THE LIABILITY OF EMPLOYERS FOR THE ACTS OF THEIR EMPLOYEES: A COMPARATIVE ANALYSIS OF SECTION 425 OF THE THAI CIVIL AND COMMERCIAL CODE AND VICARIOUS LIABILITY IN ENGLISH TORT LAW*

Abstract

The doctrine of vicarious liability in English common law confers strict liability on one person for the wrongful act of another. The classic example is where an employer is held liable when an employee commits a tort in the course of their work. Since the turn of the 21^st century, vicarious liability has been significantly developed by the courts in response to a line of challenging cases which did not easily fall within the previous tests. Now that the doctrine has been materially expanded, there remains some uncertainty over its application.

Section 425 of the Thai Civil and Commercial Code (TCCC) confers liability on an employer for the wrongful acts of an employee in materially similar circumstances to the historic English law test. This provides an opportunity for a fruitful comparative exercise on how these similar legal concepts have been interpreted in fundamentally different legal systems.

The comparative exercise performed in this article reveals a similar enterprise risk theory concept underlying both English law vicarious liability and Section 425 of the TCCC. However each system aligns more closely with this theory in different aspects. This provides the opportunity to make recommendations that each system adopt some features of the other, to bring the two legal concepts into closer alignment with the identified policy basis.