 Yng nghydroedd, ychydig, ychydig, ychydig, ychydig, ychydig, ychydig, ychydig, yn ystod y cwysig, yn ymuno a'i Cymru, mae Sarah Worthington yn ein oed yn fawr o'r eich ddalol. Mae yna, mae Sarah Worthington, ac mae'n ddysgu'n ei bod yn fawr i'n gilydd i'r ffordd gyda'r cwysig ar y Ffacolau Cymru 2017. Mae'n eu leisio ar yr ysgol yw'r cyrraedd o'r Llyfrgell Cymru yn ei wneud ar y Llyfrgell Cymru has sponsored since 2012. I think it's a tribute to them that right from the outset they were prepared to pik amp having a public lecture in the area of private law where we would have an opportunity to debate, discuss, challenge some of the really difficult issues in private law, ac yn ymgyrch, mae gennym iawn i'r traddwlolol iawn. Mae Simon Deacon yn ysgolio'r llai'r llai, y Llyfrgell Ffair, y Llyfrgell Ffair. Felly, mae'r llai'r llai'r llai wedi bod yn gweithio'r llai, dwi'n credu bod ddim yn mynd i'r Llyfrgell Ffair yn ei wneud bod yn ei wneud i'r llai'r llai, a'r hynny'n ddod yn mynd i'r llai. Over 18 mlyneddyn ni wedi dŵr ddechrau Lord Cyngor, dŵr just three weeks ago, I think. So, I suppose Simon Deacon tonight will not only lay out the evolutionary path of this form of liability, but also the ideas that underpin it and to try and persuade us perhaps o'r dddarlun o'r ddarlun o'r ddarlun o'r ddarlun o'r ddarlun o'r ddarlun o'r ddarlun o'r ddarlun o'r ddarlun o'r ddarlunio. Felly, mae'n gofio ffordd i gael. Simon Deacon yn hynny i ddarlunio'n gwybod i chi. Felly, yw'r profesi'r fawr â'r Gwymbrach. Felly, mae'n gwybod i'r pethau cyffredinol yn y Gymdeithasol Llanferol. Felly, yw'r fagorol yw y fagorol. Is that he has expertise that ranges across a vast legal terrain, probably more than other of my law colleagues. So his expertise, labour law, tort law, contract law, company law, EU law, and not only that, but within each of those areas, he usually does not study them within a narrow legal context, ynglynig o'r ffordd o'r cyllid yn ymgyrch, cymdeithasol o'r cyllid yn ymgyrch, o'r dweud cymdeithasol, o'r rhaid fyddi'r cyllid ymgyrch. Rydym wedi'u cefnogi, rydyn ni'n disgwylu'r cymdeithasol o'r cyllid yn ymgyrch, ar y cyllid yn y cyllid yn y cyllid yn y cyllid yn y cyllid. Nid oes i'n gweithio'r cyllid. y Cymru Fyloedd Cymru, ac mae'n cyfnod o'r Unedig Ynwysgwyr Fyloedd Ynwysgwyr Fyloedd Cymru. Efallai'r honno'r pethau. Mae'n cyfrifio'r Ynwysgwyr Fyloedd Cymru yn Llywodraeth, ac mae'n Cymru'r Ynwysgwyr Fyloedd Cymru. Mae'r cyfrifio'r Ynwysgwyr Fyloedd Cymru yn gweithio'r ffacolau Cymru, ac mae'n gweithio'r unedig. Mae'n gweithio'r unedig yw'r ysgolwyr cyffredigol. Mae'n gweithio'r rhai oedd y cyfrifio yn unedig i ymhyfydlu. Mae'n gweithio'r unedig i'w Hyffredig Ynwysgwyr Fyloedd Cymru. Y Unedig Ynwysgwyr Fyloedd Cymru, i ymhyfydlu, i Japan yw 80. Mae'n gweithio'r cysylltiadol. Mae'n ysgolwyr Fyloedd Cymru, Llywodraeth, Hyffredig Ynwysgwyr Fyloedd Cymru. Mae'n gweithio'r cyfrifio'r ydyn nhw. Mae'n cyfrifio'r Ynwysgwyr Fyloedd Cymru yn 2005. Ond yna'r rhaid i'n cael ei ddweud yw'r un이, byddwn i'n gynnyddio'r rhaid i'r hollwch. Simon wedi'u gweithio 4-5 o 50 a gyr�ddoddodd ar gyfly. Ac rydyn ni'n ddweud o'r rhai hwnnw. Ond wedi'u gweithio'r rhaid i Simon. Rhaid i'r hollwch, Sarah. ac o'r ffordd, yn ddechrau i Allen am roedd yn bwysig hwnnw i'r ysgolwyddon ar gyfer Y Llyfr. Hwnnw'r rheswer iawn o bobl wneud y Llyfr Fyleddol. Hynir gweithio eraill hwyl, ond hwnnw'n cael ei bod nesaf yw hen mae'r boblygu'r swydd. Rwy'n cael bod'r llywodd yn gweld ddiwedd ar rydym yn seyr datblygu. Y lŷnod yma, y Cyfrifredin Cwrdd hyn o'r llyfr ar y rhain. Uw rheiddiw'r cyfrifredin i ddweithio'r bobl bob Llyfr Fyledd, Dryg said to cover a situation in which a foster child is abused by her parents. The foster child has been placed with their parents by the local authority. Can the local authority be liable for the terror committed by the parents? Yes, according to the Supreme Court IN the Arms case and liability is vCRFs. Normally vCRFs liability is different from that. It's a liability of an employer for a tort committed by an employee o'r cyflau'r cyflau'r cyflau'r cyflau. Efallai y dyfodol y pethau yn ei ffostafol yn y cyflau'r cyflau, rydyn ni wedi cyflau'r cyflau ar y cyflau, a ydy'r pethau chi o'r cyflau ynglyn llyfr o'r cyflwytoedd yn gweithio'r cyflwytoedd. Rwy'n cyflau'r cyflau'r cyflau ar y viherus i wneud o'r pryd yn y rhan o'r cadw i'r cyflau ar y cyflau yma. Ychydig oherwydd y cyflau'r cyflau ddechrau gyda gyda'r Llywodraeth yn ystod yn fewn iŵr. Mae'r Llywodraeth beth i'w ddiddordeb sy'n rai bwysigol i Siarad Dros. Mae CFIA yn ystod o'ch cyfrifio cyfan gyda llyfr Ynglyn Hyrffll yma. Mae ymddangos ei ddweud o'r streffau isoedd. A'r ydydd y Llywodraeth sydd gweithio diyrnod dros wahanol oherwydd... ..efall, mae'n gweithio yma sefydlu am fynd o fyrfa i'r synes... ..methefydd i'w wldff ferch yn yr uned.. O'r cyd-dynion yng Nghymru adef, yr ystod o'i cyd-dynion yma, yr ystod o'r cyd-dynion a'r rlyw gwrdd i'r cyd-dynion. Yn dechrau'r llaan drwy'r cyd-dynion, sy'n gwneudio eu cynorthi'r cyd-dynion、 a wedi bod eich bod arweinyddol yn ddylog ac yn eich bod yn y dydnim arweinyddol yn ddygu. Yr ystod, mae hynny'n ddiolio'r cyd-dynion, yn gweithredu co-evolution hwn lle arweinyddol yn cyd-dynion. Felly, mae oedd cyfnodd iawn o cyfnodd, y cynhyrchu mewn cystafol y system ac yn個人. Y Llywyddyn Llywodraeth ym Mhwych, mae'n gweithio'r prynsibl o'r llywodraeth Llywodraeth o'r llywodraeth. Pan oeddwn i'n meddwl y ideaeth y Llywodraeth Llywodraeth ym Mhwych yn ein coerr o'r llywodraeth o'r llywodraeth. Y Llywodraeth ym Mhwych ym Mhwych yn llywodraeth o'r llywodraeth yn cyfrannu cymryd. Gydy Argy сталion Aelod am y lleol yma sy'n velotion ar explo-lsaeiteuniaeth i ymlaen... ...y ddÙch acid ymlaen y panwar eich iawn yn y salud... ... Myslwch gan faineun bawbaciaeth yn y Aelod. Saban終od yn cyfarch RP�드 ar gyfer ymlaen. Efallai yma am yn y lleol yr Ysgrifordeidd Monodd Nicholas L jeansfemawr. An yn erdwng aróedd yr ysgrifon Ysgrif Wag El Barcelona, y dywed ar hyn fair clever anime. Oedd yno? When I was a student, the first case I ever read Was a case about a sword fight that didn't happen in the 17th century there is a feeling sometimes that yes