Journalof European Tort Law Vicarious Liabilityor Liabilityforthe Actsof Othersin Tort AComparative Perspective

See discussions, stats, and author profiles for this publication at: https://www.researchgate.
net/publication/272264532
Vicarious Liability or Liability for the Acts of Others in Tort: A Comparative

Perspective
Article in Journal of European Tort Law · January 2011

DOI: 10.1515/jetl.2011.31
CITATIONS READS
6 16,227
1 author:
Paula Giliker
University of Bristol
58 PUBLICATIONS 103 CITATIONS
SEE PROFILE
Some of the authors of this publication are also working on these related projects:
Research Handbook on European Union Tort Law View project
BACL and ISCL seminar on comparing UK and Irish law in the 21st century View project
All content following this page was uploaded by Paula Giliker on 07 July 2017.
The user has requested enhancement of the downloaded file.

Vicarious Liability or Liability for the Acts of Others in
Tort: A Comparative Perspective
by
Paula Giliker*
Abstract: In this article, the author examines from a comparative perspective the nature of
vicarious liability in tort (or liability for the acts of others, to use civilian terminology). She
notes a common legal framework, crossing common and civil law boundaries, and focuses on
three key questions in determining the scope of this form of strict liability: Should liability be
strict or fault-based? Which relationships should give rise to liability and, bearing in mind the
disintegration of traditional working patterns, should liability be extended to temporary or
agency workers? When should a tort be considered in the ‘course of employment’, dans les
fonctions auxquelles ils les ont employés or in Ausführung der Verrichtung? In examining
these key questions with reference to case-law from the common law (England and Wales,
Canada, Australia) and the civil law (France, Germany), together with examination of the
relevant provisions of the Principles of European Tort Law and the Draft Common Frame of
Reference, the author argues that a comparative perspective increases our understanding of
core principle, and helps us to appreciate the factors which influence legal development, in
addition to suggesting possible models for reform.
(2011) 2 JETL 31
The doctrine of ‘vicarious liability’, generally termed ‘liability for the acts of
others’ by civil lawyers, has long been regarded as controversial in the common
law world. The term, claimed to be invented by the English jurist Frederick
Pollock in the 1880s,1 is itself ambiguous and fails to distinguish clearly between
agency liability, and secondary liability2 for the original tortfeasor.3 A brief
glance at any common law textbook will indicate ongoing debates and, in par-
ticular, a troublesome quartet of cases (Lister v Hesley Hall Ltd,4 Bazley v
* Professor of Comparative Law, University of Bristol. The author would like to thank the
Society of Legal Scholars Torts section and reviewers of the Journal of European Tort
Law for their helpful comments on this article. The usual disclaimers apply.
1 See MD Howe (ed), Holmes-Pollock Letters, vol 1 (1942) 233.
2 This is commonly assumed to be the correct interpretation of the law: Staveley Iron and
Chemical Co Ltd v Jones [1956] Appeal Cases (AC) 627; Imperial Chemical Industries
Ltd v Shatwell [1965] AC 656.
3 See C von Bar, A Common European Law of Torts, vol 1 (1998) 337. Note, however, the
continued use of ‘agency’ in the United States: see Restatement (3d) of Agency, § 7.01
(agent’s liability to third party). This article will focus on vicarious liability in its strict
sense and will not address more general questions of agency liability.
4 [2002] 1 AC 215.
Brought to you by | University of Bristol

Authenticated
Download Date | 7/7/17 2:20 PM
32 Paula Giliker JETL 1/2011
Curry,5 New South Wales v Lepore6 and S v Attorney-General7) in which the

senior courts of England and Wales, Canada, Australia and New Zealand
respectively considered both the scope and underlying rationale of this doc-
trine. The context of these cases – whether an institution or governmental
department should be held vicariously liable for sexual abuse by adults en-
trusted to care for vulnerable children – perhaps indicates both their conten-
tious nature, notably in terms of loss distribution and tort law policy, but also
the fact that current social policy leads us to challenge traditional legal defi-
nitions of the limits of such liability. Lord Justice Longmore in a recent Eng-
lish Court of Appeal decision expresses much of the frustration of the com-
mon law courts: ‘Is it that the law should impose liability on someone who can
pay rather than someone who cannot? Or is it to encourage employers to be
even more vigilant than they would be pursuant to a duty of care? Or is it just a
weapon of distributive justice. Academic writers disagree and the House of
Lords in Lister did not give any definitive guidance to lower courts.’8
This article will argue that, lacking inspiration, the common law audience
should look without, not within, and consider not just the common law family,
but the development of parallel doctrines in civil law.9 Further, it will assert
that both common and civil lawyers may learn lessons from a broader com-
parative study, enabling a more profound critical appraisal of their own system
of law. I will focus on two models crossing legal systems which I will term
the ‘French’ and ‘German’ models. The French model is encapsulated in
art 1384(5) of the French Civil Code (Code civil), unchanged since 1804,
and holds that ‘[m]asters and employers. . . [are strictly liable] for the damage
caused by their servants and employees in the functions for which they have
been employed.’10 This model has been adopted by a number of other Euro-
pean States, including Belgium11 and Italy.12 An immediate contrast may be
5 (1999) 174 Dominion Law Reports (DLR) (4th) 45, conjoined with Jacobi v Griffiths
(1999) 174 DLR (4th) 71.
6 (2003) 212 Commonwealth Law Reports (CLR) 511.
7 [2003] 3 New Zealand Law Reports 450.
8 Maga v Birmingham Roman Catholic Archdiocese Trustees [2010] England and Wales
Court of Appeal, Civil Division (EWCA Civ) 256, [2010] 1 Weekly Law Reports
(WLR) 1441, para 81 (the case itself concerned the potential responsibility of the Roman
Catholic Church for sexual abuse by priests of non-parishioners). Comment: P Giliker
(2010) 126 Law Quarterly Review (LQR) 521.
9 See, generally, P Giliker, Vicarious Liability in Tort: A Comparative Perspective (2010)
and J Spier (ed), Unification of Tort Law: Liability for Damage Caused by Others (2003).
10 ‘Les maîtres et les commettants. . . [sont responsables] du dommage causé par leurs
domestiques et préposés dans les fonctions auxquelles ils les ont employés. . .’ All trans-
lations of French Codes are taken from Légifrance: <http://www.legifrance.gouv.fr>,
accessed 6 December 2010.
11 Art 1384 III Code civil belge.
12 Art 2049 Codice civile.

Authenticated
JETL 1/2011 Vicarious Liability or Liability for the Acts of Others in Tort 33
drawn with the German model; the German Civil Code (Bürgerliches Gesetz-
buch, BGB) provides in § 831 BGB (Haftung für den Verrichtungsgehilfen):13
A person who uses another person to perform a task is liable to make compensation for the damage
that the other unlawfully inflicts on a third party when carrying out the task. Liability in damages
does not apply if the principal exercises reasonable care when selecting the person deployed and, to
the extent that he is to procure devices or equipment or to manage the business activity, in the
procurement or management, or if the damage would have occurred even if this care had been
exercised.
Liability here is premised on fault, albeit with a reversed burden of proof

(Entlastungsbeweis) requiring the employer to demonstrate that care was tak-
en in the appointment, supervision or management of employees or simply
that the damage would have occurred in any event. Similar provisions exist in
the Spanish14 and Swiss Civil Codes.15
Yet, while the German model clearly contrasts with that of the common law
and French law, a common framework may nevertheless be determined. All
systems require:
䊉 a relationship by which one person may be held liable for the harmful acts
of others;
䊉 the commission of wrongdoing by the employee or subordinate; and
䊉 that liability is confined to a specific set of circumstances, be it ‘within the
course of employment’, dans les fonctions auxquelles ils les ont employés or
in Ausführung der Verrichtung.
Whilst the operation of this framework may differ in practice, it provides a
starting point for analysis which permits us to address three fundamental
questions relating to the nature of the operation of the doctrine, which we,
for ease of exposition, will term vicarious liability in tort. First, bearing in
mind the Germanic model, should an employer be held strictly liable for the
torts of his employees in the course of their duties? Would a reversed burden of
proof be preferable to the common law and French imposition of strict liabil-
ity in this context? Secondly, what relationships should give rise to such li-
13 ‘(1): Wer einen anderen zu einer Verrichtung bestellt, ist zum Ersatz des Schadens
verpflichtet, den der andere in Ausführung der Verrichtung einem Dritten widerrecht-
lich zufügt. Die Ersatzpflicht tritt nicht ein, wenn der Geschäftsherr bei der Auswahl
der bestellten Person und, sofern er Vorrichtungen oder Gerätschaften zu beschaffen
oder die Ausführung der Verrichtung zu leiten hat, bei der Beschaffung oder der Leitung
die im Verkehr erforderliche Sorgfalt beobachtet oder wenn der Schaden auch bei
Anwendung dieser Sorgfalt entstanden sein würde.’ All translations of the BGB are
taken from the German Ministry of Justice website: <http://www.gesetze-im-inter-
net.de/englisch_bgb/englisch_bgb.html>, accessed 6 December 2010.
14 Art 1903(1) Código civil español.
15 Art 55 Code des obligations (CO).

