Modelling organisational vicarious liability

Abstract

AbstractThis paper identifies two paradigms of vicarious liability. One is an established paradigm of ‘liberal agency’ found in cases where owner-managers ‘act through’ workers, with whom they have personal relations, in undertaking work tasks. The second paradigm is found in cases concerning bureaucratic organisations, which are characterised by chains of command and variegated decision-making procedures. Courts have grounded organisational responsibility in features such as structure, hierarchy, and control, which this paper uses to construct a model of the ‘deterrable organisation’. The deterrable organisation has important capacities to effect change in behaviour that courts rely on in order to prevent worker wrongdoing. The paper tests the viability of the model against the empirical literature and argues that courts could improve outcomes by a more targeted use of powers to award remedies.