Mixed and Vicarious Liability

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Mixed and Vicarious Liability. A Suggested DistinctionAuthor(s): Aharon BarakSource: The Modern Law Review, Vol. 29, No. 2 (Mar., 1966), pp. 160-169Published by: Wileyon behalf of the Modern Law ReviewStable URL: http://www.jstor.org/stable/1092972.

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MIXED AND VICARIOUS LIABILITY-ASUGGESTED DISTINCTIONINTRODUCTION

A PERSONis generally iable for the consequencesof his own acts.The law lays down certain conditions under which liability iscreated; it ariseswhenever he individual'spersonalconductmeetsthese conditions. Thus, forexample,we are wont to say that apersonundera dutyofcarewill be held liable fornegligencef hisconductconstituted breach of this duty, and damage resultedfrom he breach: a personwill be held liable forfraudwherehehimselfmade a false representation f fact to another party,knowingt to be false and intendingt to be acted upon,and it wasin fact acted upon by the otherparty,to his detriment. In thesecases, theperson s held iable fortheconsequences fhis own acts.The liabilitys, in otherwords,personal.Thereare, however, ituations n whicha person ncurs iabilityas a resultnot of hisown acts butof the acts of otherpersons,whoseliability s imputedto him by law.' This is what is knownasvicarious iability. A master s liable forthe tort of his servantalthough t is not themaster'sacts whichgave riseto theliability.In order o hold themaster iable it is sufficientnd necessary hatthe servanthas committed he tortiousact in the course of hisemployment.2While we speak of personal iabilitywhenever hepersonheld liable has by his own conduct fulfilled he conditionsunder whichit is created,in cases of vicariousliability t is theservantwhofulfils heseconditions nd thereby endershis masterliablewho has not actedtortiouslyt all.Heretofore,liability has always been classified exclusivelyaccording o these twotypes. Anycase whichcould not be placedinthecategory fpersonal iabilitywas classedas vicarious iability,and vice versa.3 This rigidclassification ave rise to a numberofdifficulties,oth of a theoretical nd a practicalnature. First,whenthe doctrine fcommon mploymenttillprevailed n thelawof torts,a master was held liable if the act of his servant causedinjuryto anotherservantwhenever ome breach of the master'sdutywas involved n the servant'sact. Had this liabilityof themasterbeenregarded s vicarious, t wouldhave beenprecludedby1 Staveley Iron and Chemical Co. Ltd. v. Jones [1956] A.C. 627; ImperialChemicalIndustries Ltd. v. Shatwell [1964] 2 All E.R. 999.2 It may be, however, hat an action cannotbe brought gainst the servantforproceduralreasons, even thoughhe is liable under the substantive aw. SeeBroomv. Morgan [1953] 1 Q.B. 597.3 See analysis by GlanvilleWilliams, Vicarious Liability: Tort of the Masteror of the Servant (1956) 72 L.Q.R. 522.160

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MIXED AND VICARIOUS LIABILITYthe doctrineof commonemployment; ince it was felt,however,thatin that situation masteroughtto be liable, his liabilitywasclassified s personal.4 Now it is certainly rue that the master'sliability n this case was not vicarious,but it is equally truethatit was not personal.5 The masterwas not beingheld liable foratortious ct of his servant n thecourseofemployment; or,on theotherhand, did he incurliabilityforhis own tortiousact. Themasterwas held liable because the servantbreacheda dutywhichhe, themaster,owed. This liabilityhad something f a vicariouscharacter,since the conduct which caused the damage was theservant's; but it had also something f a personalcharacter, inceit onlyaroseas a resultof a breachof themaster'sduty.Another nstance occurswherea servantmakes a false repre-sentation ffactbelieving t to be true,and a fellow-servantnowsthe representationo be false,but deliberately onceals his know-ledge; themasterwill be liable.6 The master's iability n this caseis not personal, ince t was not he who made the falserepresenta-tion; norcan it be vicarious, inceno tort has been committed yany of his servants.In these two cases, and in various other situationsdescribedbelow,the liability s, we suggest, n fact of a third, ndependentkind; a person s held liable for the act of anotherand hencehisliability s not personal; yet he is liable for the other'sconduct,7and not forhis tort.8 Since the other's conduct s imputedto him,it is he who incursthe original iability. Thus it cannot be thevicarious liabilityof a master for his servant's tortious acts inthe course of his employment. Hence it is suggestedthat thisliabilitybe termed mixed, since it combines elementsof bothpersonal nd vicarious iability.