Maughliaw his not quite brought itself up to date to an industrial age let alone the post-industrial one we might be entering so it will be useful to think about talk law and industrialisation almost before it is too late But this isn't a new theme over a hundred years ago ein heatshwr o gyblwad yng ngherлюch ar y L 우리� yma Dead it appears at tort law is about ungeneralised Wongs, assaults, Slanders and the like. You can see that corpories are busy with other things. They are busy with cases about business enterprise. But critically, they are about... It will begin to discuss this evening the principle of enterprise liability. Injurers to persons using the railroad. Injurers caused by products made in factories. Injurers to people in the factories. that liability for these is estimated and sooner or later it goes into the price paid by the public. So the enterprise internalizes these costs and largely passes them on through pricing and insurance. So the real question for tort law has always been and is now how long the public should pay for the harms suffered by those rather victim of accidents? And to address it, I think we need to look a little bit beyond legal analysis y trofyn gweld fygyntu arferwadod daf. Mae Homes yn 1997 yn ddullio i'r ddweud bod yn cyhoeddiol. Po ddweud rhaid Ganfodol Gwyddefynion, mae'r brydartrheid o'r iawn o'r gwr mwy, mwy hi wnaeth y cyfnodd, felly'r cyfnodd yn ei wneud vaffaith i'r cyfnoddau ac o'r maesau i'r gwrs. Beth y pryddiwyr ei ddim yn wneud fyddy, ond mae'i ddim yn ei ddweud i ddweud i gael ar y discipline. Cymddechrau, oedd yn yr aelodau. In 1997 Nicholas Llewman, who began his career as a lawyer, he trained as a lawyer, but then became a sociologist and perhaps the most important sociologist of the 20th century, said in 1997, on my appointment to the Department of Sociology established at the University of Bielefeld, I was asked what research projects I had running. My project wasn't ever since has been the theory of society. Term 30 years cost not. Right, okay. So Llewman said you don't actually have to spend all your time doing interdisciplinary research outside the academy and not every project requires fast expenditure of time and resources. Of course, I should say to any early career researchers who are present that we shouldn't follow Llewman's advice, especially at a job interview. Right, and it's not altogether clear whether Llewman uttered these words before or after he'd been offered the post he accepted. It may not be a good idea to follow Llewman's exact example, how many of us could maintain a 30-year research project costing nothing. But this is a reminder that interdisciplinarity takes many forms and Llewman, as a lawyer, was very interested in legal language from a sociological perspective. What about the economists? Now we learn from the 1960s and 1970s onwards that tort law and contract law are in a sense the internal code of a market economy. They are the deep structure of the rules which govern a market economy and in a sense constitute it. They have a close relationship to it. Greedo Calabresi in a Costs of Accidents says the function of tort law is to minimise total accident costs. So that includes not just the harms which victims of accidents may suffer, but also the avoidance costs which defendants incurred to limit their liabilities and the process costs of organising compensation. It's a total costs, not just the harms to victims which need to be minimised. And we have to accept that at some level a decision to base our tort system on fault is a decision for a certain level of accidents. We tolerate as a society a certain level of accidents. We no longer have people walking in front of motor vehicles with a red flag to make sure they don't knock people down. But we did once, we don't anymore. So tort law is about finding the right level of governance through law of accidents. It's about allocating risks and allocating liability for risks, not preventing accidents completely. Tort law should assign liability risks to the cheapest cost avoider or the least cost avoider as Richard Posmer puts it in economic analysis of law. What does that mean? Impose the cost upon the party you could have minimised the accident most effectively sometimes. That might not always be the enterprise, it might be the employee or the consumer. It could be the enterprise though. And the enterprise, of course, if it's carrying liability insurance, can diffuse the risk, can price products, can pass the costs on as homes recognised. So often the insurance means that and the pricing means that the enterprise is the least cost avoider. Liability in tort is based on fault and liability in contract is strict. I want to come back to this, an important article by William Bishop in 1982. The tort contract boundary is effectively determined, he argued, by the economics of insurance and by considerations of information. So here's an argument that the whole map of private laws we understand it has some kind of implicit economic underpinning. But if the tort law and contract law systems really are efficient, let's say they minimise the total social costs from accidents to get liability just right. How do they do that? That's an important question which law and economics has a sort of answer to. And the answer is evolutionary. This is the argument that litigation selects out inefficient rules. And it's not completely novel. Many people in the common law tradition, many judges indeed have argued that the common law works itself pure. There's a mechanism by which through litigation and decentralised decision making, the adoption of precedent inefficient judgments are purged from the system. This is a law and economics approach that decentralised decision making by the courts creates an evolutionary context in which the law becomes more efficient over time and this evolutionary mechanism is lacking in the case of legislation. Now I want to consider this today, is a common law really efficient? I'll say maybe it's qualifiedly efficient. It's not perfect. Do illegal rules evolve? Yes, I would like to show how. And here an important idea we find in biology, the so-called variation selection