Joseph Magnet, ‘Vicarious Liability and the Professional Employee’

Vicarious liability doctrine has twin origins. In ancient law it concerned ownership and control of things, slaves and servants. In the modern period it was reconfigured as a means of accomplishing the social democratic spreading of losses caused by industrial activity. Both ideas still inhabit vicarious liability doctrine.

The early court cases rarely experienced between the historical origins of vicarious liability (control of things and people) and the idea that the community at large, or the employer’s deep pocket, should bear the cost of losses caused by industry. This is because most employees considered in the early cases were controlled.

The rise of the professional employee induces tension because the professional employee is not controlled in the traditional sense. Strict application of the control idea in the professional employee context restricts access to the employer’s deep pocket for losses caused by industry. In this context the historical formulation (control) and the social-democratic rationalization (loss-spreading) contradict each other.

This tension is why the doctrine is erratically administered in the professional employee context and produces uncertain and unsatisfactory results.

Magnet, Joseph, Vicarious Liability and the Professional Employee (2015). Canadian Cases on the Law of Torts, Vol 6, p 208, 2015.

First posted 2015-03-09 07:25:37

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