Rough Justice in an Unjust World

Publication Date01 March 2002
AuthorPaula Giliker
DOIhttp://doi.org/10.1111/1468-2230.00379
general, one had best hope that Blake is, as quickly as possible, recognised for what
it is: the Junior Books Ltd vVeitchi88 of contract remedies.
What is more, after taking a rather long time since Wrotham Park to get into its
full stride, the entertainment has only just really begun with Blake. For one
suspects that ‘efficiency’ may be at work in more areas of contract remedies than
the rare situation of a defendant breaching a contract to maximise future gain.
What will we do when it is realised that, horror of horrors, the defendant usually
breaches a contract in a deliberate attempt to minimise future loss, and that it is the
basic function of remedies for breach is to allow this because it also is efficient?
Rough Justice in an Unjust World
Paula Giliker*
The doctrine of vicarious liability has not grown from any very clear, logical or legal
principle but from social convenience and rough justice
(Lord Pearce in Imperial Chemical Industries vShatwell)
1
The concept of vicarious liability has always troubled the law of tort. It is difficult
to find a clear rationale to explain why, in an area of law dominated by the fault-
based liability, an innocent party should find himself or herself liable to pay for the
faults of another. A number of explanations have been given for such liability,
which vary in credibility. Atiyah in his leading text on vicarious liability
2
outlines
the different theories adopted by the courts and academics, which range from
blaming an employer for his or her poor choice of employee to the more modern
concept of loss distribution.
3
Glanville Williams is perhaps more cynical in
recognising that ‘vicarious liability is the creation of many judges who have had
different ideas of its justification or social policy, or no idea at all’.
4
Faced with such uncertainty, modern-day courts have adopted a pragmatic
approach, which appears to rely alternatively on precedent and social justice. At
times, the courts will merely find a precedent and follow it without consideration
of the wider implications of the decision.
5
In a number of cases, however, the
* Lecturer in Law, Queen Mary, University of London. I would like to express my gratitude to Jonathan
Griffiths and Keith Syrett for their helpful comments on early drafts of this note. Any errors or omissions
remain the fault of the author.
2 P.S. Atiyah, Vicarious Liability in the Law of Torts (London: Butterworths, 1967) Ch 2.
3 Which Atiyah finds to be the most rational justification for vicarious liability today (see 22–28). See
also G. Williams ‘Vicarious liability and the master’s indemnity’ (1957) 20 MLR 220, 228–235 and
H.J. Laski ‘The basis of vicarious liability’ (1916) 26 Yale LJ 105, 109–111 (who finds the rule to be
based on public policy). This article will not use the term ‘master and servant’, although this is still
used in the case law and a number of leading texts. It is believed that in contemporary conditions, the
terms ‘employer’ and ‘employee’ are more appropriate.
4 (1957) 20 MLR 220, 231.
5 See, for example, Trotman vNorth Yorkshire County Council [1999] LGR 584. Here, Butler-Sloss LJ
acknowledged that by a narrow application of precedent the plaintiff would receive no financial
redress for the serious consequences he had suffered, but nevertheless refused to reason by analogy to
the broader principles applied in relation to sex and race discrimination (see Jones vTower Boot Co
Ltd [1997] IRLR 168, [1997] 2 All ER 406).
March 2002] Lister vHesley Hall Ltd
ßThe Modern Law Review Limited 2002 269

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