WHEN IS ONE PERSON'S CONDUCT IMPUTED TO ANOTHER ?In imputing ne person'sconductto another, he mainquestion s:Underwhatcircumstancesnd according owhat criteria s conductimputed o another For thispurposewe mustfurther istinguishbetweenmixed liabilityof a master and mixed liability n othercases. If there s no master-servantelationship, he scope of theduty imposedon a person by the law of torts will determine heextent to which another's conduct is imputedto him. Where,4 Wilsons; Clyde oalCo.v. English1938]A.C.67; Lochgellyron4 CoalCo.Ltd.v.M'Mullan1984]A.C.1.5 For criticismof the use of the term personal liability to describe thesecases, see GlanvilleWilliams, Liabilityfor ndependentContractors [1956]C.L.J. 180.6 Armstrongv. Strain [1952] 1 K.B. 232; and see Glanville Williams,VicariousLiability, op. cit. in note 3 above.7 This approach must be distinguishedfromProfessor Goodhart's suggestionwhichregardsthe imputing ftheact as a case of vicarious iability. See Notein (1953) 69 L.Q.R. 296.8 The term tort is used here in a substantive ense only. See note 2 above.

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THE MODERN LAW REVIEWhowever, master-servantelationshipxists,theservant'sconductis imputedto his master; first n accordancewith the scope of theduty (imposed by the law of torts) incumbenton the master;secondly, f no such dutybe foundto exist,whenever he servantactedwithin hescopeofhisemployment.Wheremixed iabilityfortheconductof another s incurred ythe breachof a duty,9 uch a duty s generally eferred o as beingnon-delegable. 10 This usage is undesirable. Even where dutyis delegable, uchas thedutyoftheoccupier fthepremises owardsvisitors,la thirdpartymayhave beenresponsible or heact whichconstituted breach of the duty.l2 The problem s not one ofdelegating fduty,but of its performance.'3An absoluteduty,forexample, s notdischarged y delegating ts performanceo a thirdparty. So longas thethirdpartyhas notfulfilledheduty t is notdeemeddischarged.14A dutybased on the aw ofnegligence, n theotherhand, is merelya duty to take reasonable care under thecircumstances,nd may in some cases be dischargedby delegatingits performanceo an expert,15s, forinstance,whereit is of atechnicalnature.'lEven wherethe duty is delegable, the owner of the duty isnot delegating it. The owner s fulfillingis duty. The personto whom the duty is delegated acquires a new duty. Thescope of his duty mightbe different romthe scope of the dutydelegated to him.We shallnowdescribe ach ofthesesituations n further etail.(a) Mixed iabilityn the absenceofa master-servantelationshipWherethere s no master-servantelationship, person'smixedliability s determinedccording o the scope of his personal duty.The stricterheduty,thegreater he number fpersonswhoseactswill be imputedto himand, consequently, he widerthe scope of9 It should be noted that the term duty used in this context does not bearthe technicalmeaning of duty under the law of negligencebut is meant toinvolve verykindofduty mposedbythe aw oftorts.10 GlanvilleWilliams, Liability for ndependentContractors, p. cit. in note 5above.11 Haseldine v. Daw (C. A.) d Son Ltd. [1941] 2 K.B. 343.12 See, for nstance,Corbyv. Hill (1808) 4 C.B.(N.s.) 66; Coates v. RawtenstallCorporation 1937] 3 All E.R. 602; Pearson v. Lambeth B.C. [1950] 2 K.B.353.13 Wilsons& ClydeCoal Co. v. English [1938] A.C. 57 at p. 83, perLord Wright.14 Cassidyv. Ministry fHealth [1951] 2 K.B. 343.15 In Davie v. New Merton Board Mills Ltd. [1959] A.C. 604 it was held that amaster discharges his duty towards his servants by buying tools from areputablemanufacturer. In Phillips v. BritanniaHygienic Laundry Co. Ltd.[1923] 1 K.B. 539 it was held that a car-ownerdischargeshis duty towardsother persons using the highwayby entrusting he repair of his car to anexpertmechanic.1e Greenv. Fibreglass Ltd. [1958] 2 Q.B. 245; Bloomsteinv. Railway Executive[1952] 2 All E.R. 318; Woodwardv. Mayorof Hastings [1945] K.B. 174 (anoccupier discharginghis duty towards a lawful visitor by delegating itsperformanceo an independent ontractor).