Authenticated
ability? Should liability be confined to the employer-employee relationship

(the focus of the common law) or should a more flexible approach be taken,
responding to changes in employment practices? Finally, a question troubling
common law courts in particular: when should an employee be found to be
acting within the course of his duties and what factors should determine the
courts’ response to this question? It is submitted that a comparative approach,
utilising both civilian and common law legal authority, doctrinal writing and
research, is capable of both deepening our understanding of the fundamental
issues underlying vicarious liability, and also in assisting the more coherent
future development of this area of law.
I. Strict liability or a reversed burden of proof?
Common lawyers accept, in the main,16 the doctrine of vicarious liability as

one of strict liability, that is, liability without fault. This is not, however,
without controversy. Lord Nicholls in a 2006 English House of Lords decision
remarked that the doctrine is ‘at odds with the general approach of the com-
mon law. Normally common law wrongs, or torts, comprise particular types
of conduct regarded by the common law as blameworthy. In respect of these
wrongs the common law imposes liability on the wrongdoer himself. The
general approach is that a person is liable only for his own acts.’17 The doctrine
may thus be regarded as an anomaly in a system of wrongs dominated by the
tort of negligence. Nevertheless, despite the early scathing commentary of
Thomas Baty in 1916,18 it is, as observed by Patrick Atiyah, taken for granted
as a necessary part of any system of tort law.19
Such tensions between a dominant philosophy of fault-based liability (or, if we
prefer, corrective justice) and strict liability based on notions of loss distribu-
tion and risk-based reasoning resonate across legal systems. In France and
Germany, such tensions are manifest in the codal provisions themselves. In
France, the short section on tort law (or delict) is, on its face, dominated by
art 1382: ‘Any act which causes harm to another obliges the person whose fault
16 Note, however, the attacks from proponents of corrective justice who argue that re-
spondeat superior may be regarded as consistent with principles of corrective justice if
the employer can, in some sense, be regarded as a doer of the harm: See eg E Weinrib,
The Idea of Private Law (1995) 185–187.
17 Majrowski v Guy’s and St Thomas’s NHS Trust [2006] United Kingdom House of Lords
(UKHL) 34, [2007] 1 AC 224, para 8.
18 Describing vicarious liability as ‘a principle dubious in origin, and unjust in operation –
one, moreover . . . for which little or no theoretical justification is even to be found
advanced’: T Baty, Preface to Vicarious Liability (1916) 3 (termed ‘this ingenious con-
troversial book’ by F Pollock (1916) 32 LQR 226).
19 PS Atiyah, Personal Injuries in the Twenty-First Century, in: P Birks (ed), Wrongs and
Remedies in the Twenty-First Century (1996) 15.

Authenticated
caused the harm to make reparation.’ Equally, the Pandectist influence20 is

apparent on the delictual provisions of the German Civil Code (§§ 823–853
BGB), § 823 (1) premising liability for damages (Schadensersatzpflicht) on the
basis that ‘[a] person who, intentionally or negligently, unlawfully injures the
life, body, health, freedom, property or another right of another person is
liable to make compensation to the other party for the damage arising from
this.’ Nevertheless the drafters of the French Civil Code made provision in
art 1384 for liability for the acts of others based on a ‘presumption’ of fault.
Whilst in the original draft such a presumption was rebuttable in the case of
parents, teachers and craftsmen by proof that reasonable care had been taken,
it was irrebuttable in the case of masters and employers.21 The preparatory
works for the Civil Code indicate that this decision, in apparent conflict with
natural law ideas of personal responsibility,22 was explicable as a matter of
justice: ‘those on whom it is imposed can blame themselves, at the very least,
for weakness, others for bad choices, all for negligence.’23 Carbonnier noted
that the provision was thus initially interpreted as based on a presumption of
fault by the employer for his negligent choice or supervision of an employee.24
Subsequently, however, the French courts and commentators have moved to
embrace strict liability. In the words of leading commentators, Viney and
Jourdain:25
We will simply note that no-one today maintains, at least in France, that the liability of the
employer is only explicable on the basis of fault, not even on the basis of a presumption of fault
in the choice or supervision of his employees. . . [I]t is appropriate, in building a regime adapted to
the needs of contemporary society, to consider the liability of the employer in a new light, con-
sidering it above all as a means of imputing to the business the risks created by its activities.
20 See BS Markesinis/H Unberath, The German Law of Torts: A Comparative Treatise

(4th edn 2002) 694, who comment that the 19th-century Pandectists had incorrectly
convinced themselves that the doctrine of culpa in eligendo was the only one known to
Roman law. See also DW Belling in: J von Staudinger, Kommentar zum Bürgerlichen
Gesetzbuch (2008) § 831 no 1.
21 Although Eörsi reports that the preliminary draft of the Civil Code contained a possi-
bility for exemption in art 19(5), which allowed the employer a due diligence defence,
this was subsequently rejected on the basis that, if the exemption was upheld, the
commettant might avoid liability for damages caused during his or her absence (de-
scribed by Eörsi as ‘rather irrelevant reasoning’): G Eörsi, Private and Governmental
Liability for the Torts of Employees and Organs, in: A Tunc (ed), International Ency-
clopedia of Comparative Law, vol 11: Torts (1983) paras 4–8 fn 8.
22 See J Domat, Les loix civiles dans leur ordre naturel (1689, reprinted 1756).
23 Attributed to Treilhard, who contributed to the drafting of the Civil Code, whose
comments of 1803 are reported, in PA Fenet, Recueil complet des travaux préparatoires
du Code civil, vol 13 (1827, reprinted 1968) 468 (trans P Giliker).
24 J Carbonnier, Droit civil, vol 4: Les obligations (22nd edn 2000) 243.
25 G Viney/P Jourdain, Les conditions de la responsabilité (3rd edn 2006) no 791-1 (trans P
Giliker). See also P Jourdain, La responsabilité du fait d’autrui à la recherche de ses
fondements, in: P Conte et al (eds), Mélanges Lapoyade-Deschamps (2003) 67.

Authenticated
The idea of presumed fault does, however, possess contemporary relevance

when one considers the German Civil Code. As previously stated, the focus of
§ 831 BGB is on the fault of the employer, not the employee, and whether he
can satisfy the Entlastungsbeweis, establishing either that reasonable care was
taken or that the damage would have occurred in any event. Such an approach
may be traced to the opposition of 19th-century theorists to the notion of
liability without fault,26 and more pragmatic concerns of overburdening small
businesses in a developing economy in the face of strong lobbying from trade,
industry and agriculture.27 Brüggemeier notes that a debate did indeed occur
during the drafting process whether to favour strict or fault-based liability, but
that despite arguments in favour of rendering industry liable for the risks
caused by its activities, the majority of the Second Drafting Commission,
consisting of older officials who were predominantly scholars of the Gemeines
Recht who favoured the principle of no liability without fault, was not con-
vinced.28 Specific statutory provision was nevertheless accepted as necessary
for some accidents deriving from industrialisation, notably the Imperial Law
of Liability (Reichshaftpflichtgesetz) of 1871, which imposed strict liability on
railway companies for death or personal injury caused through the operation
of the railways – a practice which has continued.29 On its face, therefore, the
Germanic model challenges the readiness of common law and French courts to
take strict liability as a ‘given’, a necessary element of modern European tort
law. It also supports doubts from modern commentators, such as the Canadian
Jason Neyers,30 that tort law, dominated by concepts of fault, cannot alone
provide an explanation for the continued existence of this doctrine.
However, the reality is not, in practice, so clear-cut. To impose a reversed
burden of proof, diminishing the compensatory burden of employers at the
height of the industrial revolution, has proven controversial and although this
paragraph survives to this day, despite a number of reform proposals and
amendment of the BGB in 2001,31 its interpretation must be examined. The
German courts have successfully circumvented the limitations of this provi-
26 K Zweigert/H Kötz, Introduction to Comparative Law (3rd edn 1998) 630 f.

27 See HH Seiler, Die deliktische Gehilfenhaftung in historischer Sicht, Juristenzeitung
1967, 525 and G Wagner in: FJ Säcker/R Rixecker, Münchener Kommentar zum Bür-
gerlichen Gesetzbuch (5th edn 2009) § 831 no 1.
28 G Brüggemeier, Haftungsrecht: Struktur, Prinzipien, Schutzbereich (2006) 121.
29 Eg Road Traffic Act (Straßenverkehrsgesetz, StVG) of 19 December 1952, Bundesge-
setzblatt (BGBl) I, 837 (as amended) and Liability Act (Haftpflichtgesetz, HPflG) of 4
January 1978, BGBl I, 145 (as amended). For translations into English, see <http://
www.utexas.edu/law/academics/centers/transnational/>, accessed 6 December 2010.
Brüggemeier has noted the significance of these special statutes in responding to the
risks produced from industrialisation: see Brüggemeier (fn 28) 137–141.
30 JW Neyers, A Theory of Vicarious of Liability (2005) 43 Alberta Law Review 287, who
argues for an indemnity theory based on implied terms in the contract of employment.
31 Gesetz zur Modernisierung des Schuldrechts (Act on the Modernisation of the Law of

Authenticated
sion in a number of ways. The most obvious is to render it more and more
onerous to rebut the presumption of fault, thereby increasing the duties im-
posed on the employer,32 but the courts have also engaged in what Markesinis
and Unberath have termed ‘the escape into contract’,33 utilising notably § 278
BGB, which imposes strict liability on employers in contract law.34 Bearing in
mind that the German courts, possessing no doctrine of consideration, will
more readily find contracts than their common law counterparts, liability has
been extended to the pre-contractual period35 and to protect identifiable third
parties to the contract (contracts with protective effects towards third parties,
Verträge mit Schutzwirkung für Dritte).36 Alternatively the courts have found
‘organisational fault’ (Organisationsverschulden) under the personal fault pro-
vision of § 823 (1).37 The cumulative picture is therefore of a move away from
the presumption of fault to methods of imposing stricter forms of liability. It
may be questioned to what extent, in practice, this differs from vicarious
liability, despite the clear conceptual distinction drawn by § 831.38 Reinhard
Zimmermann has commented succinctly that ‘§ 831 BGB has turned out to be
a major source of embarrassment.’39
What conclusions may we draw from this brief comparative survey. First, that
Obligations) of 26 November 2001. The revised BGB was promulgated on 2 January

