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

Visiting Court and Watching Cases

I went to the Supreme Court to watch a very interesting case on vicarious liability. Vicarious liability is a doctrine that I studied at Uni, and was one of my very favourite undergraduate topics. I think I read more on that topic than I did for almost anything else. Of course, when I opened my Tort Final paper, there wasn’t a single question on it. Typical.

You might be like me, and find vicarious liability fascinating. But most people are either not fascinated by it, or don’t really know what it is. Which is fine.

What gets me is that some of those people visited the UKSC on the day in question, popped into Court 2, sat for about 5 minutes, and then ran off again.

I’m not surprised they found it boring. Counsel quoting from cases they’ve never heard of on a principle they don’t care about in the middle of a legal hearing based on facts they don’t know is not a rough-and-tumble Garrow’s Law spectacle.

What I am surprised by is that they thought the Supreme Court would be engrossing theatre. It is usually Counsel quoting from cases you’ve never heard of on a principle you don’t care about in the middle of a legal hearing based on facts you don’t know. If you didn’t know that, now you do. If you didn’t know it, and visited the UKSC, the TV screens showing the happenings of the court rooms should let you know.

The idea of seeing justice being done is a great one. But, unless you’re a person interested by any particular legal idea, my advice is this. Go to a criminal court. The stories will (generally) be better. The questions more factual and more tangible. You’ll find it hard to not form a view. When you go, ask to see the start of something, because that way you’ll hear the facts[1]. If you go to a magistrates court, you may well see a full trial, because they are shorter. (I saw a man defend himself by saying he had no intention of going to Disneyland Paris to hurt Donald Duck).  

I’m not trying to put you off going to court. Going to the wrong court will put you off going to court. Leave the dry stuff to those who know why it’s not dry.

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[1] You really can, and should, ask any member of court staff “What’s on that’s good?” and they’ll let you know. 

Plain Vanilla

I’m not hugely against legalese or industry jargon. Lawyers have words and phrases that we use because they are handy, descriptive shorthand. Lawyers say rights in rem rather than rights in a thing, because we use the Latin to get round our English ambiguities. It’s also shorter. We say judges’ comments were made obiter because the Latin means we can avoid saying ‘the judges were just giving their opinion on something they didn’t really have to deal with’, which would sound a bit rude, and a bit long. In competition law, we say ‘hard core’ when talking about a certain set of actions that are particularly bad. It’s just a useful handle (if a bit vulgar sounding).

But I am against jargon that is contrary to good sense or cookery. ‘Plain vanilla’ is one such term. It’s used in finance to mean ‘straightforward’, ‘simple’ or ‘without finials’, as in a ‘plain vanilla bond issue’. Now, I know bankers are not renowned for their soft, homely skills. But surely we all now know that vanilla is an interesting, complex flavour and so should never be described as plain? And certainly should not be tarnished by its association with bond issues. I don’t want to be thinking of the Eurobond market when I’m having my crème brulee. Hence forth, I’m replacing plain vanilla with John Smith. 

What is IP?

I think young lawyers-to-be quite like IP. IP stands for Intellectual Property, so it reassures you that you have to be intellectual to understand it. But the concept is pretty easy to grasp.

Think back to the Vodkat case described in a previous post. There, Diageo were concerned that some other company was getting the benefit of the goodwill built up in ‘vodka’. Someone else was piggybacking on the hard work of the vodka industry to sell their own lower-strength spirit. Or think of rip-off football shirts. No one buys a knock off football shirt because they think it’s a pretty tee-shirt – they buy it because it associates them with the club and their brand. The rip-off shirt manufacturer has piggybacked on the reputation of the club.

The same applies to trademarks. If I mixed sugar, ink and fizzy water and sold it in a bottle labelled ‘Coca-Cola’ then I am using the trademark’ of Coca Cola to sell my concoction. Another aspect of IP is patents. If you work for ten years developing a wonder drug and then I just make cheap copies (because I’m not trying to pay back ten years’ worth of research), then I am piggybacking on your efforts.

Intellectual Property, then, is the fruit of one’s labours that is not tangible. You can’t steal the money I earned, or live in the house I built, so you can’t just ‘steal’ the value in a brand, a reputation, a trademark, an artistic creation, a formula or a code.

Of course, a company needs to try and protect its IP. That’s why they get copyrights and patents and trademarks. Disputes get costly when no one knows what brand belongs to who. For example, you may have come across Budweiser, in both American and Czech forms. They are beers brewed by different companies, and they have argued over who owns the name for ages. In one of the judgements, an English Court of Appeal judge suggested they should maybe just chill out and stop arguing about it (my words, not his)[1]

One question must be relate to whether and when any IP should be freely available, or what should be freely available to some. For example, should academics be allowed freer access to certain material than commercial organisations?

Another problem is where there are so many patents that it is hard for companies to know what they can do – a ‘patent thicket’. As the 2011 Hargreaves Report said:

“businesses working at the leading edge of a particular technology may find it difficult or even impossible to know with whom they are in conflict, or whom they should approach for a licence. A current generation smartphone, for example, may well be covered by hundreds of patents owned by tens of rights holders.”

