By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School)
In this blog, I will discuss two recent publications which address comparatively the doctrine of vicarious liability in tort and demonstrate the value of a comparative perspective in this field. Vicarious liability is a rule of responsibility which is found across the common law of tort and typically renders an employer strictly liable for the torts of its employees provided that the tort takes place in the course of employment. The idea of holding an employer liable to pay compensation to victims of its employees’ torts, regardless of the absence of personal fault, is not, however, unique to the common law. Ideas of strict liability for the torts of others may also be found in civil law systems, although in some systems it is subject to a rebuttable presumption of fault (see, generally, Giliker, Vicarious Liability in Tort (CUP, 2010) and J Spier (ed), Unification of Tort Law: Liability for Damage Caused by Others (Kluwer Law International, 2003)). In all systems, it has proven controversial with some commentators arguing that the imposition of no-fault liability on employers conflicts with notions of corrective justice and notably, in a number of systems, it has been questioned to what extent liability can be said to be founded on economic justifications based on enterprise risk and loss distribution via social or private insurance. (more…)
By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).
The office Christmas party is something many of us will have enjoyed recently. In the words of Judge Cotter QC in the recent High Court decision in Bellman v Northampton Recruitment Ltd  EWHC 3104 (QB), it is an occasion “no doubted dreaded by some and an annual highlight for others” (para 14). Needless to say, in most cases, alcohol will be freely flowing and sadly things may be said or done regretted bitterly the next day.
In the case of the Northampton Recruitment Ltd 2011 Christmas party, it was not the party itself (held at the Collingtree Golf Club) which proved eventful, but the “after party” held in the lobby of the Collingtree Hilton Hotel in the course of which the managing director of the company, John Major, punched an employee (Clive Bellman) twice during the course of a disagreement at 3am. Mr Bellman’s head hit the marble floor, leading to brain damage. By the time of the trial, his condition was such that he was not able to litigate or manage his affairs and brought his claim as a protected party. To add to the tragedy, the parties in question had been friends since childhood. The assault, no doubt fuelled by alcohol, had been provoked by a work-related dispute, although discussions at the Hilton Bar had covered a variety of matters. The question for the court was whether the company would be held vicariously liable for the tort of its managing director. (more…)