2002. See R Zimmermann, The New German Law of Obligations (2005).
32 Note parallel developments in Spanish law as a result of which commentators take the
view that the presumption of fault has been largely assimilated into a rule of vicarious
liability: F Werro/VV Palmer (eds), The Boundaries of Strict Liability in European Tort
Law (2004) 28.
33 Markesinis/Unberath (fn 20) 703.
34 ‘A debtor is responsible for the fault of his legal representative and of persons whom he
employs in performing his obligation, to the same extent as for his own fault.’
35 As in the famous linoleum case: Reichsgericht (RG) 7 December 1911, Entscheidungen
des Reichsgerichts in Zivilsachen (RGZ) 78, 239 (claimant and child hit by falling roll of
linoleum whilst shopping in a department store due to negligence of shop assistant:
department store found liable for sales assistant’s fault under § 278 BGB).
36 See BS Markesinis/H Unberath/A Johnston, The German Law of Contract: A Com-
parative Treatise (2nd edn 2006) 204–216.
37 Note also the development of § 31 BGB (liability of association for the damage to third
parties by executive committee, member of the executive committee or another con-
stitutionally destined representative). Special rules also exist for public servants under
§ 839 BGB (liability for breach of official duty) and under art 34 sent 1 of the Grund-
gesetz (German Constitution).
38 Wagner, for example, claims that contract, company law and Organisationsverschulden
have proved so successful in providing a means of circumventing the limits of § 831 that,
in practice, German law differs little from that found in France or England: Münch-
Komm/Wagner (fn 27) § 831 no 2.
39 R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition
(1996) 1125 f. Wagner nevertheless suggests that concerns exist as to the burden vicar-
ious liability in tort would impose on small businesses and private households: Münch-
Komm/Wagner (fn 27) § 831 no 4.

Authenticated
strict (or at least stricter) liability is the dominant approach. This point is
emphasised by the development of German law, moving away from the dis-
tinct wording of the Code to a number of means of imposing stricter liability
on employers. Secondly, this suggests that there is something fundamental
about strict liability in this context, seen as a necessary constituent of a legal
system of any market-based modern economy. Thirdly, such conclusions are
supported by recent proposals for harmonised principles of tort law. The Draft
Common Frame of Reference (DCFR) of 2009 (art VI–3:201)40 and Principles
of European Tort Law (PETL) of 2005 (art 6:102)41 both favour strict liability
and reject the exculpatory provision of the German model. The judicial activ-
ity of the German courts is thus a reflection that modern tort policy favours, in
this context, strict, not fault-based, liability.
With this in mind, we move to our final two questions which take us to the two
key limitations on vicarious liability: liability is confined to a particular rela-
tionship, usually that of employer and employee, and to acts committed ‘in the
course of employment’. These limitations cross legal systems, applying to
common and civil law. However, their application has not been, as we shall
see, without controversy and each legal system has had to adapt to changing
social and economic conditions, but also to changes in tort law policy favour-
ing arguments founded on risk-based liability and victim compensation, pro-
tecting, in particular, the most vulnerable in our society.
40 Art VI–3:201 DCFR (accountability for damage caused by employees and representa-
tives) provides:
‘(1) A person who employs or similarly engages another is accountable for the causation
of legally relevant damage suffered by a third person when the person employed or
engaged:
(a) caused the damage in the course of the employment or engagement; and
(b) caused the damage intentionally or negligently, or is otherwise accountable for the
causation of the damage.’
See C von Bar/E Clive (eds), Principles, Definitions and Model Rules of European
Private Law: Draft Common Frame of Reference. Full Edition (2009).
41 Art 6:102 PETL (liability for auxiliaries) provides:
‘(1) A person is liable for damage caused by his auxiliaries acting within the scope of
their functions provided that they violated the required standard of conduct.
(2) An independent contractor is not regarded as an auxiliary for the purposes of this
article.’
See European Group on Tort Law, Principles of European Tort Law. Text and Com-
mentary (2005). The text alone is also available online at <http://civil.udg.edu/tort/
Principles/>, accessed 6 December 2010.

Authenticated
II. Identifying the relationship giving rise to liability: Changing work

practices in the new global market
In requiring a particular relationship, typically that of employer and employee,

all systems focus on a relationship of subordination where the person causing
harm is working for another who is held responsible for his actions. The com-
mon law, French and German model all start from a test of control, be it termed
subordination juridique42 in France or Weisungsrecht (right to give instructions)
in Germany.43 Whilst such tests make sense in the basic employment model –
the employer tells the employee what to do – changes in employment practices
have diminished their utility. In a multi-national company or even a local super-
market, the person held responsible is unlikely to be the person actually man-
aging the employee in question. Reliance on middle-management has served to
undermine the ‘control’ test in that micro-management is left to foremen,
supervisors and line-managers rather than the ultimate employer personally.
Equally, the rise of the professional, skilled and able to work independently, has
further diminished the relevance of ‘control’, the role of surgeons in hospitals
providing a good example of the issues involved. A surgeon is engaged by a
hospital to treat patients, using his professional skills and training. The hospital
will provide facilities for the procedure, but it is the surgeon who decides how
the operation should proceed and instructs the nursing staff accordingly. A test
of control or subordination, or the right to give instructions, offers little assis-
tance in determining whether such staff are indeed ‘employees’, a fact which led
English, French and German courts initially to deny hospital liability in
this context.44 Although modern law has become more willing to classify
surgeons as employees45 or used other means, such as contract46 or company
42 The classic French case is Cour de cassation (Chambre civile) (Cass civ) 4 May 1937,
Recueil hebdomadaire Dalloz 1937.363 (Veuve Meyer).
43 See MünchKomm/Wagner (fn 27) § 831 no 14; Staudinger/Belling (fn 20) § 831 no 59 ff.
44 Hillyer v Governors of St Bartholomew’s Hospital [1909] 2 King’s Bench (KB) 820;
Cour d’appel (CA) Paris 16 January 1950 Recueil Dalloz (D) 1950.169 (‘[the hospital]
is with regard to surgeons, doctors or interns without authority or control concerning
the practice of their professional skills’: trans P Giliker); Bundesgerichtshof (BGH) 22
April 1980, Entscheidungen des Bundesgerichtshofs in Zivilsachen (BGHZ) 77, 74 =
Neue Juristische Wochenschrift (NJW) 1980, 1901.
45 For England, see Gold v Essex County Council [1942] 2 KB 293 (radiographer); Collins
v Hertfordshire County Council [1947] KB 598 (resident junior house surgeon); Cassidy
v Ministry of Health [1951] 2 KB 343 (assistant medical officer and house surgeon) and
Roe v Minister of Health [1954] 2 Queen’s Bench (QB) 66 (anaesthetist). For France, see
Cour de cassation (Chambre criminelle) (Cass crim) 5 March 1992, Bulletin des Arrêts
de la Chambre Criminelle de la Cour de Cassation (Bull crim) 1992 no 101, 255, Juris
Classeur Periodique (JCP) 1993 II 22013 note F Chabas, Revue Trimestrielle de Droit
Civil (RTD civ) 1993.137 obs P Jourdain.
46 In France, the key case to this effect is Cass civ 20 May 1936, Recueil periodique et critique
Dalloz (DP) 1936.1.87 rapp L Josserand, concl P Matter, note EP (arrêt Mercier).

Authenticated
law47 to impose liability (or simply utilises compensatory mechanisms which

do not distinguish between employees and independent contractors),48 the
surgeon example illustrates the fact that the autonomy and initiative often
expected of employees today renders the ‘control’ tests of the past unsatisfac-
tory in determining the scope of vicarious liability.
A further challenge exists in today’s market economies. The traditional view of
the young adult obtaining a job for life has disappeared in what has been
described as the ‘disintegration’ of the vertical employment relationship.49
Although this problem is not new – use of home-workers and casual staff
precedes the industrial revolution50 – the growing use of temporary or agency
staff instead of permanent employees has presented challenges both for em-
ployee protection legislation and the scope of vicarious liability. Should
agency staff be treated as ‘employees’, préposés or Verrichtungsgehilfen, lead-
ing to liability being imposed on the employer or are they independent con-
tractors outside the scope of this form of liability? The situation is further
complicated by the practice of many large companies and public bodies of
‘contracting out’ services such as security or cleaning and replacing permanent
employees with cheaper temporary alternatives. The facts of the English case
of O’Kelly v Trusthouse Forte51 present a good example of the difficulties
which may arise. Here, a hotel employed casual waiting staff in addition to
its permanent staff. Such staff worked on a regular basis exclusively for the
hotel, but were nevertheless held not to be classified as ‘employees’ due to the
absence of a legally enforceable contract of employment. A guest burnt by the
negligence of a waiter serving hot soup would therefore be faced with a di-
lemma: is the waiter casual staff and therefore only personally liable or is the
guest ‘fortunate’ enough to be injured by a permanent member of staff and
47 Liability may be imposed in German law under company law (§ 31 BGB) by treating the
Chefarzt (senior doctor) as the ‘organ’ of the clinic: see BGH 22 April 1980, BGHZ 77,
74; MünchKomm/Wagner (fn 27) § 831 no 45; Staudinger/Belling (fn 20) § 831 no 66.
48 See, for England, National Health Service (NHS) Circular: HSG (96) 48: NHS Indem-
nity Arrangements for Handling Clinical Negligence Claims against NHS Staff (1996)
(discussed by K Syrett, Institutional Liability, in: A Grubb/J McHale/J Laing (eds),
Principles of Medical Law (3rd edn 2010) 7.108–7.112) and, for France, art L1142-2
Code of Public Health: ‘Insurance subscribed by institutions, services and organisations
mentioned in the first paragraph covers the employees who have acted within the limits
of their mission which is fixed for them despite the fact that they have independence in
the practice of their medical skill.’
49 See H Collins, Independent Contractors and the Challenge of Vertical Disintegration to
Employment Protection Laws (1990) 10 Oxford Journal of Legal Studies 353 and A
Stewart, Redefining Employment? Meeting the Challenge of Contract and Agency
Labour (2002) 15 Australian Journal of Labour Law (AJLL) 235.
50 See J Schwarzkopf, The Social Condition of the Working Class, in: S Berger, A Com-
panion to Nineteenth-Century Europe, 1789–1914 (2006).
51 [1984] 1 QB 90.

