Book contents
- Frontmatter
- Contents
- Preface
- Abbreviations
- 1 Introduction
- 2 The reception of Bazley v Curry
- 3 Enterprise risk
- 4 The risk and the individual
- 5 The enterprise
- 6 The borrowed employee
- 7 Independent contractors
- 8 Transferring the burden: the employer's right of indemnity
- 9 Risk and the employment relationship
- 10 Enforcement of the employment contract
- 11 Enterprise liability and non-delegable duties
- 12 Fundamental obligations
- 13 Concluding remarks
- Index
3 - Enterprise risk
Published online by Cambridge University Press: 17 November 2010
- Frontmatter
- Contents
- Preface
- Abbreviations
- 1 Introduction
- 2 The reception of Bazley v Curry
- 3 Enterprise risk
- 4 The risk and the individual
- 5 The enterprise
- 6 The borrowed employee
- 7 Independent contractors
- 8 Transferring the burden: the employer's right of indemnity
- 9 Risk and the employment relationship
- 10 Enforcement of the employment contract
- 11 Enterprise liability and non-delegable duties
- 12 Fundamental obligations
- 13 Concluding remarks
- Index
Summary
The concept of enterprise risk is absolutely central to the body of jurisprudence emanating from Bazley. The equitable basis of enterprise liability demands that the risks of the enterprise be identified before liability questions can be determined:
The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.
The appeal to fairness proclaimed by enterprise liability is predicated on the capacity of the courts to render an enterprise responsible for the risks engendered by it. The requirement to demonstrate the existence of the requisite nexus could not be more fundamental as it goes directly to the moral claim of enterprise liability. It is one thing to say that the enterprise should be responsible for the risks it has created; it is quite another to say that it remains responsible when the existence of the risk is entirely coincidental or where the employment has merely furnished the opportunity for the commission of the tort. This is explained with great clarity in Bazley:
any employment can be seen to provide the causation of an employee's tort.[…]
- Type
- Chapter
- Information
- Enterprise Liability and the Common Law , pp. 27 - 44Publisher: Cambridge University PressPrint publication year: 2010