Douglas Brodie, ENTERPRISE LIABILITY AND THE COMMON LAW Cambridge: Cambridge University Press (www.cambridge.org), 2010. xi + 190 pp. ISBN 978052176201. £55.
| Date | 01 January 2012 |
| Author | Wanjiru Njoya |
| DOI | 10.3366/elr.2012.0095 |
| Published date | 01 January 2012 |
| Pages | 137-138 |
This book analyses the nature of the risk generated by the enterprise and the legal regulation of this risk. Apart from the law of tort, the book raises interesting and important questions in labour law, corporate law and the law of contract, relating to the way work is organized, the relationship between employee and employer, the relationships between workers, and the policy considerations which should influence the law in compensating third parties for damage caused by the negligence or wilful misconduct of employees, or compensating employees for harm caused to them in the workplace. The book offers a rich comparative analysis of case law from the UK, Canada, Australia and the United States, revealing the similarities and differences between these common law jurisdictions and showing the direction that law reform is taking.
With an admirable depth of research, the discussion proceeds systematically through a series of questions the determination of which depends on, or can be explained by reference to, theories of enterprise liability. Regarding the employer's vicarious responsibility for the torts of employees, Brodie argues that the outcome should depend on “the risks generated by the enterprise rather than the individual”. The claimant, for instance a victim of sexual abuse, would then be able to rely on evidence of an abusive “culture and ethos” in the enterprise, without requiring proof that the employer was at fault in hiring or failing to supervise the particular individual who perpetrated the abuse. The discussion considers how one would define “the enterprise” for this purpose, particularly in situations where the employing entity is a group of companies. Brodie is critical of the courts’ reluctance to pierce the corporate veil; it is too easy to structure corporate groups so as to shield the parent company from liability. Similar difficulties arise in assigning liability where the tortfeasor has been “borrowed” by one employer from another and the question is who should be liable, the permanent or the temporary employer. The traditional view attaches liability to the permanent employer, but Brodie shows that the law may now be prepared to share liability between both employers, or indeed shift the risk entirely to the temporary employer. Given the problematic distinction between the “employee” and the “independent contractor”, Brodie suggests that employers should also be liable for the torts of independent contractors. Regarding the...
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