Date: Wed, 13 Oct 2004 09:57:30 +0100

From: Robert Stevens

Subject: Vicarious liability for intentional torts

Aren't 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 principal?

No 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.

Whether 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.

There 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.

RS

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