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MIyR.n AND VICARIOUS LIABILITYhis liability. The less exactingthe duty, the smaller the numberofpeoplewhoseacts will be imputedto him,and thenarrowernconsequence he scopeofhis liability.Accordingto the commonlaw, the commoncarrierowes anextensive utytowards heconsignor. The duty[ofthecommoncarrier] s not merely ne of reasonablecare, but a strictduty ofinsuranceagainst the loss of or damage to the goods. 17 Thecommon arrier s generally8 liableifthegoodsarelostordamagedby the act of a thirdparty. Thus, while the duty is imposedupon thecommon arrier, he breach s incurred y the conductofanother,and the commoncarrier s consequentlyunder mixedliability.While less exactingthan a commoncarrier'sduty,the duty ofthe ownerof a fieldto preventthe spread of fire s also quiteextensive. He is liable fora fire tartedby anotherprovidedthatthe other was not a stranger.19Thus, the acts of his servants,independentontractors,hemembers f hishousehold,nvitees ndlicensees re all imputed o him.20Here, again, theduty s his andits breachis incurredby the acts of another, o that he is undermixed liability.Anoccupier wes a common utyof care towards lawfulvisitoron his premises.21 f thevisitor s injured s a resultofthe acts ofa thirdpartytheoccupierwill be liable ifthe thirdparty'sconductis foreseeable.22n thatsituation heoccupierowes a dutyofcare,and theconductof thethirdparty onstitutes breachof theduty.The occupier s, in consequence,under mixed iability.We have alreadynotedthat themoreextensive hedutyowed,the greaterthe numberof personswhose acts may result in itsbreach. In the case of a strictduty,such as that of the commoncarrier, hebreachmayhave beendue to theconductofany personwhatsoever. In thecase ofthe iability ftheowner f thefield ordamage by fire, hewrongfulct mayhave been committed y anypersonwhowas not a stranger. In thecase of theoccupier, t mayhave been committedby any person who was lawfullyon thepremises nd was foreseeablyikelyto commitan act that wouldcause damage.(b) The mixed iability fmasters

A mastermay of coursebe liable undermixedliability ust asanyoneelse. His case, however, s exceptionalbecause he may beliable underthe rules of mixed liability althoughhe was not17 Paton, Bailment n the CommonLaw (1952), p. 237.18 With the exceptionsof acts of God, King's enemies,an inherentvice in thegoods and consignor'sdefault: Paton, ibid.19 Balfourv. Barty-King 1957] 1 Q.B. 498.20 Salmond,Torts (14thed., 1965),pp. 4688-469.21 Occupiers' Liability Act 1957, s. 2 (2).22 Glasgow Corporation . Muir [1943] A.C. 448.