Authenticated
therefore able to bring an action against the financially superior (and insured)
hotel? Such a position ill serves the goals of victim protection and compensa-
tion and, of course, places a burden on the victim to identify precisely which
member of staff caused the injury (not always an easy task where all staff wear
the same uniform and have no other means of identification).
Comparative analysis is capable, however, of identifying alternative ap-
proaches in this context. When one examines the response of the civil and
common law courts to the changing nature of employment relationships, two
alternatives stand out: adopting a more flexible interpretation of the control
test, or favouring a multi-faceted test which examines the whole context of the
working relationship. Which, it may be asked, best responds to the changing
nature of employment relations?
A. A more flexible interpretation of the control test52
The approach of civil law has been to adopt a more flexible interpretation of
subordination juridique or Weisungsrecht. In France, for example, although
the test based on authority and subordination remains (and such authority
must be real and not merely apparent),53 more recent case-law has moved to a
more flexible interpretation.54 The power to give instructions need not have a
contractual55 or legal basis, but may simply exist as a matter of fact. Indeed, it is
no longer necessary to prove that such a power has been exercised, provided
that the employer or commettant is deemed to possess authority over the
employee or préposé.56 Further, and importantly, one can have authority over
52 See, generally, H Slim, Recherches sur la responsabilité du fait d’autrui en droit comparé
(2000) Responsabilité civile et assurance (Resp civ et assur), hors série, 52, especially
nos 3–8. Note that the DCFR (art VI–3:201) and PETL (art 6:102) also favour the
broader civilian approach of imposing liability for ‘employees, similarly engaged others
and representatives’ (DCFR) and ‘auxiliaries’ (PETL), an ‘auxiliary’ being defined as ‘an
employee, but also anyone willing to help, acting under the supervision of the liable
party’ (see European Group on Tort Law (fn 41) 115). The notes to the DCFR also
conclude that ‘[t]he requisite for liability for another is always the minimum abstract
possibility of directing and supervising their conduct through binding instructions’ (see
von Bar/Clive (fn 40) 3455).
53 Cass crim 15 February 1972, D 1972.368, JCP 1972 II 17159 note D Mayer, RTD civ
1973.350 obs G Durry.
54 See eg Cass crim 7 November 1968, D 1969 somm 34.
55 The existence of remuneration is not a condition (Cass civ 2, 9 November 1972, Bull civ
II no 275, Cass crim 14 June 1990, Bull crim 1990 no 245), but may nevertheless be
indicative of the existence of a lien de préposition: Cass civ 2, 26 October 2000, JCP 2000
IV 2834.
56 See eg Cour de cassation (Chambre commerciale) (Cass com) 26 January 1976, D
1976.449 rapp J Merimée; Cass civ 2, 12 January 1977, D 1977 IR 330 obs C Larroumet:
‘il suffit qu’il ait eu la possibilité de donner au préposé des ordres ou des instructions sur
la manière de remplir ses fonctions’ (emphasis added).

Authenticated
a subordinate, despite the absence of technical knowledge.57 Similarly German

law has moved away from requiring a detailed right of control: ‘it is sufficient
that the employer can at any time determine the scope and duration of the
tasks of the employee, restrict them or terminate them.’58 As noted by van
Gerven, Lever and Larouche, the focus of the test is no longer on the fact of
instructing the employee how to do his job, but the possibility of being able to
control the employee’s actions.59 On this basis, liability may be extended to
independent contractors and traders, depending on the circumstances under
which they work and whether a general right to give instructions has been
retained. Legeais notes that, despite the different wording, the French and
German courts in fact utilise similar criteria to determine the existence of an
employer-employee relationship.60
Yet flexibility may lead to uncertainty. Viney and Jourdain in their leading
textbook go as far as to suggest that the more flexible approach demonstrated
in recent case-law has permitted the courts to focus not on the power to give
instructions, but on whether the performance in question was for the purposes
of (and to the profit of) the commettant.61 In reality, the reciprocal relationship
of subordination and authority provides merely a formula; its interpretation is
to be determined by the courts. More significantly in France, the courts have
taken the opportunity to utilise this simple formula to impose liability under
art 1384(5) far beyond the traditional employer-employee relationship. On
this basis, relatives or even casual acquaintances given a designated task may
be said to be ‘subordinate’ to the other. In a case of 1971,62 for example, a nurse
running a first aid station asked a volunteer helper, whom she knew did not
have a driving licence, to use her vehicle for an errand. The criminal chamber
of the Cour de cassation found that she had given the volunteer orders or
instructions on the manner of fulfilling this task, albeit without payment
and on a temporary basis. As the note to the decision comments, liability
57 Cass civ 2, 12 January 1977, D 1977 IR 330 obs C Larroumet.

58 BGH 30 June 1966, BGHZ 45, 311 = NJW 1966, 1807, 1808 (translation from W van
Gerven/J Lever/P Larouche, Tort Law (2000) 497). Although the 1966 case itself would
be decided differently today (due to changes in the availability of damages for non-
material injury in contract law and the extension of § 31 BGB to partnerships pursuant
to § 705 BGB insofar as they participate in legal business), it still remains good authority
for the definition of Verrichtungsgehilfe. See also BGH 12 June 1997, Neue Juristische
Wochenschrift – Rechtsprechungsreport (NJW-RR) 1998, 250, 251 ff, Staudinger/Bel-
ling (fn 20) § 831 no 120 ff and MünchKomm/Wagner (fn 27) § 831 no 14.
59 Van Gerven/Lever/Larouche (fn 58) 497.
60 R Legeais, L’évolution de la responsabilité civile des maîtres et commettants du fait de
leurs préposés en droit français et en droit allemand, in: P Couvrat (ed), Mélanges J
Savatier (1992) 303, 305.
61 Viney/Jourdain (fn 25) no 792. But contrast Cass civ 2, 17 December 1964, JCP 1965 II
14125 note R Rodière (‘la notion de profit n’est pas déterminante’).
62 Cass crim 25 May 1971, D 1971 somm 168.

Authenticated
under art 1384(5) arose due to the right of the nurse to give the helper orders.
Similarly, an electoral candidate was held liable when one of his supporters got
into a fight with a supporter of the other candidate, which led to that other’s
death.63 Liability may thus arise between husband and wife,64 or even friends.65
There is a clear argument that this takes flexibility too far, extending strict
liability to uninsured parties who do not anticipate legal consequences from a
mere request for assistance.66 It is notable that Viney and Jourdain (leading
advocates of risk-based liability in tort) have nevertheless sought to emphasise
that ‘this fringe of questionable case-law remains, all the same, relatively nar-
row.’67 The majority of cases in French and German law thus continue to focus
on the employer-employee relationship.68
The civil law experience nevertheless suggests that merely attempting a more
flexible interpretation of the control test may be problematic, leading to un-
certainty and the risk of a vast expansion of liability. The common law, in
contrast, recognising the weaknesses of the ‘control’ test, has favoured a multi-
faceted approach, examining the totality of the parties’ relationship. Whilst
such a test focuses on the realities of the parties’ working relationship, as will
be shown below, it remains questionable to what extent this test is capable of
adapting to economic changes in the structure of the workplace.
B. The ‘economic reality’ test
The common law courts generally favour a broader test in which control is
only one factor out of many in determining whether a contract of employment
exists.69 As Cooke J commented in the leading English case of Market Inves-
63 Cass crim 20 May 1976, Recueil de la Gazette de Palais (Gaz Pal) 1976.2.545 note YM;
RTD civ 1976.786 obs G Durry.
64 See Cour de cassation (chambre des requêtes) (Cass (req)) 12 July 1887, S 1887.1.384;
Cass civ 8 November 1937, Gaz Pal 1938.1.43; Cass crim 27 December 1961, Bull crim
no 563, 1074; D 1962 somm 75, JCP 1962 II 12652; Cass civ 1, 17 July 1979, D 1980 IR
114. See also Cass civ 2, 28 April 1955, Bull civ II no 219, 132 (son-in-law being préposé
of father-in-law) and Cass civ 20 July 1970, Gaz Pal 1970 2 somm 57 (father and son).
65 Cass (req) 1 May 1930, DP 1930.1.137 note R Savatier.
66 For criticism, see N Molfessis, La jurisprudence relative à la responsabilité des commet-
tants du fait de leurs préposés ou l’irrésistible enlisement de la Cour de cassation, in: H
Mazeaud/D Mazeaud/J-M Olivier/J-B Bladier (eds), Mélanges Gobert (2004) 495, 509–
512.
67 Viney/Jourdain (fn 25) no 796 (trans P Giliker).
68 In German law, despite the loose terminology, there are few instances of the application
of § 831 to casual relationships: see van Gerven/Lever/Larouche (fn 58) 499; Münch-
Komm/Wagner (fn 27) § 831 no 15; but see BGH 28 April 1992, Versicherungsrecht
1992, 844, 845 (daughter being employee of her mother).
69 Contrast with the ‘integration’ test, forwarded by Lord Denning, for which there is