retention algorithm I'll explore in a moment. But the idea that this biological model can explain social norms and social structures is what's sometimes called universal Darwinism. And we find this in Richard Dawkins' book, The Selfish Gene and Daniel Dennett's Darwin's Dangerous Idea. So biology to some degree now enters the story because many of the models biologists use depend upon notions of rational choice and also concepts of structure, which they have in common with economics. But the biologists give a somewhat more dynamic interpretation to these models. Now what I'm not saying this evening is that we can use genetics directly to understand the law. There is a body of thought which holds we can use genetics to understand social structures, evolutionary psychology and sociobiology. That's interesting, but I don't want to go there today. I would rather want to argue that by analogy with biological processes we can understand social and legal evolution. So society is structured in a way which has some resemblance to laws of evolution that we see in nature. But they're not exactly the same. We don't completely understand them. But we can look to Dawkins and Darwin and Llewman for inspiration. We can think about DNA and what his equivalence might mean. DNA that was deciphered, of course, just down the road from here, in the laboratory of molecular biology and Crick and Watson then went to the Eagle pub afterwards to celebrate. That's right, but a warning here for all empiricists. We now know they got their basic data from attending a dinner at Peterhouse in which the crucial data was revealed almost by accident. Roslyn Franklin, who'd actually done all the empirical work for this, never got the Nobel Prize, which they got, although she would have done if she hadn't died. Now, random variation and environmental selection, what exactly is meant by this, Darwin himself in the Origin of Species talks about variation. He says whenever you have a set of a population and there's variety within that population which can arise from what are really just copying errors, we might think of these as copying errors, but there's variety in the species. Some functions, some features, some design features will work better than others. And where there's scarcity, selection tends to select in the more efficient features. We don't even need to have to understand where the variety comes from. If there's variety in nature, environmental natural selection spontaneously selects in the features which work in the environment. So this happens as it were spontaneously without the need for centralised direction. So natural selection is a theory of spontaneous blind evolution, but not random. The variations can be random, but the patterning of selection is absolutely not random. It can be blind, but not random. It's structured so that the efficient features survive those which literally fit the environment and fitness just means that they fit, not that they're necessarily better. That's the Darwinian notion of evolution. And George Priest in his article about evolution in the Journal of Legal Studies in 1977 applies this idea. He says, in a common law, let's imagine, let's model that judges decide cases completely randomly. Now I know there are some judges here this evening who might object to the idea that they decide cases randomly. Right, okay. It's just part of the model. So it's just an assumption, but let's assume that we have random decision making or let's at least assume some stochastic factor which produces a great deal of variety in the way courts decide cases. That's not so implausible. Take a new development, the 19th century, the steam engine, today's cyberspace, how do courts deal with that? Until there's some clear authority from the Pellock Court, there could be five or six or seven or eight, even more interpretations of how to deal with this issue. In the middle 20th century, cases on product liability, even in America alone, run into the thousands. Just reported cases. So there's a lot of variety while the courts try to work out what the right rule is. Selection works of litigation. So Priest argued that there's a differential litigation effect going on because rules which work, rules which are the right solution, never get litigated against. So these are the rules which never appear before the appellate courts. Litigation is about the rules that people don't like. They have an incentive to challenge them through litigation. And arithmetically, even if judges decided randomly, which we don't think they do, but if they did, then it would be the inefficient rules which don't get challenged. They're the ones that never get before the Supreme Court. It's the rules people don't like, which get challenged. And if there were simply random position making, they would be culled more frequently than the efficient rules. So over time, a simple arithmetical rule would imply that we're left with the efficient rules. Now this process, of course, is going on the whole time. It's not a static process. And it may be that judges don't decide randomly. Of course, precedent structures the way courts decide. And this is missing from Priest's approach. He doesn't have a theory of inheritance or retention. The algorithm supposedly Darwin's dangerous idea requires variation and selection, but also inheritance. And what that means is that evolution is just as much about continuity as change. Evolution explains why things stay the same and not just why they change. And in nature, genetic forces, DNA, are the mechanism of inheritance. In law, there are similar mechanisms or parallel mechanisms of inheritance. And critically, it is, of course, precedent which helps ensure inheritance or retention of knowledge within the common law. The rule that like cases must be decided alike. The meta rule of the common law system of which every other rule is derived is a kind of inheritance principle. Now, you may say this is not nature, these aren't material forces. What I'm suggesting here is that without that rule, without the rule of precedent, the common law system would begin to fall apart. Imagine if every case were simply decided anew each