Vicariously Protected

Why vicarious liability is an essential part of justice in domestic and international law

Business creates. Proponents of free markets and capitalism will tell you, markets create surplus. They create innovation. They create employment, development and higher standards of living. But, businesses also create risk.

The traditional rationale for employers’ liability for the negligence of employees is that those who create risk in society in the pursuit of profit should be liable for acts toward that pursuit.

Common law jurisdictions from the US, to the UK and Australia hold the principle as part of their jurisprudence, a key tenet of maintaining reign on the responsible pursuit of profit in an increasingly interdependent society.

Known as the master-servant doctrine, or respondeat superior was extended into international law with command responsibility. The essence of the doctrine’s both domestic and international iterations is responsibility by a higher ranked person for the acts, negligent or criminal, of a subordinate. Both also require a test of scope, assessing whether the relevant act took place in the course of duties.

But what about vicarious liability now? Courts hold autonomy, particularly in negligence actions, in increasingly high regard, and the pursuit of profit faces lower regulatory hurdles as the law struggles to keep pace with new forms of business.

Vicarious liability not only holds the reigns on the responsible pursuit of profit, but its obverse is equally, if not more, important: it protects employees from economic duress.
As markets shifted individuals away from self-sufficiency, and into interdependence, workers have become dependent on their employment to subsist. Such a powerful incentive, held by employers, inherently also gives the potential to shift the risk of profitable acts from the recipient of that profit to an employed individual: this means that the burden of that risk is placed on a person without the means to mediate that risk, as employment, and therefore subsistence, depend on carrying out the risky act.

In international law, the consequences of vicarious liability are even more extreme: the consequences of failing to comply with duties may be violent, and come without the protection of peace-time or civilian law. For that reason, the end actors in war crimes are sometimes not guilty, where their lives or their families were under such extreme duress.

So, beware. As trends continue towards more barriers for plaintiffs, and fewer protections for vulnerable parties in civil litigation, remember that the law serves important social functions, that are core to our social values. Vicarious liability is not about shifting liability to deeper pockets; it’s about making sure employees aren’t shoved off the deep end.

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