Authenticated
tigations v Minister of Social Security,70 ‘the most that can be said is that control
will no doubt always have to be considered, although it can no longer be
regarded as the sole determining factor.’ In this case, finding that no compre-
hensive test could be found, the judge stated:71
[T]he fundamental test to be applied is this: ‘Is the person who has engaged himself to perform
these services performing them as a person in business on his own account?’ If the answer to that
question is ‘yes’, then the contract is a contract for services. If the answer is ‘no’, then the contract
is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be
compiled of the considerations which are relevant in determining that question, nor can strict rules
be laid down as to the relative weight which the various considerations should carry in particular
cases. The most that can be said is that control will no doubt always have to be considered . . . and
that factors which may be of importance are such matters as whether the man performing the
services provides his own equipment, whether he hires his own helpers, what degree of financial
risk he takes, what degree of responsibility for investment and management he has, and whether
and how far he has an opportunity of profiting from sound management in the performance of his
task.
This test provides a list of relevant factors to be applied by the court on a case-
by-case basis. The economic reality is that the worker is either operating
independently for his own profit, or tied to a particular employer and thus
classified as an ‘employee’. The problem, of course, is to apply this test, stated
in 1968, to the uncertainties of the current employment market. Does a tem-
porary worker act at his own risk or does he tick a sufficient number of the
Market Investigations boxes to qualify as an ‘employee’? How does such a test
apply to the contracting-out of key services via agency or casual staff? A
further difficulty arises from the practice of the common law courts to favour
a generic concept of ‘employee’ which crosses all areas of law. Courts will,
therefore, refer indiscriminately to authority arising in the field of taxation,
workers’ compensation, social security law, health and safety legislation, and
discrimination law in determining the existence of a contract of employment.72
some lingering support: Stevenson Jordan & Harrison Ltd v MacDonald & Evans
[1952] 1 Times Law Reports 101.
70 [1969] 2 QB 173, 185.
71 Ibid 184 f. In the case itself, Cooke J held that part-time interviewers working under
short-term contracts for a market research company were employees. Their employers
exercised extensive control over their work and the limited discretion given to employ-
ees to decide when they would work, and the ability to work for others during the
relevant period, were not inconsistent with the existence of a series of contracts of
employment. The test has been applied in Australia (Stevens v Brodribb Sawmilling
Co Pty Ltd (1986) 160 CLR 16) and Canada (671122 Ontario Ltd v Sagaz Industries
Canada Inc [2001] 2 Supreme Court Reports, Canada (SCR) 983, (2001) 204 DLR (4th)
542).
72 See D Howarth, Textbook on Tort (1995) 636 (‘cases about social security law and unfair
dismissal are cited freely and without embarrassment in tort cases without regard to the
importance of the questions of what social security and tax law are trying to achieve and
whom unfair dismissal law is trying to protect’). The need for caution was, however,

Authenticated
Whilst this practice has been questioned for failing to appreciate the signifi-
cance of the context in which the issue arises,73 it nevertheless continues, as
seen in the two leading common law cases examined below, where no attention
is paid to the fact that the status of the worker requires resolution, in the
former, for tax purposes, but in the second, to ascertain whether vicarious
liability should apply. Disregarding, therefore the context, the cases – one
English, one Australian – focus on the same factual scenario. A worker is hired
to deliver goods for a company operating a delivery service, but acting on
request and using the worker’s own personal transportation. In both cases, the
worker wore the company uniform and was paid either by fixed rates or by
mileage per job. The courts came, however, to different conclusions as to the
status of the worker.
C. Owner-driver v bicycle courier: The application of the

‘economic reality’ test
In the first case, Ready Mixed Concrete (South East) Ltd v Minister of Pensions
and National Insurance,74 the English court found an owner-driver, delivering
concrete for the defendant, to be an independent contractor. This was despite
the fact that the vehicles were obtained via a finance organisation associated
with the company, painted in company colours, and that the driver, obliged to
wear the company uniform, had to obtain the company’s permission to hire a
replacement driver and was prohibited from operating as a carrier of goods
except under contract. In contrast, however, the drivers did own their own
vehicles which they maintained at their own expense and were paid at mileage
rates under a contract which expressly declared them to be independent con-
tractors. On this basis, McKenna J held that the owner-drivers were ‘small
business men’, who owned their own assets and incurred both the chance of
profit and the risk of loss.
Such an approach may be contrasted with that of the High Court of Australia
in Hollis v Vabu.75 This was a genuine vicarious liability case: Mr Hollis being
injured by a negligent bicycle courier identifiable only by his uniform which
bore the name of the owners of the courier business–(the defendant). Here
again there were factors supporting both independent contractor and employ-
ee status. The couriers were paid by fixed rates per job, required to use their
discussed in Lane v Shire Roofing Co [1995] Personal Injuries and Quantum Reports
417, 421 per Henry LJ.
73 See E McKendrick, Vicarious Liability and Independent Contractors – a Re-examina-
tion (1990) 53 Modern Law Review (MLR) 770; R Kidner, Vicarious Liability: for
Whom should the Employer be Liable (1995) 15 Legal Studies (LS) 47.
74 [1968] 2 QB 497, 524.
75 (2001) 207 CLR 21.

Authenticated
own bicycles and were able to deal with the company as sole traders or mem-
bers of a partnership. However, they wore uniforms, were provided with radio
equipment by the company and were allocated jobs by radio. The company
provided strict instructions concerning dress, appearance, language, delivery
procedures and dealing with clients, and undertook the provision of insurance
for the couriers (deducting the amounts from their wages). The majority of the
High Court of Australia,76 in contrast to Ready Mixed Concrete, found the
couriers to be employees of the company for whom it was vicariously liable.
Its reasoning is revealing. While under the economic reality test no one factor
is determinative, emphasis was placed on the high degree of control exercised
by Vabu over unskilled labourers.77 The High Court equally contrasted the
degree of investment involved in purchasing a bicycle (useable for leisure
activities as well) with that of a large lorry.78 More significantly, the majority
here focussed on the fact that the uniformed couriers were presented to the
public as emanations of Vabu and no measures had been taken to render the
couriers personally identifiable, despite the fact that complaints had previ-
ously been received of courier misconduct. The policy ground of deterrence
was thus relied upon as a factor in favour of finding a relationship giving rise to
vicarious liability, thereby encouraging the introduction of greater safety
measures to reduce the number of accidents and the risks to the community
as a whole.79
Most importantly, the High Court recognised that the approach to the rela-
tionship question must focus on the role of vicarious liability in modern
employment relations. As McHugh J commented:80
Rather than attempting to force new types of work arrangements into the so-called employee/
independent contractor ‘dichotomy’ based on medieval concepts of servitude, it seems a better
approach to develop the principles concerning vicarious liability in a way that gives effect to
modern social conditions. . . The contours of rules and principles [must] expand and contract with
experience and changes in social conditions. The law in this area has been and should continue to
be ‘sufficiently flexible to adapt to changing social conditions’.
One underlying theme of Hollis, therefore, is the need for the law to evolve to
76 Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in a joint judgment. McHugh J
concurred in the result but not the reasoning. Callinan J dissenting.
77 ‘Vabu’s whole business consisted of the delivery of documents and parcels by means of
couriers. Vabu retained control of the allocation and direction of the various deliveries.
The couriers had little latitude’: Hollis v Vabu, para 57.
78 McHugh J, however, indicated the vulnerability of this argument, having noted that
some couriers used by Vabu travelled by motor vehicle rather than bicycle (Hollis v
Vabu, para 71).
79 Hollis v Vabu, para 53, ground 4, relying on McLachlin J’s ruling in Bazley v Curry
(1999) 174 DLR (4th) 45, para 32 f.
80 Hollis v Vabu, para 72 quoting (at the end of the passage) Mason J in Stevens v Brodribb
Sawmilling Co Pty Ltd (1986) 160 CLR 16, 28 f.