time. And we never referred back to earlier decisions or to issues of principle. This was recognised by Carl Llewellyn in the 1930s and his book, The Bramblebush, is supposedly written for first year law students. Okay, it's possibly the most important book about the common law ever written. And one can only imagine what people thought in their first week of law school at Columbia or Chicago when Llewellyn gave his lectures, which are brilliant but quite difficult. But Llewellyn's idea was the common law is, of course, of Bramblebush. And it's kind of unwieldy and maybe a bit thorny. It evolves, it can't be controlled. This is a beautiful Bramblebush, isn't it? It's possible to imagine some rather less beautiful ones. But the common law has its own pattern. The bush has its own structure and pattern, but it's evolved spontaneously. Here's Llewellyn in the stacks at Columbia, I think. He was like Llewellyn. He thought he could do all his research while staying at home. He's doing it in the law library, not out there in the field. No one has as exhaustively studied the common law as Carl Llewellyn with the 64 different ways to distinguish a case. Right, this is an exhaustive analysis of exactly what the judges do. So Llewellyn's theory is a theory, he didn't quite put it this way himself, but a theory of inheritance. President is the mechanism by which the common law is held together. And juridical language is, of course, critical in this regard. President can mean one of two things Llewellyn said, building a case up or tearing it down. These two different versions of adoption of precedent that the court, when it narrows a precedent, can also be creating the scope for a new rule. This is typical of the common law. Every time there's an innovation, it's done by reference to the past. This is a version of Delampadouza's leopard principle that in order for things to stay the same, everything has to change. But in the common law, it's the other way round. In order for things to change, they've got to stay the same. Now, this is the way the common law works. Evolution is both continuity and change simultaneously. And adoption of precedent achieves this. That was Llewellyn's point. Llewellyn's point is that concepts matter. Here's something that the American legal realists didn't care about at all. They thought that deductive legal reasoning, using concepts to decide cases, of the sort which are developed prior to the realist movement, the so-called Langdellian revolution in American legal thought at the end of the 19th century, concepts matter. Concepts like contract, concepts like vicarious liability, concepts like fundamental breach, whatever they may be, these determine the outcomes of cases. And judges use these conceptual tools deductively to reach the outcome in a case. The realists thought that was all nonsense. And what really mattered was politics. If there really are 64 ways to distinguish a case, Llewellyn said, how can we really be sure that an outcome of a particular decision is predetermined by a precedent? It does that much scope for discretion on the part of the court. Is precedent really deciding the outcome of a case? But, of course, there's more to the common law than precedent. There are abstract ideas which aren't rules. Vicarious liability isn't a rule. And this is, in German, rets dogmatik, conceptual reasoning. And Llewellyn makes this very interesting observation. He says, a concept embeds information. Now, what did he mean by this? I think he meant that a concept like vicarious liability is a shorthand form for all those hundreds of decided cases, thousands of other cases on this issue. So, when we think vicarious liability beneath that term, are all the decisions, all the past decisions on this question, and we can decode them using this concept. So, legal interpretation is a process of coding, recoding and decoding these abstract ideas, these forms we call concepts. And these are not just imaginary forms. They've been worked out by the courts, by the judges, by lawyers over many decades through a process of arguments. So, you can't just argue anything in front of a judge. You've got to refer back not just to precedent, but to these abstract ideas. So, they do matter at some fundamental level. And we use them as tools, tools of interpretation as heuristic devices. They have a sociological function, a function of retaining memory within the system without which the system would fall apart. But are these concepts always ideal for present-day circumstances? Here's Holmes again in the common law. And this is, of course, classic Holmes. This is very sarcastic in a way, a little bit cynical, but absolutely fascinating. So, he says, the customs beliefs or needs of a primitive time establish a rule or formula. We're not quite sure when this is. Maybe the 1850s or the 1350s, Holmes isn't clear. And every rule has beneath it some kind of belief or necessity. But over time, people forget what that is. They forget why the rule exists as it exists. And of course, at that point, the lawyers have a problem. So, Holmes says, the reason which gave rise to the rule has been forgotten. So, ingenious minds have to set themselves a task of discovering what the reason is. And of course, by ingenious minds, he meant the common lawyers. Right, these ingenious people find a new justification for the rule. And the rule, he says, then enters upon a new life and he uses evolutionary language. Very interesting. The rule adapts itself. That's even self-referential language of the sort Lumen uses. The rule adapts itself to its new reason and enters upon a new career. The old form receives a new content. And in time, even the new form modifies itself to fit the meaning which it has received. So, this is what happens to concepts or ideas. They begin with one justification. Of course, it is vicarious liability. They begin with one justification. They end up with another. And we often forget that when we read the cases today, a court may cite decisions on vicarious liability from the 17th century up to the 21st, but the old decisions have a completely different context. And the genealogy may not be what it appears. Now, one