International Journal of Pure and Applied Mathematics

Volume 120 No. 5 2018, 1849-1864

ISSN: 1314-3395 (on-line version)
url: http://www.acadpubl.eu/hub/
Special Issue
http://www.acadpubl.eu/hub/

A COMPARATIVE STUDY ON VICARIOUS LIABILITY IN TORTS

AND ADMINISTRATIVE LAW IN INDIA
1
D.KAVITHA
1
B.A.L.L.B(Hons),Department Of Law, Saveetha School Of Law , Saveetha Institute Of Medical And
Technical Sciences, Saveetha University, Chennai-77, Tamilnadu,India.
2
R.DHIVYA
2
Assistant Professor ,Saveetha School Of Law ,Saveetha University, Saveetha Institute Of Medical
And Technical Sciences, ,Chennai-77, Tamilnadu,India.
1
[email protected], [email protected]

ABSTRACT:
This paper deals with vicarious Liability which means Master and Servant
relationship. Vicarious Liability refers to a situation where someone is held responsible for
the actions or omissions of another person. The term administration is refer for state or
government would liable for the torts committed by its servants is a complicated problem
especially in developing countries with ever widening state activities. The liability of the
government in tort is governed by the principles of public law inherited from British common
law and the provisions of the constitution. Vicarious Liability deals with cases where one
person is liable for the acts of others. So in a case of vicarious Liability both the person is
liable for the acts of others. So in a case of vicarious Liability both the person at whose
command the act is done as well as the person who does the act are liable. This, employers
are vicariously liable for the torts of their employees that are committed during the course of
employment. The Position of state Liability as stated in article 300 of the constitution is as
under: Clause (1)of article 300 of the constitution provides that the government of India may
sue or be sued by the name of the union of India and the government of the state. East India
company in order to understand the Liability parameters of the administration today because
the liability of the administration today is in direct succession to that of the east India

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company. East India established for commercial corporation but gradually acquired
sovereignty. Political powers that distinction made between Sovereign and non-sovereign
functions.
Method: This research paper has been in Analytical and descriptive method to resolved into
elements and constituent parts not only that but also the structure of the issues has been
classified.
Result: This research paper has divided into 2 elements where the establishment of the
vicarious liability and played a vital role been discussed.
conclusion : The government is liable for the servant during exercise sovereign function.
The act of the statutory expert in such a case is a act improved the situation and for the State.
Keywords: Vicarious Liability, master and servant, administration, course of employment,
East India company, sovereign, non-sovereign.

INTRODUCTION :
The vicarious Liability in administrative law deals with sovereign and non sovereign
government which means master and servant relationship. The tortious Liability of the state is
tortious act of its government. Winfield explains the doctrine of vicarious Liability: The
expression ‗vicarious Liability‘ signifies the Liability which A may incur to c for the damage
caused to c by the negligence or other tort of B. It is not necessary that A shall have
participated in any way in the commission of the tort nor that a duty owed by law by A to c
shall have been broken.(Takwani & Thakker 2008)
Thus, the master may be held liable for the Torts committed by his servant in the course of
employment.
The Doctrine of vicarious Liability is based on two maxims:
1. Respondeat superior ( let the principal be liable)
2. Qui facit per alium facit per se ( he who does an act through another does it himself)
Liability in tort article 300(1) provides that the government of India may be sued in relation
to its case affairs like dominion of India. Before the constitution came into force suit would
lie against dominion of India question arises and parliament didn‘t took any effective for
making law. When the commencement of constitution state legislature don‘t enact any law.
Course of employment servant committed any tortious act secretary of the state council is
liable when parliament didn‘t enact the law. East India company and after government of
India act 1858, which transfer the government of India to majesty court with rights and
Liability before the present constitution came into force.

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Aim of the study:

To study about vicarious liability of the state in exercising its sovereign powers
Objectives :
1. To study about impact of vicarious Liability in India.
2. To study about the factors indicating the vicarious Liability in India.
3. To study about the constitutional provision relating to vicarious Liability in India.
4. To evaluate the scope and extent of the defence of act of state.
RESEARCH QUESTIONS:
Whether the tort act 1992 plays vital role implementing vicarious Liability in India or not ?

