Wed, 13 Oct 2004 09:57:30 +0100
Vicarious liability for intentional torts
fraud and other torts involving representation different, in that
they involve reliance as an essential element of the cause of action
and it is not appropriate ("just", "fair" or whatever) to impose
vicarious liability in circumstances where the claimant has not
also relied on the agent's ostensible authority to represent the
they are not. This is confusing primary and secondary liability.
If we want to hold a principal primarily liable for a misrepresentation
made by an agent, the statement must be attributed to the principal.
This requires that the agent has actual or apparent authority to
make the statement. If I authorise a statement knowing it to be
untrue I will be liable in deceit, regardless of whether the person
who actually speaks is wholly innocent. My liability is primary,
not vicarious. If the agent has no actual or apparent authority,
any reliance upon the statement is not reliance upon a statement
made by me.
an employer can be vicariously liable for the torts of his employee
is a different question from whether a statement of an agent can
be attributed to his principal. For an employer to be vicariously
liable it is unnecessary for the employer to have made the statement,
anymore than it is necessary for the employer of a bouncer to have
personally stabbed someone in order to be vicariously liable. The
question is whether it is within the scope of the employee's employment.
are two rules of attribution in play: attribution of the torts of
employees to the employer and attribution of the statements of an
agent to the principal.
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