role of legal scholarship, therefore, is to engage in a kind of genealogical analysis where we uncover the precise evolution of an idea. And we see that it's rarely straightforward. It's rarely linear. It's inevitably not the way it's presented in a judgment today because the court's job is not to retrace that genealogy but use the concept now for its new purpose. But when we as scholars look at these ideas in a genealogical fashion, we may learn something. And this something may tell us a lot about the way the common law works, but it also critically tells us about the usefulness of a lot of these concepts. Now, a related idea is the concept of a spangel. So you're probably wondering what on earth this is doing in a law lecture. Although not if you've heard me talk about this before. Okay, so here's an idea from biology. Stephen Jay Gould, the great evolutionary biologist, had a holiday in Venice, a good idea, and went to the Basilica di San Marco. And inside the cathedral or the Basilica, he wasn't focusing on his holiday. He was thinking about evolutionary biology of course, good academic. And he said, look at these beautiful things called spangels. So the spangel is this shape in between the arch up there, top right and top left. This is a spangel where there are these beautiful reclining figures. So the spangel, Gould thought, is that some sort of efficient design feature? Because a space is just right here to portray beautifully these goddesses or whatever they are, muses or something like that. Isn't this space just designed for the artist to fit the sculpture into? Isn't it efficient for its purpose? Of course, the spangel isn't there to provide a space for the artist. The spangel is there to keep the building up. So it's a great example of what he calls exaptation. What looks like a useful design feature was originally there for some other purpose and has been opportunistically adapted to its current end. And if you uncover the genealogy of the spangel, you can understand why it may not be absolutely perfect for its present purpose. And why are spangels so widespread in the Basilica but also in law? What are these legal spangels, concepts invented for one purpose and used for another, because a transaction cost of inventing a new concept every time the law has a new need, are very considerable. The least cost option is to use what's at hand rather than always to invent something new. And that is, again, vicarious liability. It's a legal spangel. So let's then return to the legal theme that we're addressing this evening. Vicarious liability. Where does it begin? Homes would have said, in some primitive time, there's a discussion about vicarious liability. What are its origins? Possibly in Roman law, the liability of the Patafamilias for members of the household. Possibly in medieval common law, liability of a master for the tort of a servant in some guild setting, some pre-modern industrial setting. It's not really clear. Possibly the term vicarious liability wasn't even used until very recently, maybe the 19th century. But there were lots of antecedents for the idea that a master, or the Patafamilias, or possibly a principal engaged in overseas trade can be liable for the act of a servant or agent or member of the household. There were lots of antecedents, but all these antecedents have nothing at all to do with the modern industrial enterprise. They have nothing at all to do with that because that modern industrial enterprise is a feature of the 19th. Not even really the 18th, more like the 19th century. The employer is liable for a tort committed by the employee in the course of employment. But the idea only gradually evolved out of these antecedent sources. And of course, in the 19th century, there wasn't vicarious liability in the sense that we know from the modern law. Now that was because of something called the common employment or fellow servant rule. Under tort law, in the 19th century, the employer was not liable for a tort committed by an employee in the course of their employment at all if that tort injured a fellow worker. The common employment rule. So vicarious liabilities we now know it didn't exist in the 19th century. And that was apparently an invention from 1837 in a case called Priestley and Fowler. It spread to America. The American courts were watching and in Farwell and Boston Railroad Company, they adopted the English law reasoning. It then came back over to England and Scotland in Bartons Hill Coal Company and Reed. In that case, the House of Lords accepted the common employment principle. So here we have the judges saying in Bartons Hill, the Scottish judges, by the way, thought this was just wrong and said it was not part of Scottish law. In the Bartons Hill case, the House of Lords said it was part of Scottish law. If it be part of the law of England, it must be part of the law of Scotland in this particular case. Two coal miners have been killed when the vertical shaft collided with the top of the pit head and the claim was brought on their behalf for personal injury. The claim failed because the negligence was caused by fellow workers. But what was the purpose of the rule? There never was a more useful decision or one of greater practical and social importance in the whole history of the law. Hyperbolic language, perhaps. Okay, Chief Baron Pollock in a case a couple of years after the Bartons Hill decision. Why was it so important that employers be relieved of liability for torts according to Morton Horwitz in the 1970s and the transformation of American law? This was useful for developing firms in an early stage of capitalism. The law was subsidising enterprises by relieving them of these social burdens, a burden of liability. Not just in American law, in German law too. The notion of vicarious liability has no clear place in the BGB, the German civil code of the 1890s partly because of fears that small firms will be overburdened by legal liabilities. That's Battle Markasinus, the German law of torts 1986, referring to a German literature on this issue. So clearly vicarious liability was a huge political question in the 19th century. And so we might be thinking