Vicarious Liability 1: What it is.

People prefer to sue companies over individuals if they can. Companies generally have more money – Tesco has more cash kicking around than its staff on the shop floor. Sometimes, Mr Droog can sue Fyodor Plc because Fyodor Plc did something wrong in its corporate capacity. It has breached some obligation that it had.

An alternative route that might be available is opened up by the concept of ‘vicarious liability’. This is where an employee[1] (Alex)  does something that causes loss to Mr Droog. If Alex is an employee of Fyodor, and does the act that causes loss in the scope of his employment, then Fyodor is ‘vicariously’ liable. Mr Droog can sue Fyodor, even though Fyodor has itself done nothing wrong. This is no-fault, ‘strict’ liability.

The above paragraph raises a lot of questions.Who counts as an employee for the purposes of vicarious liability? What if someone is an employee of more than one employer? What on earth is the ‘scope of employment’[2]? What link between the work and the act is required? Lawyers would reckon that a London law firm wouldn’t be liable for one of its trainees negligently damaging a fence in Banff on a stag do, but a dry-cleaners will be liable for one of its staff nicking a mink stole at work[3].

Critically, I wonder about the justification of vicarious liability at all. Generally, it is seen as a way of putting economic risk on those who can afford (through insurance) to bear it; and allow tort victims a claim against a defendant who can pay out[4].

However, that rationale is far from satisfactory. Tort comes from the Latin 'tortum' meaning wrong. It is about the claims of a wronged party against a wrongdoer. In vicarious liability, we have claims between the wronged and an innocent party who can afford to pay. But only sometimes. Vicarious liability transforms tort into a most imperfect system of insurance.

This legal imperfection leads to real life moral issues. Currently, vicarious liability is being considered by the Supreme Court in a case relating to child abuse by a Catholic organisation[5]. There have been quite a few such cases in recent years. These cases lead to discussions of whether priests are employees and whether child abuse can be in the course of being a priest. Which is all horrible in itself.

Recent decisions seem to favour Diocesan liability. That may be welcomed – we might think that someone should pay. But what of cases where Mr Droog was molested by his uncle in his own home, not a priest in a church (or, a house master in a boarding school)? In the former case, Mr Droog has no claim against any rich organisation. He will unlikely recover any damages. In the latter cases, he will (remember, the church or the school has done nothing wrong).

Which makes it appear that it is better to be molested by a priest than your uncle. Our law should not let me type that.

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[1] I use this term loosely here –  it is not synonymous with employee in an employment law sense.

[2] Another time, I’ll look at these two (linked) issues of employee and scope of employment.

[3] Morris v C W Martin & Sons Ltd [1966] 1 QB 716

[4] Another time, I’ll run through the different grounds considered as justifications.

[5] The Institute of Christian Brothers case. 

Letter of Complaint: Thames Water

Below is a slightly redacted version of a letter I emailed to the Chief Exec of Thames Water. It worked: I got an apology, a partial refund (for my wasted time), and a contact at Thames Water I can call directly about any future account.

Lesson: normal customer complaint procedures are too slow and frustrating. The head honchos of big organisations often have staff to deal with emails like these.

Dear Sir,

My name is [Alex]. My customer reference number is [6655321]. I pay my water bill at a fixed rate. Critically, I pay my water bill. I have done so in strictest accordance with the advice I've been given by your employees, whom I've had cause to deal with on your premium rate phone services.

My tenancy expires in the middle of the year for which your company tried to charge me (Date 2012; the bill running between Month 2012 and 2013). As such, the bills I got were for amounts that I was never going to pay (anything post Date was irrelevant). I explained that to every single advisor I spoke to at every time I called to deal with Thames Water.

I paid for three months’ worth of water on A Day. I had agreed with the advisor on the phone that that would not quite cover me to the move out date, but as that date had not yet been fixed (although certainly 'in the month of Date'), paying for three months would be fine. I checked that paying the rest later (at Date) would have no ill-effects. I was told that it wouldn't. I asked, again, for a note of the situation to be put on whatever records your company holds about me. I was told that they would. 

On A Later Day I received a red letter from Thames Water. It was quite scary, for someone who had tried very hard to do as he needed to do, and who had made it easy for you to know what the situation was.

Thankfully, it said "If you have paid your bill in the last seven days, please ignore [this letter]". As I had paid my bill in the past 12 days, and had been so assured by the advisor on the phone that I had behaved properly and didn't need to get worried again until I moved out, I ignored the letter.

Today I got a very scary letter from a debt collection agency. I had to call another premium rate number. I was, now that the move out date is certain, able to pay off the £xx.xx I owed (not the £xxx.xx requested alongside threats of legal action and depleted credit ratings).

Clearly, at some point your systems have not worked. They have not worked because your advisors gave incorrect advice about when I had to pay, or because they didn't make the right notes on my file, or because those notes did not stop threatening letters being sent or my details being passed to a debt collection agency.

It wasn't nice to get a scary letter in the post. I don't much care for paying premium rate numbers to deal with scary letters that are not correct (or if they were correct, I don't much care for being told incorrect things by your employees).

I suppose you'll regard the whole operation as a success. I've paid.

You would be wrong though. Because I'm your customer and I am very angry at the way I've been treated, and that your flawed systems have put me at discomfort. And all at my cost.

You might not care. Who else can I get water from? But when Tube adverts tell me to be scrupulous about how long I shower for, it is galling that your company has not been scrupulous with the way it deals with its customers/income streams.

I would very much like you to consider what action by Thames Water would be appropriate to let me know that you do, in fact, care about how customers are treated; and I look forward to your response detailing those actions.

Regards,

Alex