Authenticated
accommodate contemporary notions of employment relations. Courts should

thus ensure that the common law test is capable of adapting to changing social
conditions.81
What conclusions may we draw from this comparative perspective? First, that
all systems have experienced similar difficulties in adapting existing tests to the
realities of the modern employment market. Secondly, flexibility comes at a
price and one might question whether the French extension to family and
friends can be regarded as a legitimate extension of the doctrine. Thirdly, an
obvious tension exists between the English focus on the contract of employ-
ment and the civilian preference for the broader terms of commettant/préposé
and Geschäftsherr/Verrichtungsgehilfe (rather than the narrower and more
precise employeur/employé and Arbeitgeber/Arbeitnehmer). The former
terms are more inclusive and expressly not limited to the employment context.
This renders it far easier for civilian systems to respond to changes in employ-
ment practices and include agency staff, where appropriate, within the defi-
nition of préposé and Verrichtungsgehilfe. Finally, Hollis v Vabu informs us
that there is room for manoeuvre within the common law approach, even if the
focus remains on the employment contract and that consideration of policy
factors applicable to vicarious liability might assist in determining whether the
requisite relationship exists. A logical extension of this principle would be to
view the ‘employment’ factor of common law vicarious liability as distinct
from the definition of ‘employee’ in other areas of law. The common law
courts’ ongoing preference for a general definition of ‘employee’, applicable
in all areas of law, has quite correctly been criticised as unrealistic,82 ignoring
the distinct policy factors arising in the law of tort as well as changing stat-
utory definitions of what is meant by ‘employee’, notably in the labour-law
context. Recognition of the need for a definition of the employment relation-
ship that is specific to vicarious liability is, in this author’s view, a necessary
development to give coherency to the modern doctrine of vicarious liability at
common law.83
81 The majority view has been labelled ‘relatively conservative’ by one commentator for
adhering to the traditional contract-of-employment analysis, although he does concede
that some of the statements in Hollis may sow the seeds for an approach that is rooted
more firmly in the economic realities of work relationships: A Stewart, Redefining
Employment? Meeting the Challenge of Contract and Agency Labour (2002) 15 AJLL
235, 245.
82 See McKendrick (1990) 53 MLR 770 and Kidner (1995) 15 LS 47, who both argue that
the courts should recognise that the status of workers may vary according to the context
in question. See also L Friedlander, What has Tort Law got to do with it? Distinguishing
between Employees and Independent Contractors in the Federal Income Tax, Employ-
ment Insurance, and Canada Pension Plan Contexts (2003) 51 Canadian Tax Journal
1467.
83 For judicial support, see Brook Street Bureau (UK) Ltd v Dacas [2004] EWCA Civ 217,
[2004] Industrial Case Reports 1437, paras 2 (Mummery LJ) and 72 (Sedley LJ).

Authenticated
III. Determining the extent of liability: Should employers be held strictly

liable for the criminal activities of their employees?
By the late 20th century, all modern legal systems had faced the question of
how far the doctrine of vicarious liability in tort should extend to meet the goal
of victim compensation. For the common law courts, a number of child-abuse
scandals where children had been abused by the employees hired to care for
them brought into particular focus the question of how one determined the
‘course of employment’ requirement. Did such heinous acts automatically fall
outside the scope of the doctrine or would concerns as to social justice –
ensuring that compensation is accessible to the most vulnerable in society –
trump any narrow legalistic definition of ‘course of employment’? The re-
sponse of the common law courts highlights the underlying tension between
the demands of conceptual clarity and social policy: is it possible to extend the
doctrine without distorting its conceptual framework? The resultant law has
been criticised for its uncertainty by academics84 and the courts alike.85 In view
of the unsettled state of the law, a comparative perspective becomes particu-
larly useful. One may assume – correctly – that civilian, as well as common
law, systems have faced the same basic questions, particularly in view of the
similar legal framework outlined above. It is logical that the question of defin-
ing ‘course of employment’ will equally arise in relation to the art 1384(5)
requirement that the préposé act dans les fonctions auxquelles ils les ont em-
ployés (in the functions for which they have been employed) or, indeed, in
determining when a Verrichtungsgehilfe is acting in Ausführung der Verrich-
tung (when carrying out his or her tasks) under § 831 BGB. In view of the
current state of German law where, in reality, § 831 is often marginalised in
favour of other means of ensuring liability, the French model is more apposite
here. Indeed, French law, having engaged in a debate on this very point for
almost thirty years between 1960 and 1988, provides an excellent comparison
in determining the most appropriate means of interpreting and applying this
particular element of the doctrine.
A. Common law uncertainty: A doctrine in search of conceptual coherence
For English tort lawyers, the starting point is the House of Lords’ decision in
Lister v Hesley Hall Ltd.86 Here their Lordships accepted that the traditional
84 See eg P Giliker, Rough Justice in an Unjust World (2002) 65 MLR 269; C McIvor, The
Use and Abuse of the Doctrine of Vicarious Liability (2006) 35 Common Law World
Review 268; PJ Yap, Enlisting Close Connections: a Matter of Course for Vicarious
Liability? (2008) 28 LS 197.
85 Judge LJ in Mattis v Pollock (t/a Flamingo’s Nightclub) [2003] EWCA Civ 887, [2003] 1
WLR 2158, para 19 described the test for ‘course of employment’ as ‘deceptively simple’.
86 [2002] 1 AC 215.

Authenticated
‘Salmond test’87 for course of employment, adopted throughout the common

law legal world,88 would not extend liability to heinous torts such as child
abuse.89 Nevertheless, their Lordships found that the demands of distributive
justice required a new test whereby such acts would be within the course of
employment when they were ‘closely connected’ to the employee’s duties (the
‘close connection’ test). In the case itself, the owners of a privately-operated
children’s home, caring for boys with emotional and behavioural difficulties,
were found vicariously liable for acts of sexual abuse by its warden. His con-
duct was accepted to be ‘closely connected’ to his duties, being ‘inextricably
interwoven with the carrying out by the warden of his duties in Axeholme
House.’90 In so doing, their Lordships acknowledged the assistance given by
the ‘luminous and illuminating judgments of the Canadian Supreme Court in
Bazley v Curry and Jacobi v Griffiths. Wherever such problems are considered
in future in the common law world these judgments will be the starting
point’,91 although adding further ‘[o]n the other hand, it is unnecessary to
express views on the full range of policy considerations examined in those
decisions.’92 The Canadian Supreme Court in these two decisions faced claims
for vicarious liability in relation to sexual abuse by an employee of a non-
profit organisation which operated residential care facilities for the treatment
of emotionally troubled children (Bazley)93 and by the programme director of
a boys’ and girls’ club encouraged to form friendships and a positive rapport
with the child members (Jacobi).94 McLachlin J, giving the leading judgment in
Bazley, focused on the risk arising from entrusting vulnerable persons to the
care of employees and the positive deterrent impact of liability. The question
thus became: Is there a significant connection between the creation or en-
hancement of a risk and the wrong which results? Where this is so, vicarious
liability serves the policy considerations of provision of an adequate and just
remedy, and deterrence.95
87 After JW Salmond, The Law of Torts (1907) 83 (now found in RFV Heuston/RA
Buckley (eds), Salmond & Heuston on the Law of Torts (21st edn 1996) 443). This test
states: ‘A master is not responsible for a wrongful act done by his servant unless it is
done in the course of his employment. It is deemed to be so done if it is either (1) a
wrongful act authorised by his master, or (2) a wrongful and unauthorised mode of
doing some act authorised by the master.’
88 This test was adopted by Canada: see Lockhart v Canadian Pacific Railway Co [1942]
AC 591, 599 and WW Sales Ltd v City of Edmonton [1942] SCR 467. For Australia, see
Deatons Pty Ltd v Flew (1949) 79 CLR 370, 385.
89 See Trotman v North Yorkshire County Council [1999] Local Government Reports 584.
90 [2002] 1 AC 215, para 28 (Lord Steyn).
91 Ibid, para 27 (Lord Steyn).
92 Ibid.
93 Bazley v Curry (1999) 174 DLR (4th) 45.
94 Jacobi v Griffiths (1999) 174 DLR (4th) 71.
95 Bazley v Curry, para 41.

Authenticated
Two comments may be made here. First, although the McLachlin J test has
been adopted in Canada,96 its application is not without uncertainty. McLa-
chlin J found herself in the minority in Jacobi where the majority rejected
vicarious liability, while applying the McLachlin test. Secondly, as seen
above, the English House of Lords rejected the ‘policy’ element of the test
and the majority of the leading Australian case of New South Wales v Lep-
ore97 has equally rejected the McLachlin risk test.98 Divergence thus exists as
to the interpretation of the ‘close connection’ test – a factor underlined by the
fact, that in giving four separate judgments in Lister, the House of Lords put
forward at least two different versions of this test. Most notably one may
contrast Lord Steyn’s test (were the employee’s torts so closely connected
with his employment that it would be fair and just to hold the employers
vicariously liable?)99 with that of Lord Hobhouse (has the employer assumed
a relationship to the claimant which imposed specific duties in tort upon the
employer which he entrusted to his employee?).100 The former test is con-
ducive to concerns of distributive justice, whilst the latter seems to move
towards a form of personal liability on the employer who has personally
assumed a direct relationship with the victim himself. Subsequent case-law
has favoured the approach of Lord Steyn,101 but nevertheless found the test
‘sometimes. . . easier to state than. . . to apply.’102 Uncertainty also exists in the
Australian application of the ‘course of employment’ test. In considering
claims for compensation arising from allegations of sexual abuse by
school-teachers, the majority of the High Court of Australia in Lepore con-
cluded that such acts may be within the course of employment,103 but never-
theless diverged considerably as to the appropriate test, ranging from estop-
pel (Gaudron J) to an acceptance of the reasoning in Lister and Bazley (Kirby
J). Justice of Appeal Ipp, attempting to apply the ratio of Lepore subse-
quently, resolved that the safest course was simply to apply all the majority
formulations to the facts of each case: ‘The answers that this course produces
96 See, recently, Broome v Prince Edward Island [2010] Supreme Court of Canada (SCC)
11, [2010] 1 SCR 360.
97 (2003) 212 CLR 511.
98 Although it did receive support from Kirby J and consideration by Gleeson CJ.
99 Lister, para 28.
100 Lister, para 54.
101 See Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2
AC 366, para 23 (with whom Lord Slynn and Lord Hutton agreed) and Majrowski v
Guy’s and St Thomas’s NHS Trust [2006] UKHL 34, [2007] 1 AC 224, para 10.
102 N v Chief Constable of Merseyside Police [2006] England & Wales High Court
(EWHC) 3041 (QB), [2006] Police Law Reports 160, para 13 (Nelson J).
103 Callinan J dissenting. McHugh J, in contrast, suggested that liability might be imposed
on the basis of a non-delegable duty on the employer (an argument rejected by the
majority who favoured the vicarious liability analysis).

