Week 9 – Vicarious liability of employers in German law
In this final blog, I wish to look at vicarious liability in German law, and specifically, the liability for harm caused by employees. Under the relevant paragraphs of the BGB, liability of an employer arises for any injury, unlawfully caused to another through the accomplishment of a task set in the course of one’s business. The liability of the employer can only be rebutted if reasonable care has been exercised in choosing the employee, or if the injury would have occurred anyway, regardless of a higher standard of care.
In itself, this definition differs fundamentally from those provided by English and French law, which generally offer no particular way of escaping liability once it has been established vicariously for employers. In Germany, liability can be escaped through the lack of fault or the lack of causation, according to §831 (1) BGB. This therefore means that a distinct regime of workers liability is not present, as it is in France or England. Instead, a slightly differing regime for presumed fault operates for employers and employees, within standard German tort law.
Such an exclusion clause may seem very much at odds with English and French law. However, the prevalence of employers indemnity insurance often allows for a bit of flexibility in English law, as noted in academia. This does blur the lines between true liability in tort law cases involving employers, and I feel that excluding factors such as on offer in the BGB could help to clarify certain situations and provide similar levels of protection where necessary. The English system seems reluctant to admit any defences once the necessary criteria have been established, bar subsequent developments such as contributory negligence or because of the assumption of some risk.