MATERIALS AND METHODS :

This study is collected from secondary sources like books and publication from various
websites in study of vicarious Liability in India.
History of vicarious Liability
The vicarious Liability origin from England. During the kings rule of an ancient period legal
maxim Rex Non Potest Peccare ( The king can do no wrong). (Wade & Forsyth 2014)During
the course of employment the tort committed by king servant and king is not liable under the
vicarious Liability. This remedy will available only in Torts and not in contract to recovery
the property. According to Manu, the king duty to uphold law and himself as subject to law
like ordinary citizen. In England absolute rights and Liabilities lies in crown hands.(Magnus
et al. 2004)Tortfeasor could not be sued in the name of crown course of employment.
Tobin vs R : the court observed, If the crown were liable in tort, the king can do no wrong
would have seemed meaningless. But with the increase of governmental functions, the
immunity afforded to the crown in tortious Liability proved to be incompatible with the
demands of justice. In various decisions the kings court criticized this exemption were
against justice, equity, and good conscience. The crown proceeding act 1947 by abolishing
the maxim, king can do no wrong act passed in British parliament. The course of employment
principle of respondeat superior and king can also be sued for his servant tortious
act.Through this everyone are equal before law, no one is superior and inferior to another.
POSITION IN INDIA :
In India sovereignty is assumed in crown during 1858 and took over the administrative hands
of company. Th act declared to statute is secretary of India to be corporate body for the
purpose of using and being sued. Section 32 of 1915 government(Feldman 2015) of India act
declared corporate assumptions:

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1. The name Secretary of State council may sue and be sued as a body corporate.
2. The East India company and government of India company act 1858 of the act did not
passed , Secretary of State in council shall have remedies for all person.
3. This provision was again mentioned in section 176(i) of the Government of India Act,
1935.
The organization may sue or be sued by the name of the alliance of India and the
commonplace governments may sue or be sued by the name of region and without partiality
to the ensuing arrangement of this section, might be, liable to any arrangements which might
be made by the act of the league or common lawmaking body authorized by prudence of
forces gave on that assembly by this demonstration, sue or be sued, in connection to their
particular issues in the like case as the secretary of State for India in gathering may have sued
or been sued in this demonstration has not been passed.
The kingdom of sovereign power of the state and such state is not liable for omissions,
the state Liability used the cat in broader defense. The state Liability first interpretation
during east India company was made in john Stuart cases 1775.(Cornford 2016) It was held
that first time the governor in general has no immunity from the court jurisdiction cases
involving dismissal of government servant. In moodaly privy council doctrine of sovereign
immunity is not applicable to India. British crown later the assumption of sovereign powers
were enacted the administration of country during government of India act 1858.
The vicarious Liability in administrative law as sovereign and non- sovereign powers they
are distinct by the court in exercise of non sovereign power in act done with conduct of
undertakings might carried by individuals without having the power. (Gageler 2017)Non
sovereign function some assumptions will arise. The East India company had a two-fold
character are
(a) As a sovereign power and
(b) As a trading company.
The responsibility of company could only extend in respect of its commercial dealings with
the act that done in exercise of delegated sovereign power. In the present case, the harm was
done to the offended party in the activity of non-sovereign capacity, i.e. the upkeep of
Dockyard which should be possible by any private individual with no appointment of
sovereign power and consequently the Government was subject for the torts of the workers.
The Secretary of State was not obligated for anything done in the activity of sovereign
powers.

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Nobin Chandra Dey v. Secretary of State for India

This doctrine of immunity , for acts done in the activity of sovereign capacities, was
connected by the Calcutta High Court in Nobin Chander Dey v. Secretary of State. The
plaintiff for this situation battled that the Government had made an agreement with him for
the issue of a permit for the sale of ganja and had conferred break of the agreement. The High
Court held that upon the confirmation, no break of agreement had been demonstrated. Also
regardless of whether there was an agreement, the demonstration had been done in exercise
of sovereign power and was subsequently not noteworthy.

Secretary of State v. Hari Bhanji

In this case the Madras High Court held that State immunity as limited to act of State. In the
P and O Case, the decision did not go beyond act of State, while giving outlines of
circumstances where the immunity as accessible. It was characterized that Acts of State, are
acts done in the activity of sovereign power, where the act grumbled of is professedly done
under the endorse of municipal law, and in exercise of forces gave by law. The insignificant
actuality that it is finished by the sovereign powers and isn't an act which should be possible
by a private individual does not expel the jurisdiction of the civil court. The Madras judgment
in Hari Bhanji holds that the Government may not be at risk for acts associated with public
safety , even though the fact that they are not act of State.

Rose vs Plenty: (1976), the facts were milkman advised by his managers not to give children
a chance to encourage him while he was doing his rounds. In any case, he allowed a child to
help and the kid was harmed while riding on his milk float, because of the careless driving of
milkman. The court of appeal found the employer vicariously at liable . The employee as
doing his activity, within in the scope of employment let him know not to. All things
considered, in light of the fact that the work he was performing was for the advantage of the
employer‘s business.