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THE MODERN LAW RIVI1cWunderany personalduty,while in such circumstances ne not amasterwould not incur mixed iability.The case, alreadynoted,ofthemasterwho is held liable forthefalserepresentationf his innocent ervantwhere anotherservantwas awareoftheerror ut deliberately emained ilent s not a casewherethe masterowed a personaldutytowardsthe injuredparty;nevertheless e is held liable. Another xample is an occupierofpremiseswhois also an employer. If a servantgranted licence orinvitedthe injuredpersonto enterthe property, he law imputesthegranting fthe icenceorthe nvitation o the master. Yet thisis not a case ofvicarious iability, ince, t was neither hegrantingofthelicence northe invitationwhichconstituted hetortious ct.Moreover, he criterion or mputing o the occupier-employerhegranting f the licence or invitation annot be derivedfromanypersonalduty on his part, since the very scope of that dutywilldepend on whether he licence or invitationwas in fact granted;clearlythe duty towardstrespassers s not the same as the dutytowards awfulvisitors.In thesetwo cases, i.e., offraud or occupier's iability, he lawimputes heconductofthe servant o themaster, ccording o thetest not ofthe scope ofany dutyon thepartof themaster,but ofthescopeof theemployment.28 ence the similarity etween hesecases and those of vicariousliability; the test for imputingtheconductof a servantto his master n thesecases is identicalwiththetests for mputing he tortofa servant o hismasterundertherulesofvicarious iability. But it is erroneous o concludefrom hisidentity hat the legal natureofmixed iability s indistinguishablefrom hat ofvicarious iability. Applicationof the same test doesnotnecessarilymply he sametypeofliability.We cannot explain cases of vicariousliabilityon the basis ofimputing he conduct as distinct rom he tort)of the servanttohis master. If the servant wes a dutyof care towards he injuredparty,and is in breachof thatdutyby his negligent onduct,themaster s liable, althoughwe cannot mputeto the masterthedutyof the servant. There s no suchthing s vicariousdutyofcare.The duty is a result of the special circumstancesn which theservantwas present. The masterwas not present n such circum-stances. We cannotput the master n a position n whichhe neverwas, in order o imposeon him a dutyofcarehe neverowed.In a particular ituationbothmixedand vicarious iabilitymaybe present; on the otherhand theremay be liabilityof one typeonly. Supposea servant ermits hitch-hikero boardthemaster'svehicle; the hitch-hikers then njuredas a result of the servant'scareless driving. Obviouslythe vicariousliabilityof the masterdependson whether, t the timeof the accident,the servantwas28 Shrimptonv. Hertfordshire ountyCouncil (1911) 104 L.T. 145; Breslin v.London t NorthEast Ry., 1936 8.C. 816; Koehler v. PentecostalAssemblies(1957) 7 D.L.R. 2d 616.

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MTXRD AND VICARIOUS LIABILITYacting n the courseof his employment.24 he mixedliabilityofthemaster, n the otherhand,dependson whether helicencetoboardthevehiclewas granted n the course of employment.25 heservantmay have been actingwithin he scope of his employmentbothat thetime when he granted helicenceand at thetime of theaccident; but it is also possiblethathe was acting n the courseofhis employmentt one timeand notat theother.

MIXED LIABILITY AND THE ACTOR' MOTIVEWhena person,byvirtueofhispersonalduty, s held liable fortheact of another,the motive of the latter in acting as he did isirrelevant.The breachofthedutyoccurs evenwhere personwasactingforhisownendsandnot on behalfof the otheron whomthedutyis imposed.26This is not the case where iability s testedbythe scope of employment; n that situationthere is no liability(vicariousormixed)on thepartofa master ftheservant ctedforhis ownendsand not on the master'sbehalf.27An employer as, for nstance, dutyto providea safe methodof work n his factory. Should therebe a mentallyunstable work-man in the factorywho, to the employer'sknowledge,was in thehabit ofgoingberserk nd striking isfellow-workers,heemployerwould be held liable for an injurycaused by such an outburstaccordingto the principles f mixed liability,28ince he had notestablished method of workwhich would preventthe dangerousworkman rom njuringhis mates; but he could not be held liableon theprinciple fvicarious iability incetheworkman'soutburstwas unconnectedwiththepurposesofhis employment.29

