Date: Wed, 13 Oct 2004 10:44:52 +0100

From: Robert Stevens

Subject: Vicarious liability for intentional torts

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.

What are these considerations? Why not just? Again, if the agent has no actual or ostensible authority the statement cannot be the principal's, but why is this necessary for vicarious liability? We do not usually say that the employer must personally have committed the actus reus of the tort for him to be vicariously liable, whether it be driving a car, stabbing someone or making a statement. I can well see how it is essential for the purposes of primary liability (Williams v Natural Life must be a primary liability case for example).

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".

This seems to me to be just an assertion not a reason. If it is true to say that the test for whether a tort of misrepresentation is within an employee's scope of employment is determined by whether he has actual or ostensible authority, why is a dramatically different test used in relation to other torts (cf Lister)? The employee in The Ocean Frost would seem to me to satisfy the 'close connection' test.

RS

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