Date: Wed, 13 Oct 2004 10:05:23 +0100

From: Andrew Dickinson

Subject: Vicarious liability for intentional torts

That was not a confusion present in my mind, and I am sorry if I did not express my posting clearly enough. Whether the agent is liable to the representee cannot, of course, depend on whether he had actual or ostensible authority to represent his principal (the reverse fallacy having been rejected in Standard Chartered Bank v. Pakistan International Shipping Corporation). My suggestion, however, is that different considerations for imposing vicarious liability may apply to torts involving representation from other torts because it would not be just to impose vicarious liability for, e.g., a fraudulent representation in circumstances where the representee did not place reliance upon the agent's authority to make representations. Another suggested reason for the distinction (preferred by Bowstead & Reynolds, para. 8-180) is that the rule in Armagas "sets true limits on the scope of employment in respect of torts of misrepresentation: the dealings which the servant is employed to enter into are in this respect to be identified with respect to his authority".

Andrew

-----Original Message-----
From: Robert Stevens
Sent: 13 October 2004 09:58
Subject: Re: FWD: ODG: Re: 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.

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