Vicarious Liability And The Master'S Indemnity
| Date | 01 September 1957 |
| Author | Glanville Williams |
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb02710.x |
| Published date | 01 September 1957 |
THE
MODERN
LAW
REVIEW
~
Volume
20
September
1957
No.
5
VICAlEIOUS LIABILITY AND THE MASTER’S
INDEMNITY
(continued from p.
235)
TEE
only philosophy
of
vicarious liability that will satisfy everybody
is one based
on
‘(
public policy
))
or
‘‘
social necessity.” But
it
will
not do merely to invoke these phrases-as Holdsworth did the first,
and as Lord Simonds did the second ‘-without some explanation
of how vicarious responsibility promotes
or
serves them. There are
in fact two possible explanations, one related to the notion of fault
and one to the economic distribution of
risk.
VICARIOUS
LIABILITY
AS
RELATED
TO
THE
MASTER’S
FAULT
The first line
of
argument is
to
say that vicarious liability is justified,
on
grounds either of moral reparation
or
of deterrence, because of a
presumption
of
the master’s fault. When a servant commits a
tort in the course of his employment, the master is very often guilty
of what German lawyers call
culpa
in
eligendo
or
culpa in inspiciendo.
The “control” theory of liability
in
effect amounts to the s?me
assertion. Control may be of some legal value
in
establishing the
technical relation of master and servant, but
it
is not (as
it
is some-
times treated
”)
in itself a philosophical basis
of
vicarious liability-
except through the manufacture of yet another principle of natural
justice. The control theory makes sense only by linking it to the
presumption of fault. Even
so,
it
works imperfectly. The person
with real control over the crew of a ship
is
the captain
or
master,
1
Holdsworth, viii,
477;
Mersey
Docks
and Harbour Board
v.
Coggins
&
Grilfiths,
Ltd.
[1947]
A.C.
at
18.
Holdsworth referred to dicta
of
Holt
C.J.,
but these
were little more than the rul: itself dressed up.
2
Thus Denning
L.J.
said: The reason why the employers are liable
is
not
because they can control the way in which the work
is
done-they often have
not
sufficient knowledge
to
do so-but because they employ the staff and have
chosen them for the task,
and
have
in
their hands the ultimate sanction for
good conduct, the power of dismissal
”
(Cassidy
v.
Ministry
of
Health
[1951]
2
K.B.
at
360
(C.A.)).
VOL.
20
437
29
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