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The Application of Vicarious Liability in the Modern Context of Employment

İşverenin Kusursuz Sorumluluğu

Ayten ORDU

Vicarious liability is a principle under which one person can be held liable for the tortious acts of another person. This article examines the circumstances under which an employer can be held liable for the tortious acts of his employees. Vicarious liability contradicts the general principle of tort law in that a person who commits a wrongdoing should be responsible for his or her wrongful actions. This is because rather than finding the employee solely responsible for their wrongful actions, it is often the employer who is found responsible for the acts of his or her employees. There are however, a number of justifications which have been considered, for the imposition of liability on the employer and a number of factors to be taken into account before vicarious liability can be applied.

Employee, Employer, Tortious Act, Vicarious Liability, Course of Employment.

Bu çalışmada amaçlanan, işçinin, üçüncü kişilere karşı gerçekleştirmiş olduğu haksız fiillerden, işverenin nasıl sorumlu tutulacağını ortaya koymaktır. İngiliz Hukuku’nda, Temsil olunanın sorumluluğu, haksız fiil hukukunun genel prensipleri ile çelişmektedir. Haksız fiil hukukunun genel prensibine göre, bir kimse, başka bir kimseye karşı gerçekleştirdiği hatalı davranışlardan veya işlemiş olduğu haksız davranışlarından sorumlu tutulmalıdır. Ancak, işverenin sorumluluğu, bahsedilen bu genel prensip ile çelişmektedir, çünkü işveren kendi kusurlu veya hatalı davranışlarından dolayı değil, çalışanının işlemiş olduğu hatalı veya haksız eylemlerinden sorumlu tutulmaktadır. Bu çalışmada, işverenin hangi hallerde sorumlu tutulabileceği ve gerekçeleri incelenmektedir.

Çalışan, İşveren, Haksız Fiil, İşverenin Sorumluluğu, İstihdam Süresi.

I. INTRODUCTION

Vicarious liability is a long established doctrine. It has been defined as “legal responsibility for other people’s actions, especially those of your employees...”1 The application of the doctrine is crucial for the modern employment context today. An example of the application of the doctrine is given by Quinn, who states “imagine you are walking past a building site, and a bricklayer working above negligently drops a brick on your head.”2 In such a situation, the bricklayer is usually in a position where he or she cannot afford to pay damages running into “tens of thousands of pounds.”3 As opposed to leaving the injured victim without a claim, the law allows the injured victim to claim compensation, by imposing vicarious liability on the employer.

It is arguable that the application of vicarious liability can be unfair on employers, predominantly due to the fact that it can be seen as an ‘exception’ to the general principle of tort law, that a person is liable for his or her wrongful actions. The reason for this is because under vicarious liability, a person other than the person who committed the tort will be liable. As can be seen in the example above, the effect of the doctrine is to apply legal responsibility on the employer (who has in fact not committed a legal wrong at all), and this can often be seen as an unfair.

Many academics have argued the application of vicarious liability is a form of strict liability, where employers will be strictly liable for the wrongs of their employees, regardless of whether or not the employers are to blame. Jones has argued that vicarious liability is a form of strict liability, because “it arises from the employer-employee (master-servant) relationship, without reference to any fault of the employer”.4 Similarly, Markesinis and Deakin argue “vicarious liability is another instance of strict liability in the sense that the employer who is not at fault is made responsible for the employee’s default”.5 This can also be compared to another view that was adopted by Ward LJ in the case of E v English Province of Our Lady of Charity and Another,6 whereby it was said “[Vicarious Liability] imposes liability on D (the defendant) to compensate C (the claimant) for the damage suffered by C caused by the negligent or other tortious act of A (the actor), even though D is not personally at fault at all. It is thus a form of strict liability that may seem harsh on D.”7 Ultimately, such views suggest the doctrine of vicarious liability is problematic, because it runs counter to the general principle of tort law that a person should be made accountable for his or her wrongful actions.8 The reason why the doctrine runs counter to the general principle of tort law is because under the doctrine, it is not the wrongdoer who is made to pay for his wrongdoings, but rather, another person (his employer), who has nothing to do with the wrongdoing, who bears the responsibility for his employees’ wrongful conduct.