Recasting Vicarious Liability

Morgan, Phillip

doi:10.1017/s0008197312000840

Cited by 11 publications

(2 citation statements)

References 12 publications

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“…This can be traced back to Roman law where a master was held liable for a slave's conduct (Beuermann, 2022). Since then, the use of vicarious liability has broadened as a result of expansion in commerce and industry and the inclusion of the relationship between employer and employee and principal and agent (Morgan, 2012;Arshad Zainal Abidin v Shell Malaysia Trading Sdn Bhd & ors [2023] 1 LNS 685).…”

Section: Introductionmentioning

confidence: 99%

Analysing the Conditions for Establishing Vicarious Liability in Malaysia

MOHAMMED NAZMI,

ABDUL JAMAL,

SHAARI@MAT SAMAN

et al. 2023

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Amidst the realm of employment scenarios, there are cases where an employee’s actions caused injury to their victims. Generally, an employer may be held vicariously liable for its employee’s actions, subject to several conditions. The research found that while the concept of vicarious liability has been long recognised in Malaysia, there is still a question over the test used by the court in determining “the course of employment.” The test to determine “the course of employment” has evolved over time, transitioning from “frolic of his own” to a “close connection test,” as affirmed in GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin Bin Mohamed Amir [2022] 6 MLJ 369. In this case, the Federal Court held that the employee’s shooting was closely connected to his employment, and that it would be fair and just to hold the employer vicariously liable, despite the fact that his actions may have been unauthorised by the employer. However, this flexible approach may offer limited protection to the latter. This research therefore aims to analyse the conditions for establishing vicarious liability in Malaysia, particularly the test employed by the court, to determine whether the defendant’s actions fall within the course of employment. This research adopts a doctrinal approach involving a detailed analysis of the relevant case law and scholarly writing related to this area. Keyword(s) : employment; vicarious liability; close connection test; liable; protection

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Section: Introductionmentioning

confidence: 99%

Analysing the Conditions for Establishing Vicarious Liability in Malaysia

MOHAMMED NAZMI,

ABDUL JAMAL,

SHAARI@MAT SAMAN

et al. 2023

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“…In the presence of these factors, robust human control and foresight is constrained, and causation difficult to prove. As such, responsibility and liability 'gaps' can arise (Morgan, 2024;Morgan, 2023;Burton et al, 2020;Matthias, 2004).…”

Section: Introductionmentioning

confidence: 99%

Distinguishing two features of accountability for AI technologies

et al. 2022

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Policymakers and researchers consistently call for greater human accountability for AI technologies. We should be clear about two distinct features of accountability.Across the AI ethics and global policy landscape, there is consensus that there should be human accountability for AI technologies 1 . These machines are used for high-stakes decision-making in complex domains -for example, in healthcare, criminal justice and transport -where they can cause or occasion serious harm. Some use deep machine learning models, which can make their outputs difficult to understand or contest. At the same time, when the datasets on which these models are trained reflect bias against specific demographic groups, the bias becomes encoded and causes disparate impacts 2-4 . Meanwhile, an increasing number of machines that embody AI, and specifically machine learning, such as highly automated vehicles, can execute decision-making functions and take actions independently of direct, real-time human control, in unpredictable conditions that call for adaptive performance. This development can make human agency seem obscure. Considering these problems, a heterogeneous group of researchers and organizations have called for stronger, more explicit regulation and guidelines to ensure accountability for AI and autonomous systems 1,[5][6][7] .But what do we mean by 'accountability', and do we all mean the same thing? Accountability comes in different forms and varieties across rich and overlapping strands of academic literature in the humanities, law and social sciences. Scholars in the AI ethics field have recently proposed systematic conceptualizations of accountability to address this complexity [8][9][10][11] . Several researchers in the field 8,10 take explicit inspiration from Bovens's influential analysis of accountability as a social relation, in which he describes accountability as: "a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences" 12 .A welcome development within the AI ethics landscape would be greater conceptual clarity on the distinction between the 'explaining' and 'facing the consequences' features of accountability, as well as the relation between them.This matters ethically, legally and politically, as these two core features of accountability -that is, giving an explanation, and facing the consequences -can come apart and pull in different directions. We highlight them because, as the quotation illustrates, they represent a central bifurcation of the concept of accountability 12,13 . In addition, their relation is particularly complex when it comes to AI technologies.

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The Institutional Laundry: How the Public May Keep Their Hands Clean

Kirby

2023

J Ethics

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A number of recent authors have argued for the problem of ‘democratic dirty hands’. At least within a democracy, public officers can be rightly said to act in the name of the public; and thus, as agents to principals, the dirty hands of public officers are, ultimately attributable to that public. Even more troubling, so the argument goes, since dirty hands are necessary for public officers in any stable political order, then such democratic dirty hands are necessary for any stable democracy. Our dirt is the unavoidable cost of democratic survival.In this paper, I offer an argument against this disconcerting conclusion. My central claim is that proponents of ‘democratic dirty hands’ have missed the import of another feature of contemporary governance: public institutions. Public institutions, as organisational agents, intermediate the relationship between public officer and public; and in so doing, the dirt necessary for stability may be ‘laundered’: the public may still gain the benefit of a public officer’s hands, but remain clean of the dirt. I illustrate this case by an extended discussion of the case of La Comisión Internacional contra la Impunidad en Guatemala (‘CICIG’).

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Recasting Vicarious Liability

Cited by 11 publications

References 12 publications

Analysing the Conditions for Establishing Vicarious Liability in Malaysia

Analysing the Conditions for Establishing Vicarious Liability in Malaysia

Distinguishing two features of accountability for AI technologies

The Institutional Laundry: How the Public May Keep Their Hands Clean

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