MIXED LIABILITY AND THE ACTOR'S OWN LIABILITYUndertherules ofmixed iability t is theconductof anotherparty(i.e., the actor ) which s imputed o thepersonheldliable, andnotthe actor'storts. The distinctions important,incea manmaybe liable undertheprinciples f mixed iability forthe conductof another,who does not incur any personal liabilitywhatever.Thus, for example, a factoryworker who injured his fellow-workmanmaynot be underanyliability ince, n the circumstances24 Newark, Twinev. Beans' ExpressLtd. (1954)17 M.L.R. 102.25 Twinev. Beans' Express Ltd. [1946] 1 All E.R. 202.a6 The CoupdCo. v. Maddick1891]2 Q.B. 413; Ruddiman . Smith 1889)60L.T. 708.27We refer ere o casesof purevicariousiability only, .e., nottocases nwhich heprinciplef ostensibleuthoritypplies. In suchcases, .e., casesof non-purevicariousiability, he benefit o the master s irrelevant:Lloydv. Grace,Smitth Co. [1912]A.C. 716; UnitedAfricaCo. Ltd. v.Saka Owoade 1955]A.C. 130.28 Hudsonv. RidgeManufacturingo. Ltd. [1957]2 All E.R. 229.29 Dyerv. Munday1895]1 Q.B. 742; Warren . HenlysLtd. [1948]2 AllE.R.935; Powerv. Central .M.T. Co.,1949S.C. 876; Deaton'sPty.Ltd.v. Flew(1949)79 C.L.R. 370.

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THE MODERN LAW REVIEWof the case, he was not negligent;but theremay nevertheless emixed iability n thepartoftheemployer, incethenon-negligentact which caused the injuryconstituted breach of the absolutedutyof the employer owards the injuredworkman. This differsfromthe case of vicariousliability; therecan, of course,be novicarious iabilityunlessthe actingworkman s himself ersonallyliable.80

THE IMPORTANCE OF THE CONCEPT OF MIXED LIABILITYThe conceptofmixed iabilityprovides rationaleforcertain asesof iability orwhichuntilnowno satisfactoryxplanationhas beenforthcoming. t serves to clarify hedoctrine f vicarious iabilitybyremoving ertainborder-lineases whichforwantofan alterna-tiveexplanationwereforcednto tsorbit nd thus ead to confusionabout its theoretical asis. It establishes n independent ype ofliabilitywhich s not subject to the limitations pplicable to theothertypesof liability. Its importancemay be illustratedby anumber fexamples:

I. No master an be held iable on thebasis ofvicarious iabilityunless there s personal iability n thepartofthe servant. Never-theless, n such a situation, he mastermay be held liable on theprinciple f mixedliability if,e.g., the conduct of the servanthas breached duty mposedon themaster. The exampleoffraud,used to illuminate henature oftheconceptofvicarious iability,81turnsout to be in factnot a case ofvicarious iability t all, butbelongs o thefield f mixed iability.II. No master an be held iableunlesstheservant cts withthemotive of advancing his master's business.82 Nevertheless, hemastermay be held liable on the principleof mixed liabilityalthoughthe servantacted for his own ends and not on behalfofhismaster.

III. The liability ftheemployer ortheacts ofan independentcontractor s a case ofmixed and not ofvicarious iability.38Theemployer s liable because the acts of the independent ontractorconstitute breachof the employer'sduty.84 If the employer sunder n absoluteor strict utyhe is liable evenif theindependent30 i.e., liability n the substantivesense. Procedural barriers,such as that inBroom v. Morgan [1953] 1 Q.B. 597, are ignored n this context.31 GlanvilleWilliams, VicariousLiability, op. cit. in note 3 above, pp. 530-541.32 We do not refer o cases in whichtheplaintiffelieson theostensible uthorityof the servant. See note 27 above.33 Daniel v. Rickett 1938] 2 K.B. 322.34 S. Chapman, Liability for the Negligence of Independent Contractors(1934) 50 L.Q.R. 71; The Pass of Ballater [1942] P. 112; Spicer v. Smee[1946] 1 All E.R. 489; Walsh v. Hoist d Co. Ltd. [1958] 3 All E.R. 33.

