Mixed And Vicarious Liability―A Suggested Distinction
| Published date | 01 March 1966 |
| Date | 01 March 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01112.x |
MIXED AND VICARIOUS LIABILITY-A
SUGGESTED
DISTINCTION
INTRODUCTION
A
PERSON
is generally liable for the consequences of his own acts.
The law lays down certain conditions under which liability is
created;
it
arises whenever the individual's personal conduct .meets
these conditions. Thus, for example, we are wont to say that
a
person under
a
duty of care will be held liable for negligence if his
conduct constitutcd
a
breach of this duty, and damage resulted
from the breach:
a
person will be hcld liable for fraud where he
himself made
a
false representation of fact to another party,
knowing
it
to be false and intending
it
to be acted upon, and
it
was
in
fact acted upon by the other party, to
his
detriment.
In
these
cases, the person is held liable for the consequences of his own acts.
The liability is, in o!her words, personal.
There arc, however, situations
in
which
a
person incurs liability
as
a
result not
of
his own acts but of the acts
of
other persons, whose
liability is imputed to him by law.' This is what is known
as
vicarious liability. A master is liable for the tort of his servant
although
it
is not the master's acts which gave rise to the liability.
In
order to hold the master liable
it
is sufficient and necessary that
the servant has committed the tortious act in the course of his
employment.2 While we speak of personal liability whenever the
person held liable has by his own conduct fulfilled the conditions
under which
it
is created, in cases of vicarious liability
it
is the
servant who fulfils these conditions and thereby renders his master
liable who has not acted tortiously at all.
Heretofore, liability has always been classified exclusively
according to these two types. Any case which could not be placed
in the category of personal liability was classed
as
vicarious liability,
and vice vcrsa.8 This rigid classification gave rise to
a
number of
difficulties, both of
a
theoretical and
a
practical nature. First,
when the doctrine of common employment still prevailed
in
the law
of
torts,
a
master was hcld liable if the act of his servant caused
injury to anothcr servant whenever some breach of the master's
duty was involved in the servant's act. Had this liability of the
master been regarded
as
vicarious,
it
would have been prccluded by
1
Staoelcy
Iron
and Chemioal
Co.
Ltd.
v.
Jonee [lQG8]
A.C.
827;
Imperial
Seo
Vicarioue
Liability: Tort
of
tho Mnetor
Chemical Zndustrie8 Ltd.
v.
Shatwell
[lo64
2
All
B.R.
099.
procedural
reaeone,
ovon though ho
ie
liable under the substantive
law.
Broom
v.
Morgan
[lo581
1
Q.B.
697;'
or
of
tho
Servant
2
It may be, howovor, that
an
action cannot
b
o
brought againet tho eorvant
for
3
800
analyeia
by G!mvillo Williame,
(19515)
72
L.Q.R.
822.
100
To continue reading
Request your trial