Abstract
The article discusses liability issues related to the contracting out of
welfare services. It focuses on the possible liability of the private actor and of the
public entity towards the individual (the citizen) for non- performance or malperformance
of the welfare service. It is argued that since there is no contract
between the individual and the private service provider there may be several
obstacles to a claim against the private service provider based on contract. At the
same time it is a general tort law principle that there is no vicarious liability for
independent contractors, making it difficult also to succeed with a claim against
the public entity based on tort law. Thus, a liability gap seems to exist. However,
the article demonstrates that there are signs in different jurisdictions that solutions
are being found in case law to this problem allowing to some extent for the
imposition of some kind of vicarious liability on the public entity. Four different
models are identified. The reasoning behind these models varies but they all have
in common that the public law nature of the service that has been outsourced
somehow plays a role.
welfare services. It focuses on the possible liability of the private actor and of the
public entity towards the individual (the citizen) for non- performance or malperformance
of the welfare service. It is argued that since there is no contract
between the individual and the private service provider there may be several
obstacles to a claim against the private service provider based on contract. At the
same time it is a general tort law principle that there is no vicarious liability for
independent contractors, making it difficult also to succeed with a claim against
the public entity based on tort law. Thus, a liability gap seems to exist. However,
the article demonstrates that there are signs in different jurisdictions that solutions
are being found in case law to this problem allowing to some extent for the
imposition of some kind of vicarious liability on the public entity. Four different
models are identified. The reasoning behind these models varies but they all have
in common that the public law nature of the service that has been outsourced
somehow plays a role.
| Original language | English |
|---|---|
| Journal | Journal of European Tort Law |
| Volume | 8 |
| Issue number | 1 |
| Pages (from-to) | 78-99 |
| Number of pages | 22 |
| ISSN | 1868-9612 |
| DOIs | |
| Publication status | Published - 2017 |
Keywords
- Faculty of Law
- welfare services
- contracting out
- Liability, Legal