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MIXED AND VICARIOUS LIABILITYcontractor to whom the work was entrustedwas an expert.35Where,however, hedutyof theemployers theusual dutyofcareas defined y the law ofnegligence 6there s groundfortheview(at leastin thefield f theoccupier's iability) hatwhere pecialisedknowledge s required the duty is dischargedby entrustingtsperformanceo a suitable ndependent ontractor.37IV. The distinction etweenvicariousand mixed liability s ofparticularmportancewithregardto theliability fhospitals. Theliabilityof a hospital for the negligentacts of its doctors andmedical staffmay be vicariousor mixed.38 In orderto establishvicarious iability t mustbe provedthat thedoctor was a servantof thehospitaland was negligent owardsthe injured party n thecourseofhis employment. n orderto establishmixed iability, ntheotherhand, t is sufficiento provea breachofa duty89to treatthepatient properly,whethert be a contractual r a common awduty. In thatevent t is irrelevantwhether he breachwas effectedby a servantor an outsider.V. The duty of the bailee 40 varies with the nature of thecontractof bailment. The duty of the ordinarybailee under acontractforthe custodyof a chattelis unlikethat of a commoncarrier. The formerhas merelya duty to exercise due care inlookingafter he chattel,whereasthe dutyof the latter s a strictdutyof insurance gainstthe oss ofordamage to thegoods.4An ordinary ontract fcustody mposeson the bailee a dutytoexercise reasonable care. Let us suppose that the chattel wasdamaged by the act of the bailee's servant. The bailee would beliable by therulesof mixed iability ifthewrongfulct of theservant an be imputed o him. The rule n such cases is thatonlytheacts of the servantwithparticular esponsibilityorthecare ofthe article deposited are imputed to the master.42 Thus, theharmfulct ofa servantwhodoes not have particular esponsibilityforthe article bailed is not imputedto the master,while,on theotherhand, all the acts of the servants o responsible re imputedto him,even acts outsidethe scope of theiremployment.43Hencethe importanceof the distinctionbetween mixed and vicariousliability.35 See the cases referred o in note 45 below. See also Mutreadyv. Bell [1953]3 W.L.R. 100; Black v. Woolf [1898] 2 Q.B. 426; Balfour v. Barty-King[1957] 1 Q.B. 498.36 According o the test of The Pass of Ballater [1942] P. 112.37 See the cases cited in notes 11 and 16 above.38 Salmond,op. cit., p. 647.39 Cassidyv. Ministry fHealth [1951] 2 K.B. 343.40 Paton, op. cit.41 Ibid. p. 237.42 Fleming,The Law of Torts (Australia) (2nd ed., 1961), p. 837.43 The Coupe Companyv. Maddick [1891] 2 Q.B. 413; CentralMotors Glasgow)Ltd. v. CessnockGarage and MotorCo., 1925 S.C. 796; Adams (Durham) Ltd.v. TrustHouses Ltd. [1960] 1 Lloyd's Rep. 380.

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THE MODERN LAW REVIEWTHE TREND AWAY FROM MIXED LIABILITY TOWARDS VICARIOUSLIABILITY

