Corporate liability

Extraits

[...] This decision established and made the triumph of the general test of corporate liability. As a consequence, the flexible test of the 1944 cases was disapproved and in its place, a far stricter took place. It has come to be known as the ‘controlling officer' test. By now, it should be distinghished those senior officers who act and think as the company from the others who are mere servants or agents of the company[24]. However, in respect of statutory offences of strict liability and of mens rea, the identification doctrine seemed to be no longer the appropriate route to incriminate companies. [...]

[...] Lord Haldane had to define the actual fault or privity as applied to a company. He stated in this regard that this fault should be considered as very action of the company itself'[10]. Lord Haldane then put forward the directing mind and will theory in pointing out that a corporation is an abstraction. It has no mind of its own any more than it has a body of its own ; its active and directing mind will must be shought in the person of somebody who is really the directing mind and will of the corporation, the very ego and centre of the personality on the corporation»[11]. [...]

[...] How is this to apply to a large- scale employer? Is the employer to be responsible only where at a board of director level there are no adequate systems in place, or whenever any employee exposes another to such a risk? The Court of Appeal, favouring the latter, held that the section imposed a vicarious liability; there was no escape route for the company in showing that, at a senior level, it had taken steps to ensure safety if, at the operating level, all reasonably practicable steps had not been taken. [...]

[...] Tesco Stores Ltd v London Borough of Brent, op.cit. at p.7. R v Adomako [1995] 1 AC 171 at 187, per Lord Makay of Clashfern, LC. The tests was at first instance approved in Andrews v DPP [1937] 2 All ER 552, HL. R v Stone & Dobinson [1977] 2 All ER 341, CA. R v Kite and OLL Ltd [1996]144 NLJ 1735. Law Commission "Legislating the Criminal Code Voluntary Manslaughter No. 237" Home office consultation document, "Reforming the Law on Involuntary Manslaughter: The Government's Proposals", May 2000. [...]

[...] This leaves a question of law to be decided by the jury who do not give reasons for their decisions. According to the Law Commission there is a lack of any clear definition of the extent of liability for omissions. Adomako may have restricted the scope of duty to act in criminal cases by equating it with that of tort where liability does not flow if a defendant abandons an effort to care for someone (unless he causes harm through his own incompetence). [...]