Mathis v Pollock [2003] the Court of Appeal. In this case, the Claimant was stabbed by a
doorman that was employed by the Defendant to work in the Defendant's club. The
Defendant expected the doorman to do his obligations in a 'forceful way'.(Cornford 2016)
Where, like in this case, a worker is relied upon to utilize brutality as a feature of completing
their obligations, the odds of a court finding a specific act of violence of be within the scope
of employment is substantially higher.

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LAISSEZ-FAIRE JUDICIAL THINKING AND THE EXCLUSION OF SOVEREIGN

FUNCTION.
In the old colonial era when the Government was concerned more with policing capacity than
with welfare exercises, the majority of the capacities practiced by the Government of India
were considered as sovereign capacities. Likewise safeguard elements of the State, (R. J. F.
B. & B. 1923)upkeep of peace, administration of equity through courts and matters incidental
thereto and furthermore inconvenience and gathering of duties were translated as sovereign
capacities.

CONSTITUTIONAL PERSPECTIVE

This provision has been incorporated in Article 300 (i) of the Constitution of India:The
government of India may sue or be sued by the name of the union of India and the
government of the state may sue or be sued by the name of the state, (Pandey & Srivastava
2014)and may subject to any provisions which may be made by act of parliament or of the
legislature of such state enacted by virtue of powers conferred by this Constitution, sue or be
sued in relation to their respective affairs in the like cases as the domination of India and the
corresponding Indian States might have sued or been sued if the constitution had not been
enacted.(Kulshreshtha & Gandhi 2005)

Neither the legislature of the states nor the parliament has made any law as contemplated by
clause (1) of Article 300 of the Constitution of India. The present position is that the state
would be liable for damages, if such suit could be filed against the corresponding province

RESULT OF THE STUDY : The kingdom of sovereign power of the state and such state
is not liable for omissions, the state Liability used the crown in broader defense. The ancient
period crown played vital role in vicarious liability.

Comparative study of tortious Liability and administrative Liability in various country-

India and U.k

Law of tort is a part of English civil law. A tort is a act that harms somebody somehow, and
for which the harmed individual may sue the wrongdoer for harms. A careless or purposeful
common wrong isn't arising out of an agreement or statute. (Anon 1982)These include
"intentional torts, for example, battery or defamation , and torts for carelessness. At the point

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when there is an obligation of care and a breach of that obligation mind causes a harm that
makes the tort of carelessness.

The definition of tortious liability is as:

―Tortious liability arises from the breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages.‖

Law prior to the Crown proceedings Act :

There were two ancient but fundamental principles before the Crown Proceedings Act, 1947
representing the law identifying with the risk of the (Massey 2008)Crown and its workers: (I)
The rule of substantive law that the King can't be blamed under any circumstance, and (ii)
the decide of procedural law that the King couldn't be sued in his own Courts. The survival of
these tenets into the twentieth century implied that till first January, 1948 the Crown could be
sued neither in regard of wrongs that had been explicitly approved nor in regard of wrongs
submitted by Crown's servant course of employment .

The King can do no wrong : The maxim that the "The king can do no wrong‖ is an ancient
and cardinal principle , however it doesn't imply that the King is exempt from the laws that
apply to everyone else and that all that he does, is fundamentally just and legal. It has two
meaning as per the according observer Firstly, that whatever is exceptionable in the
conduct(Giliker 2008) of public affairs is not imputed to the King, nor is he answerable for it
personally to his people for this doctrine would totally destroy that Constitutional
independence of the Crown, which is necessary for the balance of Power in free and active
and therefore compounded Constitution: and secondly, it means that the prerogative of the
Crown extends not to do any injury; it is created for the benefit of the people and therefore
cannot be extended to their prejudice. Maitland then again clarified the maxim in this way: "
English law does not provide any means(Voyiakis 2017) whereby the King can be punished
or compelled to make redress‖. The maxim simply implied that the King was not privileged
to do wrong. In the event that his act were illegal, they were injuria. In this way, what the
King does by and by, the law presumes (A. L. G. & A. 1924)won't be a wrong, what he does
by his summon to his servant can't not be right in him for if the order be unlawful, it is in law
no charge and the servant is by and by in charge of the unlawful act. King couldn't be sued in