here, okay, vicarious liability is evolving response to industrialisation by lifting the burden on firms. And Horwitz says vicarious liability is an illustration of the pro-capital bias and anti-labour bias of the common law. And I had maybe many reasons behind that. But I don't think it's the whole story. So in Priestley and Fowler, the issue essentially concerns, well, the name gives it away. There's no company involved in this case. Priestley and Fowler are two personal parties. And the critical issue in this case was who knew more about the way that this particular operation, contract of carriage, would be performed? Was it the worker? Or was it the employer supposedly hiring them? There was no organisation here. It was a casual hiring. And the court uses what's really economic reasoning. Says the worker knew more about this business than the so-called employer did. And the worker's actually in a better position to internalise this risk. He didn't say that, of course, but what they're really saying is the worker knew more than the supposed master in this case. And that's why it's wrong to impose the liability upon the master. He's just a personal defendant like the worker is. He has no real assets. And at this time in the 1830s, that was true of nearly all manufacturing firms in England. There was an industrial revolution, so-called, from the 1750s onwards, but nearly all manufacturing firms weren't companies. So here company law comes in. And of course today nearly every case involving torts in negligence, except those involving road traffic accidents where individuals have to carry liability insurance, nearly every case is about a company. It's about a non-human person who is a defendant. And if tort law is about physical injury by definition, the claimant or plaintiff is nearly always a human being. So tort law is quintessentially the law of human beings suing non-human persons, companies and others. And the purpose of this is, of course, to enable the human plaintiff or claimant to bring a claim against the asset pool of the company. And that's what company law does. Company law partitions the assets of the business, separates those of the trading entity from the shareholders, and also the workers. This asset partitioning is fundamental to the way companies operate, because it provides the basis for tort law too to function, because the claim is being channeled through to the asset pool of the company. So legal personality is intersecting here with the physical structure of the enterprise to provide a remedy. But until much later in the 19th century, most manufacturing firms weren't even legal companies. They were craze-eyed partnerships involving a hybrid form of the partnership and trust. It was very hard to sue an enterprise. Okay, it was different for railway companies and for certain other statutory companies like utilities. But as late as the 1880s and 1890s, many private sector manufacturing firms lacked legal personality. Now at that point, of course, it's much more difficult to attach tort liabilities to them. But also they were small. Most manufacturing firms only employed a few hundred people, maybe a few thousand at most, into the 1880s. Today's huge corporations with massive assets didn't exist and nor did liability insurance. So I think the explanation for vicarious liability being underdeveloped in the 19th century isn't that the common law is inherently pro-capital. It is that at this point, the modern enterprise didn't exist. Only when it did exist could vicarious liability more effectively develop. Now how did that happen? A company law was part of the story. Salomon and Salomon, the implications of corporate personality, the shareholder entrepreneur, cannot be sued for the debts of the company. This is only the 1890s. And trading assets and other things weren't clearly demarcated from many firms up to this point. But from then on, they very clearly were. And there were other things going on. 1880, Parliament and the Employers Liability Act changes the position with the common employment rule by stipulating that it doesn't apply where the negligence is that of a managerial or supervisory employee. That's important. The law is beginning to recognise there is such a thing as management, that firms are organisations which are managed so a failure of managerial capacity can give rise to liability. In the 1890s, work with compensation comes in, that's a statutory remedy, attaching liability without fault to now the employer as enterprise, the risk related wrongs. And in 1837, we see the invention really by the House of Lords of the non-delegable duty of care. The employer owes a personal duty, not a vicarious liability type obligation, to the injured employee for breach of an obligation to maintain a safe working environment. This is so-called non-delegable duty. Performance of the duty can be delegated. It has to be if the defendant is a company because companies can only operate through real human persons. They have to delegate what they do. Delegation of the performance of the duty is inevitable but liability cannot be delegated. The enterprise or corporate form is liable for the fault of the individual manager or other employee who commits the wrong. But now with non-delegable duty there's no need for there to be a tort committed by the employee in question. That's disappeared. The employer's personal duty means the employer is responsible for a managerial default on organisational failure. And this is enterprise liability. The enterprise can internalise these losses through pricing and insurance but also by changing its managerial practice which the individual employee cannot do. Of course enterprise liability doesn't really exist in English law. It's not a concept we recognise. And vicarious liability very oddly makes a comeback after 1945. Before that point roughly there's almost no possibility of an employee suing in vicarious liability that there were one or two exceptions after the 1880 Act and some other ones. But in 1945 or so the legislature abolished workman's compensation on the grounds of the undue complexity of that body of law and therefore thereby paved the way