The English common law recognisedmixed liability before itrecognised icarious iability.4 Withthewaningofmixed iabilityand thetrend wayfrom bsolute iability owards iability orfault,theconceptofvicarious iability egan to take rootso that iabilitywithoutfault on the part of the master could be retained incircumstances here hiswas thought esirable.Even todaynew forms fvicarious iability re beingdeveloped,while some instances of mixed liabilityare being eliminated, nparticular he liabilityforthe conductof independent ontractors.In spiteof theacceptedviewthatthe modern endencys to extendthe master's iabilityforthe aacts f an independent ontractor,45it is submitted hat, in fact,since the beginning f the twentiethcentury,the courts have tended to limit the employer'smixedliabilityto cases of absolute and strict iability,46nd to exempthimfromiabilitywhenever he claimis founded n negligence ndhe entrusted he performancef the duty to a skilledexpertwhowas an independentontractor.47On the otherhand, a typeof new vicarious iability s that ofthe principal forthe tortsof his agent. The common awat first only recognised the master and servant relationship.Principal and agent weretermsthatbelongedto the law-merchant.48On its mergerwith the common law, the termagent came intogeneraluse in the common aw. Initiallytheconceptwas limited o thelaw ofcontract. In the courseoftime,however, it spread throughcontractualfraud into the law ofmisrepresentation,nd thenceto thewholefieldof torts. At firstthe term agent served s a synonymor ervant, rwas used inestablishingheliability f one person i.e., the principal ) whoordered nother, he agent, to do a tortious ct on his behalf.In thefield fmixed iability he term ppliesmainly o the iabilityof the ownerofa vehiclewho,while n control fit when t causedan accident,did not driveit.49 In these circumstances e has a44 The judgmentsof Lord Holt, whichlaid the foundation f vicariousliability,were in fact cases of mixed liability: Boson v. Sanford 1691) 2 Salk. 440 (acase of contractualduty); Tubervillev. Stampe (1698) Skinner 681 (duty topreventfire); Middletonv. Fowler (1688) 1 Salk. 282 (contractualduty); Hernv. Nichols (1709) 1 Salk. 289 (fraudarisingfrom ontract).45 Honeywillc Stein Ltd. v. Larkin BrothersLtd. [1934] 1 K.B. 191 at p. 197;Salmond, op. cit., p. 686, Winfield,Tort (7th ed., 1963), p. 732; Friedmann,Law in a Changing' ociety 1959),p. 136.46 The turning-pointame in our view only in the twentieth enturywith thecases of Rainham ChemicalWorksv. BelvedereFish Guano Co. [1921] 2 A.C.465; Phillips v. Britannia Hygienic LaundryCo. [1923] 1 K.B. 539.47 This tendency s felt today in the fieldof occupiers' iability. See the casesreferredo in note22 above.48 Holdsworth,HistoryofEnglish Law, Vol. V, p. 48.49 Wheatelyv. Patrick (1837) 2 M. & W. .650; Samson v. Aitchison 1912] A.C.844; Pratt v. Patrick [1924] 1 K.B. 488; Brooke v. Bool [1928] 2 K.B. 678at p. 584.

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MIXED AND VICARIOUS LIABILITYduty of a care towards the injured pedestrianand the driver'snegligent riving onstitutes breach of thisduty. The driver sreferred o as an agent, and the owner's liability is mixed.What, however, s the law when the owner of the vehicle is notpresent t the time ofthe accident If we wishto hold theownerof the vehicleliable, it becomesnecessaryto extend the scope ofthatdutybeyondthenormaldutyto take care. Thus in Ormrod .CrosvilleMotorServices50DenningL.J. (as he thenwas) statedasfollows: The law puts an especial dutyon the ownerofa vehiclewho allows it to go on the road in charge of someone else(emphasis added). This approach,which mposesa heavy respon-sibilityon the owner of a vehicle, is consistentwith the generalattitude fthecommonaw towardroadusers.5l It has beenstatedin a number of cases 52 that this is in fact a formof vicariousliability.8 The relationshipof principal and agent issufficiento imposevicarious iabilityon him. However,whilethenecessityto prove the personal duty has been removed,a newrequirement as been added, i.e., that the wrongful cts of theagent wereperformedn behalfof the principal.AHARONBARAE.*

o5 [1953] 2 All E.R. 758 at p. 755.51 Walshv. Hoist& Co. Ltd. [1958]8 All E.R. 88 at p. 88.52 Parker v. Miller (1926) 42 T.L.R. 408; Hewitt v. Bonvin [1940] 1 K.B. 188.53 But see Street,Law ofTorts (3rded., 1968),p. 486.* M.JUR., PH.D. (Jerusalem); of the Faculty of Law, The Hebrew University fJerusalem.

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Mixed and Vicarious Liability