Authenticated
will assist in resolving the issue, particularly if the answers, or a substantial

majority of them, are the same.’104
In view of such uncertainty, the next section will examine what assistance a
comparative lawyer may draw from the parallel debate in French law.
B. The French law debate: Abus de fonctions
The debate of the most senior French private law courts between 1960 and
1988 as to the scope of the phrase dans les fonctions auxquelles ils les ont
employés goes to the very heart of the role of liability for the acts of others
(fait d’autrui) in providing compensation for victims of tortious behaviour.
Whilst the courts in the early part of the twentieth century had interpreted the
term generously, from the 1950s an increasing divergence could be observed
between the approach of the civil and criminal chambers of the Cour de
cassation.105 While the criminal chamber continued the liberal approach of
the past, the civil chambers, notably the second chamber, favoured a more
restrictive approach which excluded liability where the injury arose due to
an abus de fonctions (abuse of function), that is, where the employee was acting
for his own ends. On four occasions, attempts were made by the plenary
assembly of the Court to reconcile these approaches (in 1960,106 1977,107
1983108 and 1985109) but with limited success, the criminal courts continuing
to adopt a more liberal approach.
104 Sprod v Public Relations Orientated Security Pty Ltd [2007] New South Wales Court
of Appeal (NSWCA) 319, para 54.
105 Both the civil and criminal courts in France can deal with claims for compensation
arising from torts which are also crimes and so give rise to parallel jurisdiction. Con-
trast the civil case of Cass civ 2, 1 July 1954 (2 cases), D 1954.628 with the criminal
ruling in Cass crim 20 March 1958, Bull crim no 280, 484.
106 Cour de cassation (chambres réunies) 9 March 1960, D 1960.329 note R Savatier, JCP
1960 II 11559 note R Rodière, Gaz Pal 1960.1.313 (employee not acting within his
functions when, without a driving licence, he ‘borrowed’ his employer’s van in his
absence and later crashed through a shop window).
107 Cour de cassation (Assemblée plénière) (Cass (Ass plén)) 10 June 1977, D 1977.465
note C Larroumet, JCP 1977 II 18730 concl P Gulphe, Répertoire du notariat Defré-
nois (Def) 1977.1517 note JL Aubert, RTD civ 1977.74 obs G Durry (employee not
acting within functions when negligently drove his delivery van on a Saturday night
injuring (and killing one of) his friends, as forbidden to use the van outside work).
108 Cass (Ass plén) 17 June 1983, JCP 1983 II 20120 concl PA Sadon, note F Chabas, D
1984.134 note D Denis, RTD civ 1983.749 obs G Durry (again rejecting liability where
lorry-driver was legitimately driving his lorry, but trying to steal a cargo of oil destined
for a client, and, suspecting that he was being followed, panicked and dumped the fuel
in a quarry which led to environmental pollution).
109 Cass (Ass plén) 15 November 1985, D 1986.81 note JL Aubert, JCP 1986 II 20568 note
G Viney, RTD civ 1986.128 obs J Huet (rejecting liability where employee had delib-

Authenticated
The decisive case of May 1988110 had a two-fold impact on French law. First, it
set a new legal test that liability for the acts of others will be presumed to exist
unless the act of the employee is: (i) without authorisation (sans autorisation),
(ii) for his own ends (à des fins étrangères à ses attributions) and (iii) outside the
normal duties of his job (hors de ses fonctions).
In so doing, the Assemblée plénière moved to the traditional position of the
criminal chamber, adopting its focus on victim protection.111 Liability, in fu-
ture, would thus arise when the job gave the opportunity and means for the
tort to take place.
Secondly, this decision reflects the result of a policy debate in French law as to
the rationale for strict liability in this context. Is it to guarantee the victims that
compensation will be available?112 Or based on presumed fault by the employ-
er himself in hiring a tortious employee?113 Or loss distribution or risk?114 In
adopting a broad test, the 1988 decision recognises the dominance of risk-
based reasoning in justifying the imposition of strict liability, here under-
pinned by the theory of risk and profit (théorie du risque-profit), that is, if
you profit from another’s actions, you must accept the risks associated with
these actions. This reflects parallel developments in public law,115 whereby
public bodies are generally held strictly liable for state employees committing
faute de service (excluding only faute sans rapport avec le service),116 together
erately set fire to the factory he was employed to protect, supposedly to highlight
insufficient security measures).
110 Cass (Ass plén) 19 May 1988, D 1988.513 note C Larroumet, Gaz Pal 1988.2.640 concl
M Dorwling-Carter, Def 1988.1097 note JL Aubert, RTD civ 1989.89 obs P Jourdain
(liability where préposé had defrauded a client whilst advising her on insurance policies
on behalf of the defendant company).
111 F Terré/P Simler/Y Lequette, Droit civil: Les obligations (10th edn 2009) no 835.
112 See B Starck/H Roland/L Boyer, Obligations: Responsabilité délictuelle (5th edn 1996)
nos 893–897.
113 H Mazeaud/L Mazeaud/J Mazeaud/F Chabas, Leçons de droit civil, tome 2, vol 1: F
Chabas, Obligations. Théorie générale (9th edn 1998) no 484.
114 G Viney/P Jourdain (fn 25) nos 791-1 and 808. André Tunc, the great French advocate
of risk-based liability, went so far as to suggest that the simplest rule would be to render
the employer strictly liable for all torts taking place during working hours, avoiding
harmful litigation and legal uncertainty: A Tunc, Les problèmes contemporains de la
responsabilité civile délictuelle (1967) 19 Revue Internationale de Droit Comparé 757,
775.
115 For the influence of public law on French private law development, see B Puill, Les
fautes du préposé: s’inspirer de certaines solutions du droit administratif, Juris-Class-
eur Périodique Gallimard (JCP G) 1996 I 3939.
116 See M Paillet, Faute de Service: Notion, Jurisclasseur Administratif, fascicule 818, J
Waline, Droit administratif (22nd edn 2008) no 458 ff and Tribunal des conflits, 30 July
1873, Recueil des arrêts du Conseil d’Etat, 117; DP 1874, 3, 5 concl David; Grands
arrêts de la Jurisprudence Administrative, no 2) (l’affaire Pelletier). This signifies that
the victim will almost always be assured of compensation from the administration.

Authenticated
with broad interpretations of art 1384(1)117 and (4)118 of the Civil Code. This
theory is supported by a background of liability insurance and legislation
which requires insurers to meet claims for damage caused by both negligent
and intentional misconduct for which the employer is held liable under
art 1384.119
What conclusions may be drawn, then, from this comparative study? The
extension of liability in French law presents us with one example of how
vicarious liability can operate, advocating greater concern for victim compen-
sation, embracing the arguments of loss distribution, deterrence and risk,
premised on a background of insurance provision. In contrast, while the com-
mon law has equally considered these policy arguments, the courts have taken
other factors into consideration such as the level of wrongdoing (rendering the
courts more willing to impose liability for negligence than intentional mis-
conduct), scepticism as to the deterrent effect of strict liability,120 and a con-
tinuing focus on case-by-case development of the law. It is noticeable that the
proposals for European harmonisation have also yet to reach consensus on the
correct approach. While art 6:102 PETL adopts a similar position to French
law (‘acting within the scope of their functions’),121 art VI–3:201 DCFR adopts
a narrower test (‘in the course of the employment or engagement’), the com-
mentary indicating that ‘[t]he demarcation depends on whether the person
acting was working within the employer’s sphere of influence or was exclu-
sively pursuing personal aims. . . Damage only lies outside the context of
accountability. . . where the employee pursues entirely personal interests on
occasion.’122
It is also important to recognise that, while the French approach is more
explicitly expansive, it is not without criticism. Commentators have high-
117 Cass (Ass plén) 29 March 1991, D 1991.324 note C Larroumet, chr G Viney 157, somm
324 obs JL Aubert; JCP 1991 II 21673, concl D-H Dontenwille, note J Ghestin; Def
1991.1.729 art 35062 no 44 obs JL Aubert; RTD civ 1991.541 obs P Jourdain (the Blieck
decision).
118 Cass civ 2, 19 February 1997, Bull civ II no 56, 32, JCP 1997 II 22848 concl R Kessous,
note G Viney; D 1997.265 note P Jourdain, chron 297 Ch Radé (giving a strong defence
of the judgment) and somm 290 obs D Mazeaud; [1997] Resp civ et assur, chron 9 F
Leduc; [1997] Gaz Pal 2, 572 note F Chabas; RTD civ 1997.648 obs J Hauser and 668
obs P Jourdain (the Bertrand decision).
119 Art L121-2 Insurance Code provides: ‘The insurer shall cover the losses and damage
caused by persons for whom the insured is legally liable pursuant to art 1384 of the
Civil Code, regardless of the nature and seriousness of such persons’ faults.’ This is
treated as having the status of d’ordre public and so cannot be modified by agreement.
120 See, Lepore (2003) 212 CLR 511, para 219 (Gummow and Hayne JJ).
121 The notes to PETL indicate that liability should arise where there is some form of
‘linkage’ between the task undertaken and the tortious act in question: see European
Group on Tort Law (fn 41) 116.
122 See von Bar/Clive (fn 40) 3457.