for vicarious liability to come back. And it's also at the same time in 1948 abolished the defence of common employment. And that's why we see lots of cases on vicarious liability reappearing in the courts in the post-war period that weren't there before. So is this a solution to enterprise liability? No. The big problem with vicarious liability is that it requires the employee to commit a tort. It doesn't work if no tort is committed by the individual worker. So we're not just talking about the employer's personal liability now the individual employee must commit a tort and the employer's vicarious liability liable for it. The problem with this of course is that they're co-defendants. So the employer can shift the loss straight away back onto the individual worker by joining them to the action as a co-defendant. Basic tort law principle of joint liability is the individual employee who's been at fault. The employer was strictly liable. So the court would, if that happened, put the loss right back onto the employee. Lister and the Ronford Ice Company the House of Lords was invited to say that can't happen because of an implied term in the contract of employment but declined to do so. Now Tony Weir in 1976 wrote a case note on a decision called Morris and the Ford Motor Company pointing out the real problem here with vicarious liability. Tony was an opponent of subrogation in other words the right of the insurer, liability insurer to bring an action in the name of the insured against the defendant employee. Tony opposed subrogation and thought he was wrong but maybe the real problem with the Morris cases shifting the loss back onto the employee who has no assets to pay. Tony's case note was deemed so dangerous that the CLJ refused to publish it and it eventually appeared only in 2012. But in the meantime it had been circulated as Samu's Dat style for many years. The CLJ may or may not be more liberal now who knows but probably it is. Now this is what we might call enterprise risk and the logic of enterprise risk is the enterprise bears, the liability risk for the reasons we've been discussing. And this is a very old idea going back to Worker's Compensation. 1908, Court of Appeal Decision on the Worker's Compensation Act. The risk must be instant to the employment. 1999, in Baseline Currie, the Canadian Supreme Court says vicarious liability arises where the enterprise should absorb the risk. And in German law a very similar thing happens. Remember in the German Civil Code of the 1890s there's no provision for vicarious liability until this day vicarious liability doesn't really function in German law in the way it does in English law. There can be vicarious liability in contract and responsibility in agency law but not in tort law. But the courts got round this in the 1950s and 60s by imposing the equivalent to the non-delegable duty of care, the personal duty which arises where there's a defect in management, a defect in the structure of the enterprise. That was the decision in the 1950s and later on in the 1970s. So therefore tort law has been evolving in response to changes in the structure of the enterprise. It evolved in the common law and it evolved in German law. And unlike the farewell case in the 19th century we obviously can't assume here that the German development was in any way influenced directly by the common law one. In fact I'm sure that it absolutely wasn't. So now we come to the contemporary situation. In the arms case where a child placed in care by the local authority is abused by the foster parents, those are intentional torts, batteries which the foster parents have committed. We do have two ways to deal with this issue. We can either deal with it as a case of vicarious liability. We can say the local authority is vicariously liable for the torts committed by the foster parents or we can adapt the notion of a non-delegable duty. We can say that the local authority owed a personal duty to the child to maintain their safety and this duty is non-delegable in the sense that the local authority continues to be under that duty even after the child has been placed in the care of the foster parents. And of course this involves an extension of the employment situation because the Wilson's case in 1930 is essentially saying the limit of the non-delegable duty is a boundary of the enterprise. Only within the enterprise will it work. But now beyond the enterprise there can be a claim that is not in the enterprise, the child, but also the subcontractor maybe the independent contractor, the foster parent, is outside the structure of the enterprise. No-one suggests they're really employed by the local authority. We're extending the principle to imply a non-delegable duty of care outside the organisational frame of the enterprise. But that may be important. It may be very important in a time of fluid enterprise structures, a so-called gig economy age of deliverable and Uber to be clear that the boundary of the enterprise may be somewhat porous. And there can be vicarious liability beyond the formal structures which firms like Uber put in place to limit their liability. Now, the local authority didn't do that in this case, but the issue arises because they could have cared for the child themselves. The local authority could have taken upon itself the responsibility to care for the child and of course had the statutory duty to do that if the child wasn't placed with foster parents. So, when a child is placed with a foster parents, does the local authority continue to have responsibility? Now, because vicarious liability has evolved, we can see arms as a case of exactly that vicarious liability. The Supreme Court in the Christian Brothers case, the various claims in Catholic child welfare society case says, you don't have to have an employment contract, something akin to employment is sufficient to establish the necessary relationship for vicarious liability to work. So, a priest who is not employed by the church, the teacher in the Christian Brothers case, they're in a relation akin to employment. And that suffices to make the ultimate employing responsible body, the church or the organisation of the