious liability for exemplary damages and vicarious liability for an employee's obligation to make restitution of a gain made by the employee.

Are there any cases where an employee, acting in the course of employment, commits a tort which results in a gain for the employer but not the employee? Is the employer obliged to make restitution? In principle I think the answer should, generally, be yes, if this is the sort of tort which permits of this response but are there any cases?

Problem Two

In a claim for contribution between two careless tortfeasors, does the court apply the same test in determining relative 'fault' as it would in deciding whether the tort has been committed? So, if two drivers D1 and D2 both carelessly cause a car accident which results in injuries to P, could D1 argue that she was a learner driver whilst D2 was a professional chauffeur so that the contribution as between the two of them should not be equal? Or, as between D1 and D2 do we apply the objective standard which we would apply in the claim by P against either one of them? Cases?

Robert Stevens
Barrister
University of Oxford

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