The extent of application of vicarious liability in the civil law during the crisis of pandemic coronavirus COVID-19

The civil law categorizes the civil liability into two main branches: the contractual and tortuous liability, and sub-classify the latter, that is to say the tortuous liability into the liability for the personal acts of the wrong doer and the vicarious liability, or the liability of others, as well as the liability from mechanical machines and other things requiring special attention to avoid their damage. In this article we are aimed at researching the extent of application of vicarious liability to indemnify the public moral or juristic persons for the faults committed by their employees. it is worth-pointing out that the sections (A) and (B) of the article (47) the Iraqi civil law No.40 of 1951 determines the public moral or juristic persons by two moral organs, that is to say, the state itself, the administrations and other public institutions, which by virtue of the law are granted a juristic personality. According to the legal text which provides that (juristic persons are: (a) The state (B) The administrations and other public institutions, which by virtue of the law are granted a juristic personality, independent of the state's personality, in accordance with the conditions laid down here). After mentioning the text which is related to the types of the public moral or juristic persons, we can sub-categorize them into two sub-types: the state and the administrations and other public institutions. We want in this article to be focused on the vicarious liability of the public institutions, including health institutions for the faults committed or perpetrated by their employees, and participating negligently in disseminating pandemic coronavirus COVID-19. We think that the vicarious liability of the public institutions may arise in two separate cases: The first when health sector employees intentionally or deliberately try to communicate with the society during the course of their employment, although knowing that they are suffering from or carrying coronavirus COVID-19. The second when health sector employees do not impose the quarantine intentionally or deliberately on the persons suffering from coronavirus COVID-19. In the both of these cases, two types of civil liability will arise: The health sector employees' liability for their personal acts, the public health institutions' vicarious liability for the tortious or wrongful acts of their employees. Indeed, the second type of civil liability, that is to say, the public health institutions' vicarious liability for the tortious or wrongful acts of their employees. Therefore, in this case both the Iraqi courts and the courts of Kurdistan region should apply the article (219) of the Iraqi civil law No.40 of 1951, which provides that (1-Governments, municipalities and other institutions which perform public service, as well as every person who exploits an industrial or commercial enterprise, are liable for the damage (injury) caused by their employees, if the injury resulted from an encroachment committed by them in the course of their service. 2-The employer will be able to relieve himself or herself from liability, if he or she establishes that he or she had exercises the necessary care to prevent the injury, or that the injury would have happened, even if he or she had exercised the necessary care). Reading this text, we can conclude that realization or materialization of the public health institutions' vicarious liability for the tortious or wrongful acts of their employees concerning the dissemination of the pandemic coronavirus COVID-19, requires the availability of three basic conditions: The first is the presence of dependence relation between the employer and the employee, The second is the employee's committing or perpetrating the fault, The third is the perpetration of the employee's fault during the course of his or her employment. as far as these conditions are concerned we analyze them to ascertain the realization of the public health institutions' vicarious liability for the faults committed or perpetrated by their employees, and participating negligently in disseminating pandemic coronavirus COVID-19. As follows:

1- The presence of dependence relation between the employer and the employee: this condition is characterized by the actual authority exercised by the employer to control or supervise the employee. There should have been a relation of public office between the employer and employee, or at least a contract of employment between them.

2- The employee's committing or perpetrating the fault: according to the text of the second section of the article (219) of the Iraqi civil law, the fault committed or perpetrated by the employee concerning the dissemination of the pandemic coronavirus COVID-19, is represented by two forms: The first when health sector employees intentionally or deliberately try to communicate with the society during the course of their employment, although knowing that they are suffering from or carrying coronavirus COVID-19. The second when health sector employees do not impose the quarantine intentionally or deliberately on the persons suffering from coronavirus COVID-19, although knowing the danger of this situation. In fact, the fault committed by the employee in the both of the afore-mentioned situations is a rebuttable presumed fault. This means that the employer will be able to relieve or exonerate himself or herself from liability, if he or she establishes that he or she had exercises the necessary care to prevent the injury, or that the injury would have happened, even if he or she had exercised the necessary care. The second case of exoneration refers to the negation of causal relation by proving extraneous cause.

The perpetration of the employee's fault during the course of their employment: If the fault is committed outside the course of their employment, the vicarious liability of the public health institution will not arise.