Date: Wed, 13 Oct 2004 14:05:45 -0400

From: Jason Neyers

Subject: Vicarious liability for intentional torts

Dear David:

While no expert on the history of VL, if I remember correctly, (at least some of) the original justifications for VL were not necessarily social policy but rather theories based upon agency (acting through another is acting yourself) or comparative fault (the one who places trust should lose).

The social policy justifications only really took complete hold when everyone began to realize that the proposed theories could not actually explain the doctrinal limits of VL. Once judges could not find a readily useable theory they retreated into precedent following and/or stating that it was based on policy justifications.

So from what I remember of the historical perspective, one can see principle give way to confusion give way to policy. The question then becomes whether VL can be seen to be based on principle, hence completing the circle, or whether policy is all that we are left with.

I think VL can be explained in terms of justice, not policy but as Harold has said, such a demonstration would require a paper. (By the way, that paper is substantially complete should anyone be interested in reading it).

Cheers,

David Wingfield wrote:

Thanks for the email. But, social policy underlies traditional theories of vicarious liability for involuntary relationships too. There is nothing inherent in tort law that requires any one other than the direct tortfeasor to be liable for injuries caused to a third party. Vicarious liability in these cases was created out of social need, not because a legal category had to be extended by reasons of logic. Therefore, I don't think that in Bazley the court was conjuring up personal duties and faults. Rather, the court was trying to find the principles that underlie the imposition of tort liability on organisations which, by definition, have only legal but no physical relationships with natural persons. In other words, how far does the legal relationship extend? Does it extend to the obligation to prevent harm?

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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