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Copyright (c) 2005 The Alberta Law Review
Alberta Law Review

ARTICLE: A THEORY OF VICARIOUS LIABILITY

October, 2005

43 Alberta L. Rev. 287

Author

J. W. NEYERS *

Excerpt

Vicarious liability occupies a mysterious place in the common law. Our system of wrongs is premised upon fault as justifying why the apparatus of the state is to be marshalled against the assets of one person for the benefit of another. 1 Yet despite this general conception, the law has recognized for centuries that in some cases one person may be vicariously liable for the fault of another. 2 Rather than excising this anomaly on its march towards modernity, as had been suggested by some, 3 the common law continued to develop and rely on vicarious liability to such an extent that it is now generally assumed that any complete theory of tort law must be able to account for its presence. 4 Interestingly, this consensus has emerged in spite of the absence of any comprehensive theory of vicarious liability -- a theory that actually explains the central features and limits of the doctrine. 5

The purpose of this article will be to unravel the mystery of vicarious liability by offering just such a comprehensive explanation of the doctrine. The article will be divided into four parts. Part I will lay out the central features of vicarious liability that need to be explained. Next, Part II will show why the leading rationales fail to adequately account for these rules. Part III will then offer a theory of vicarious liability and demonstrate that it can explain these doctrinal limitations. 6 Finally, Part IV will address possible criticisms of the proposed ...
 
 
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