Christian Brothers responsible for thoughts committed by the priest or the teacher. Of course, the employment test is modified. We no longer use the old salmon test. We say, is there a sufficient connection between the job which the employee is doing and the tort they have committed? So, an intentional tort, you surely can't with the job of the warden in Lista or the foster parent in arms to injure the child, of course not. But it's a sufficient connection organisationally between the job they're given and the tort they commit if there is their camber liability for an intentional tort. So, the courts have developed vicarious liability so quickly. Now, why have they done that? Of course, at one level, they've done it in response to litigation. Why are these cases being litigated? There's clearly something going on in the system here. These cases have been taken all the way to the Supreme Court several times. Why is this issue being litigated? Discontent about the rule? Clearly the courts are under pressure here to adjust it. That doesn't mean they have to but we can see there's pressure coming on the supply side here for a change. But also, non-delegable duty has been extended. It's extended in Woodland beyond the original scope. So, in Woodland a school subcontracts the care of students involved in swimming lessons, the subcontractor is negligent and the child is injured, is a school which has insurance that the subcontractor doesn't liable for the negligence of the subcontractor. Yes, says Woodland and Essex County Council using the theory of non-delegable duty, not the theory of vicarious liability. So, in the arms case, the Supreme Court has basically said vicarious liability and not non-delegable duty is the answer. They say the foster parents were in a situation akin to employment. They're acting sufficiently closely to the job they've been given for this to be within the scope of employment. The local authorities responsibility is vicarious. In the same decision, the Supreme Court has rejected the idea that there should be a non-delegable duty. Now, that is interesting and maybe it's questionable. I think that the issue here is where to place the concept of the non-delegable duty. And here's a map of the whole of private law. This may be partly designed for another lecture as well about pure economic loss. But this is Bishop's point that private law is structured by reference to the economics of information and insurance. And he argues there's a trade-off going on between the degree of fault involved in a duty and its excludability. He says talk law is really about situations where there are high transaction costs. Parties can't negotiate a contract. The law imposes liability but it uses the fault principle to modulate the content of that liability. So going back to Calabresi, not every accident gives rise to a legal claim nor does every intentional wrong. So we use fault to modulate the liability of the enterprise. But vicarious liability is strict. It's based upon the strict liability of the organisation even if the person committing the tort is at fault, which they will be, the organisation isn't. Contract is essentially about strict duties which can be modified. So the modifiability of a duty in contract law is a control device as are remoteness principles which work differently in contract and tort. The danger for vicarious liability is really in the wrong box here. It should move up top left because there should be a relationship between the degree of fault and excludability of duty. Where a duty is non-excludable and what could that be but a non-delegable duty? Non-excludable in a very strong sense. Fault liability, not strict liability would be a better way of dealing with the case. Now of course there is fault in vicarious liability. The individual employee is at fault. But my point here is that that fault is personal to them. Whereas with non-delegable duty the fault we're looking for should be organisational. It should be a fault within the structure of the enterprise or managerial capacity not something which is really rather contingent at the end of the day whether the employee is acting in the scope of their employment. So I favour a move to non-delegable duty because I think that's the best way to ensure enterprises internalise their costs but also gives the courts a mechanism they can use to deal with the problem that liability could be too extensive here if there's no possibility of a control device coming in like fault to modulate the enterprise's liability. But if we make the enterprise strictly liable the enterprise will really be ensuring the victim's loss and that may be a form of liability that's too extreme for defendants to take on. Especially public defendants which are providing public goods and also really have a zero insolvency risk because public bodies cannot go insolvent. There's a real risk of opportunistic litigation not that arms was opportunistic remotely but there is a risk of opportunistic litigation against public bodies because they can never be insolvent whereas private sector firms can ultimately protect themselves by the insolvency route. So my conclusion is that vicarious liability has evolved and it reflects a process which isn't, I think, just a selection of efficient rules. I think it's going too far to say rules are always efficient but they do reflect social pressure. They reflect in the arms case a very clear social pressure for a solution to the liability of a very vulnerable group, foster children. So here's a situation where the law has responded to social pressure but also to changing enterprise and organisational structures. But is vicarious liability the best answer? Probably not. It's a spandrel. It doesn't really work. It has some nice features. It's been around a long time. We may admire it, we may wish to defend it but there are possibly better emerging alternatives. So my conclusion is that possibly arms reached the right result for the wrong reason. I think a non-delegable duty might have been a better solution. But of course the implication of my lecture is that vicarious liability will not be disappearing anytime soon. Thanks very much.