The liability of employers in tort for the conduct of their employees : a comparative perspective

Abstract

Indirect responsibility for the conduct of another is attributed albeit in different ways in both Common and Civilian legal traditions. One type of indirect liability is that attributed to Employers for harms caused to third parties by the conduct of their employees. The issue of whether and/or on what basis to hold employers liable here is not straightforward; as the limits of applicability of Article 1037 of the Civil Code are somewhat uncertain. Comparative law perspectives offer a vantage point from which the strengths and deficiencies of the Maltese legal scenario can be usefully assessed. Examining the issues which arise in establishing the indirect tortious liability of the employer, particularly when that employer is a company, is the object of this term paper. The focus is comparative; initially exploring the development of vicarious liability under Common Law. The test/s which the British courts use in order to determine whether an employer should be held responsible for the acts of his/her employees is/are highlighted with the help of case-law illustrating how the Common law has maintained that Employers fall under a strict liability regime since companies usually have better financial capabilities to compensate tort victims. The indirect responsibility of the employer in Civilian jurisdictions is next focused on. The main arguments are presented through the countries of Austria, Germany, France Italy and Spain. Comparative points are brought about through the relevant provisions applicable in each country given that Maltese legislation on liability is purely based on civil traditions. Finally this paper examines the still-developing system of Employers‟ liability under Maltese law; explored against a comparative law backdrop. Recent jurisprudence indicates how the basis of this liability has evolved from culpa in eligendo to embracing culpa in vigilando; extending its scope. Although this movement is an improvement, deficiencies are still present in the courts‟ approach and their fixation, for want of a better word, on the wording of article 1037 of the Maltese Civil Code.