DOI: 10.14457/tu.the.2016.736
title: 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

description: The doctrine of vicarious liability in English law has undergone significant development in the last few years. This has been due to a number of recent cases the facts of which did not easily fall within the previous legal tests which had endured for some years. The UK Supreme Court, in reviewing and reshaping the doctrine, has focused on the legal principle and policy bases and has given clear statements that the doctrine should aim at compensating victims predominantly on the basis of enterprise risk theory. Enterprise risk theory dictates that a business should be responsible for damage arising from all the risks which are caused or enhanced by its operation, adopting a concept aligned with distributive justice rather than corrective justice which is more usual in tort law. Although the UK Supreme Court has made clear statements about the policy and principle basis of the doctrine, uncertainty remains over the application of the test for when, and for whom, vicarious liability may arise.Section 425 of the Thai Civil and Commercial Code appears to contain the same requirements for conferring liability on an employer for the acts of her employee as the doctrine of vicarious liability in English law. These elements are (i) the requirement for a particular relationship, employer-employee, and (ii) the requirement that the wrongful act be committed in the course of employment. Indeed, the requirements of Section 425, when read with other connected sections in the Thai Civil and Commercial Code, demonstrate a fundamentally different legal concept to the stated sources of the Section, namely one that is strict (non-fault based) liability confined to the relationship of employer and employee. However, these are the same concepts that were present in English law vicarious liability at the time of the adoption of the Thai Civil and Commercial Code, which may suggest the influence of English law on the key draftsmen (who had received extensive legal education in England).The similarity in the requirements presents the opportunity for a useful comparative analysis. Although English law vicarious liability has previously been compared to the position in other common law jurisdictions and Western European jurisdictions, this thesis offers the opportunity for a detailed examination of how a fundamentally similar rule has developed in a system which differs in terms of traditional legal categorisation (common law and civil law), geographical position (West and East), and standard economic classification (developed and developing). The objectives pursued by this thesis are to study and analyse the legal doctrines of both systems, to develop and present a clear picture of the theoretical underpinnings of the legal concepts, to analyse how those concepts have evolved, to apply the current Thai law to the fact patterns that have recently challenged English law, and to therefore be able to make recommendations for the future development of both systems.This thesis argues that both systems appear to recognise the policy basis of enterprise risk theory, but that there are areas in the tests of each system which do not fully accord with this policy basis.  Although Thai law relies on the control test for the establishment of the relevant relationship which was abandoned by the English courts as too restrictive, the Thai law interpretation of the test is broader and may therefore avoid some of the issues that have beset the English courts. Nevertheless, using a test based on control does not fit well with enterprise risk theory. However, the English integration/organisation test, which purports to align more closely with enterprise risk theory, does not appear yet to be well adapted to dealing with situations where multiple parties benefit from a business’ activities. The Thai Dika Court’s approach in these situations is to be preferred. Finally, it appears that Section 425 may, similarly to English law prior to the most recent line of cases, be unable to confer liability on an employer for extreme acts which, although not committed strictly in the course of employment, are nevertheless closely connected with their assigned tasks. A broadening of the liability under Thai law to take such situations into account is therefore recommended.