And you might have spotted a legal/policy tension. IP lets companies make money. You can’t just sell my new wonder drug at cheaper prices. Usually we like companies undercutting each other on price – that’s why we have competition law. So where competition law promotes competition, IP seems to set restrictions on it. That’s so that companies have an incentive to innovate. Why put in the hard yards if someone else takes the money in the end? The interface between IP and competition is a tough one to negotiate. 

[1] Ward LJ, para 65 of [2009] EWCA Civ 1022 I would like to say the dispute is all over; a CA judgement of July 2012 [2012] EWCA Civ 880seems to put paid to it all (and both get to carry on as they were). But given that between them, the parties have let the whole thing rumble on for so long, I’m not entirely sure!

Are Contracts About Morality?

Law and morality can be an unhappy double act; as if Ant had slept with Dec’s mother. Legal theorists have a great time deciding if law in its central case is moral, or if legal validity depends on morality, or if there is de facto moral good in having law, or if a judge should think in moral terms when deciding hard cases, or if they are entirely unconnected. And many other links, non-links and permutations.[1]

One area that has also received a lot of attention is the basis of contract law: why do we have legally binding contracts that can be enforced? Is there a moral reason for it?

The argument (in simple form) runs that breaking a promise is morally bad. Therefore when you make a promise that you intend to be bound by, the law of contract creates a legal obligation to match the moral compulsion.

This is not a standard and accepted reason for why contracts are enforced. A diametrically opposite view would be one like that of Oliver Wendell-Holmes, who said “the duty to keep a contract at common law means aprediction that you must pay damages if you do not keep it, and nothing else”. This view is predicated on the idea that contracts are a matter of economic usefulness. When a breach is more efficient (i.e. I break my contract with you because I can make a better deal elsewhere that covers the cost of my breach and makes me money too) then breach is A-OK.

Other views include a great emphasis on notions of reliance, or  take alternative and composite views.

But the point here is that contract law is often (and not improperly) thought of as a dry topic, where dull men of business make boring things happen. To think of a breach as an immoral act, and damages for breach as in some way the penalty and the compensation for that immoral act, stands at odds with aspects of contract law that treat contracts simply as hardnosed, arms-length agreement.

Finally, the theory of contract law is a tangly mess. There is no one accepted theory. One reason is that theories match up with different parts of legal realities. How, for example, does the morality of promising as a basis for contract law fit with the need for ‘consideration’ (i.e. both parties need to give the other party something for a contract to be valid)? If promises are morally important, is it right that you can’t make punitive provisions in a contract for breach? If promises are important, why is specific performance not a normal remedy?  Equally and oppositely, if contracts are just about economic efficiency, why do we have doctrines to protect weak and vulnerable contractors? Why do we abhor misrepresentation?

This sort of stuff keeps academics awake at night. Commercial solicitors don't normally worry about it too much!

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[1] Anybody doing any legal theory could do worse than having  a play around on this website. The example theories cover (in an embarrassingly rough way) Finnis, Fuller, [many theories in many ways], Legal Positivism and Dworkin. 

The Maths of Deterrence

One reason we punish is to deter the offender and others from doing naughty things. But how does deterrence work?

The simple idea is that if the punishment (pain) is worse than the gain achieved by doing a naughty thing (pleasure), than we, as rational people, won’t do that bad thing. I won’t steal a loaf of bread if my hand would get chopped off. Deterrence works where Pain > Pleasure.

Add a complication. What if we don’t expect to be punished? Fines for smoking inside in public places are relatively high to mitigate against the fact that it might not be applied in all cases. This is the maths of probability. A fine of £50 that is applied in (say) 25% of cases creates a probable pain of £12.50[1]. Deterrence works where Probable Pain > Pleasure.

Add another complication. What if I don’t know smoking in a museum is wrong, or if I think the punishment for stealing bread is community service, or if I wrongly guess that only 2% of offenders get caught? My calculation is skewed by my misinformation. So, Deterrence works where Expectation of Probable Pain > Pleasure.

My last complication. Humans aren’t rational. I’ve been reading a book by Daniel Kahneman, the psychologist who has made behavioural economics a thing. He writes about (among other things) how humans assign weights to probabilities incorrectly (overplaying small chances, or negating them entirely), about how they are risk averse when it comes to losses, and how people have optimistic views about how their own plans will work out. Apply that to our formula, and we can see that our irrationality mucks up our calculation[2]. A 5% of apprehension might loom larger, and feel like 10%. I might be really worried about the cost of the fine. I might think that I am such a good loaf stealer that I won’t get caught. Therefore, Deterrence works where (Expectation of Probable Pain > Pleasure) (as affected by Human Irrationality).

And this is all unapplied theory. Criminologists don’t know how well punishments deter, because it’s very hard to do controlled experiments. Further, Pain and Pleasure might be felt differently by different people. Finally (for now), a lack of other options (the hungry loaf-stealer) must have effects. With calculations this hard, who’s to say whether punishment X will deter Mr Droog or Fyodor Plc from offending or reoffending?

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[1] Which is more than you’d pay for a license to smoke one cigarette inside.

[2] Kahneman doesn’t like to say humans are irrational. But he does say they aren’t rational in the sense economists use it. So I’m going to be all blasé, use words normally, and call humans irrational.