Authenticated
lighted the uncertainty caused by the margin of appreciation left to the courts
under the 1988 formulation which has permitted the criminal courts to adopt a
generous interpretation of the test,123 arguably rendering it impossible to state
that a clear and certain overall test exists.124 Nor has it discouraged academic
writers from suggesting new means for determining the notion of abus de
fonctions,125 or led to unanimous acceptance of the dominance of risk theory.126
Further, commentators have questioned why, if liability is based on the risk
arising from the employer’s operations, it is still a requirement that the em-
ployee commits a wrongful act when logically liability should arise due to the
commission of any harmful act connected to the risks arising in the work-
place.127
The French experience helps us identify a common dilemma: how to devise a
test for ‘course of employment’ which is capable of meeting the policy objec-
tives of the State, but provides sufficient certainty for litigants and their legal
advisers? The debate engaged in by French jurists and commentators high-
lights the fact that any extension of liability is not without cost. Much thus
depends on how each system resolves the inherent policy debate between the
arguments of corrective and distributive justice, and the weight to be given in a
modern legal system to arguments based on risk creation as a determinant of
liability. Our survey goes to support the view of the High Court of Australia in
Lepore that ‘[t]he rules governing vicarious liability exhibit the difficulty they
do because they have been extended and applied as a matter of policy rather
than principle.’128 Clarifying the policies underlying the determination of the
course-of-employment test seems an obvious first step towards a clearer, more
principled approach towards liability.
IV. General conclusions: The value of a comparative perspective
In comparing common and civil law approaches to vicarious liability, we gain a

broader perspective – access to resources beyond our own legal systems, new
sources of scholarship and doctrine – but most importantly our own internal
preconceptions about the operation of rules which underlie any individual
123 P Malinvaud, Droit des obligations (10th edn 2007) no 602.

124 See Molfessis (fn 66) no 29; G Viney, JCP 2005.I.132 no 5.
125 See N Molfessis, Vie professionnelle, vie personnelle et responsabilité des commettants
du fait de leurs préposés, Droit social (Dr Soc) 2004, 31; J Julien, La responsabilité
civile du fait d’autrui: ruptures et continuités (2001).
126 Eg Cass (Ass plén) 19 May 1988 D 1988.514 note C Larroumet: ‘l’obligation de
réparation du commettant devrait être conçue comme la mise en œuvre par la victime,
d’une obligation de garantie fondée sur la confiance nécessairement placée par le
commettant dans son préposé, peu important qu’elle ait été bien ou mal placée.’
127 M Billiau, JCP 2000.II.10295, discussed in Terré/Simler/Lequette (fn 111) no 833.
128 Lepore (2003) 212 CLR 511, para 242 (Gummow and Hayne JJ).

Authenticated
legal system are subject to challenge.129 In the words of Curran, ‘[c]omparative

legal analysis introduces legal concepts, styles, organisations and categorisa-
tions previously unknown, opening unsuspected possibilities in the very no-
tion of law. The differences discovered in foreign legal cultures should propel
law students and scholars to greater acuity in distinguishing the actual from
the inevitable; and historically contingent happenstances from causally con-
nected phenomena.’130 The true value of a comparative perspective is thus to
increase our understanding of core principle, help us to appreciate the factors
which influence legal development, in addition to suggesting possible models
for reform. In broadening our perspective, it thus enriches our understanding
and critical appreciation of European tort law.
This article suggests that comparative analysis is particularly helpful in areas
such as vicarious liability where a common framework exists within which
each system has struggled with the same conceptual and policy-based ques-
tions. In examining three fundamental questions and how they have been
addressed by common and civil law systems, we can identify a number of
trends in the law which seem to go beyond their national context. For exam-
ple, research indicates that there is something fundamental about the use of
strict liability in this context. The operation of German law informs us that,
despite the clear words of the German Civil Code, a modern legal system
regards strict liability as a necessary constituent of a fair and just law of
obligations. It is also clear that legal systems must adapt to changes in employ-
ment practices. Two possible approaches are highlighted in the article as ways
of avoiding a reduction in the scope of protection: a more flexible interpreta-
tion of the control test, and a more radical application of the economic-reality
test. Flexibility may, however, result in uncertainty, over-extensive liability (as
seen in France) or opaque legal reasoning. While the economic-reality test
gives more guidance, it is submitted that the common law needs to move away
from a generic concept of the employment relationship to an approach which
focuses on the actual context of the case and addresses the policy concerns
arising in the application of the doctrine of vicarious liability. Finally, com-
parative analysis informs us that while all modern legal systems face questions
as to what extent acts fall ‘within the course of employment’, different ap-
proaches exist. Ultimately, much will depend on the readiness of the system to
accept risk as a basis for distributing losses arising from injuries linked to the
workplace, the availability of insurance cover, and the ongoing influence of
arguments based on fault.
In all systems, therefore, our analysis shows that, whether liability is termed
129 G Frankenberg, Critical Comparisons: Rethinking Comparative Law (1985) 26 Har-

vard International Law Journal 411.
130 VG Curran, Dealing in Difference: Comparative Law’s Potential for Broadening Legal
Perspective (1998) 46 American Journal of Comparative Law 657, 665.

Authenticated
‘vicarious’ or ‘for the acts of others’, the decision when to impose strict li-
ability and for which torts remains a fundamental question of policy as well as
law, and may only be understood by recognising the influence not only of the
conflicting policies of corrective and distributive justice, but of background
factors such as insurance, the lobbying power of other stakeholders, and alter-
native compensatory mechanisms.

Authenticated
View publication stats

Journalof European Tort Law Vicarious Liabilityor Liabilityforthe Actsof Othersin Tort AComparative Perspective

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Journalof European Tort Law Vicarious Liabilityor Liabilityforthe Actsof Othersin Tort AComparative Perspective

Uploaded by

Copyright:

Available Formats

See discussions, stats, and author profiles for this publication at: https://www.researchgate.

Vicarious Liability or Liability for the Acts of Others in Tort: A Comparative

Article in Journal of European Tort Law · January 2011

Research Handbook on European Union Tort Law View project

The user has requested enhancement of the downloaded file.

Brought to you by | University of Bristol

Curry,5 New South Wales v Lepore6 and S v Attorney-General7) in which the

Brought to you by | University of Bristol

Liability here is premised on fault, albeit with a reversed burden of proof

Brought to you by | University of Bristol

ability? Should liability be confined to the employer-employee relationship

I. Strict liability or a reversed burden of proof?

Common lawyers accept, in the main,16 the doctrine of vicarious liability as

Brought to you by | University of Bristol

caused the harm to make reparation.’ Equally, the Pandectist influence20 is

20 See BS Markesinis/H Unberath, The German Law of Torts: A Comparative Treatise

Brought to you by | University of Bristol

The idea of presumed fault does, however, possess contemporary relevance

26 K Zweigert/H Kötz, Introduction to Comparative Law (3rd edn 1998) 630 f.

Brought to you by | University of Bristol

Obligations) of 26 November 2001. The revised BGB was promulgated on 2 January

Brought to you by | University of Bristol

Brought to you by | University of Bristol

II. Identifying the relationship giving rise to liability: Changing work

In requiring a particular relationship, typically that of employer and employee,

Brought to you by | University of Bristol

law47 to impose liability (or simply utilises compensatory mechanisms which

Brought to you by | University of Bristol

A. A more flexible interpretation of the control test52

Brought to you by | University of Bristol

a subordinate, despite the absence of technical knowledge.57 Similarly German

57 Cass civ 2, 12 January 1977, D 1977 IR 330 obs C Larroumet.

Brought to you by | University of Bristol

B. The ‘economic reality’ test

Brought to you by | University of Bristol

Brought to you by | University of Bristol

C. Owner-driver v bicycle courier: The application of the

Brought to you by | University of Bristol

Brought to you by | University of Bristol

accommodate contemporary notions of employment relations. Courts should

Brought to you by | University of Bristol

III. Determining the extent of liability: Should employers be held strictly

A. Common law uncertainty: A doctrine in search of conceptual coherence

Brought to you by | University of Bristol

‘Salmond test’87 for course of employment, adopted throughout the common

Brought to you by | University of Bristol

Brought to you by | University of Bristol

will assist in resolving the issue, particularly if the answers, or a substantial

B. The French law debate: Abus de fonctions

Brought to you by | University of Bristol

Brought to you by | University of Bristol

Brought to you by | University of Bristol

IV. General conclusions: The value of a comparative perspective

In comparing common and civil law approaches to vicarious liability, we gain a

123 P Malinvaud, Droit des obligations (10th edn 2007) no 602.

Brought to you by | University of Bristol

legal system are subject to challenge.129 In the words of Curran, ‘[c]omparative

129 G Frankenberg, Critical Comparisons: Rethinking Comparative Law (1985) 26 Har-

Brought to you by | University of Bristol

Brought to you by | University of Bristol

You might also like