Vicarious Liability: Basis and Justification

In one line

Vicarious liability makes one person answerable for a tort committed by another because of the relationship between them.

In the wording a student can write in an exam: vicarious liability is the liability of one person for the tort of another, arising not from any fault of his own but from the relationship between them; its basis is expressed in the maxims qui facit per alium facit per se, he who acts through another acts himself, and respondeat superior, let the superior answer; it requires a relationship the law recognises, a tort committed by the person for whom liability is imposed, and a connection between the tort and that relationship, ordinarily that it was committed in the course of employment.

The two maxims

Qui facit per alium facit per se means "he who acts through another acts himself". It expresses the idea that a person who gets his work done by another is doing it himself, so the law treats the other's wrongs in that work as his.

Respondeat superior means "let the superior answer". It expresses the idea that the person in the position of authority, and of means, should answer.

The three requirements

1. A relationship the law recognises. Master and servant is the principal one; principal and agent, partners, and in some circumstances a person who lends his servant or his vehicle, are others. Chapters [Who Is a Servant] and [Other Relations that Attract Vicarious Liability] work them out.

2. A tort committed by the other person. There must be a wrong for which the servant himself would be liable. Vicarious liability is not a separate tort.

3. A connection between the tort and the relationship. For a servant that connection is the course of employment, which chapter [Course of Employment] works out.

Why the law does this: the justifications

This is the part of the topic MU prints in terms, and it is what turns a definition into an answer.

Control. The master chooses the servant, directs the work and can stop it. A person who has that power should answer for how it is used.

Benefit. The work is done for the master's benefit, and it is fair that the person who takes the profit of an activity should take its losses. This is sometimes put as: the risk is a cost of the enterprise.

Loss distribution and the deep pocket. The master can insure, and can pass the cost into his prices; the injured person can do neither. Chapter [The Object of the Law of Torts] shows how this reflects the loss-distribution object.

Deterrence. A master who bears the cost of his servants' wrongs will select and supervise them better.