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his own Courts The decide that the King couldn't be sued in his own Courts depended on the
pyramid remnant that a medieval Lord couldn't be held obligated in his own particular Court.
The social states of England were in charge of the non-responsibility of the Crown (Van
Hoecke 2011). The medieval rulers were Supreme. The law was of a very antiquated
compose. The Lords practiced their forces and even secured their men who had submitted the
offenses. As indicated by Street, "Similarly as no Lord could be sued in the Court which he
held to attempt the instances of his inhabitants, so the King, at the zenith of the pyramid and
subject to the jurisdiction of no other Court, was not suable". A judgment of the King's Court
declared (Harlow 2002)"our Lord the King can't be summoned or get an order from
anybody.‖ Subsequently, under civil Law no human organization could implement the law
against the King. He could be an plaintiff party but he couldn't be made a defendant . The
oblivious injustice form that the Crown couldn't be sued for the wrongs of his servant , was to
some degree looked to be lightened by the Courts by making a legitimate fiction of selected
respondent, in which, the lawful procedure was issued exclusively against the individual
servant , however his guard was practically speaking led by the Crown, and if harms were
granted they were paid out of open assets. Government offices did their best to be useful
influencing this training to work easily, and if there was any uncertainty as to which worker
to sue, they would supply the name of a filed case. This practice was otherwise called fiction
respondent, However the report was Pigeon holed as it was contradicted by some
administration offices. Donoughmore Committee again suggested a case for enactment,
however the Administration of Justice (Miscellaneous Provisions) Act, 1933 just improved
the Crown's situation as a defendant and it didn't make the Crown subject in tort.

Liability for Breach of Statutory Duty : An action for a breach of statutory obligation is not
the same as an activity alleging careless exercise of statutory powers. The general rule is that
a breach of statutory obligation provides for a man harmed in this way a privilege of activity
for harms if that is given by the statute breach actionable. Occasionally , a statute expressly
states whether a breach will be actionable.Section 2(2) of the Crown Proceedings Act forces
two limitations on the obligation of the Crown. They are (a) the Crown is bound by a
statutory obligation just if the Act being referred to so gives, and (b) the Crown is subject just
where statutory obligation is binding upon people other than the Crown and its officers. The
Crown isn't accordingly, obligated where the obligation ties just itself. Street is very critical o
f the second provision when he says.that there is no justification for last requirement.

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Can civil liability arise as a consequence of the violation of constitutional right?

Though the fact state Liability risk was incorporated way back during British rule, the
fundamental concern was that whether a common obligation can emerge as a result of the
infringement of protected right. In this way, the main case (Cane n.d.)which managed this
issue was Rudul shah v. State of Bihar, In this case, the petitioner Rudul Shah suffered an
unlawful detention for around 14 years. It was for this situation that the court held that it
would be lip-service as to assurance of central rights if the advocate isn't (Gifford
2010)granted the ideal compensation or the gross infringement of Right to life and freedom.
After the previously mentioned case the idea of protected tort was featured in various cases
one such being Bhim Singh v. State of Jammu and Kashmir, For this situation, the court
held that if a person complains that his/her lawful right has been attacked the court has ward
to give the bothered party financial compensation.

In Nilabati behera v. State of Orissa, the court gave an essential suggestion that sovereign
immunity from tortious acts of state authorities is unique in different to state's liability for
contravention of the fundamental right. Consequently, the protection of sovereign immunity
finds no place in the claim for constitutional remedies under Article 32 and 226 opposite the
pay for compensation of established rights.

State of Rajasthan v. Vidyawati :

The respondents filed a suit for the harms made by a employee of a State and the case
addressed whether the State was question for the(Voermans & Stremler 2017) tortious act of
its servant – The Court held that the liable of the State in regard of the tortious act by its
worker inside the extent of his business and working functioning was like that of some other
employer . It was held for this situation that the State ought to be as much obligated for tort in
regard of tortious acts submitted by its servant in course of employment and working thusly,
as some other employer.The facts of this case shortly stated . All things considered, the claim
for harms was made by the dependants of a man who passed on in a misfortune caused by the
carelessness of the driver of a jeep kept up by the Government for official utilization of the
Collector of Udaipur while it was being brought once again from the workshop after repairs.
The Rajasthan High Court took the view-that the State was liable , for the State is in no better
position in so far as it supplies and keeps drivers for its Civil Service. In the said case the
Hon'ble Supreme Court has held as under:

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― Act done in the course of employment but not in connection with sovereign powers of the
State, State like any other employer is vicariously liable.‖ In the aforementioned case, the
Hon'ble Apex Court while approving the qualification made in Steam Navigation Co's. case
between the sovereign and non-sovereign Function observed hat the immunity of crown in
the United Kingdom depended on the old feudalistic thoughts of Justice, specifically, that the
King was incapable of doing wrong.The said common law immunity never worked in India.

Kasturi Lal v. State of U.P.:

The ruling for this situation was given holding the act, which gave rise to the present claim
for harms, has been submitted by the employee of the respondent throughout its employment
. Likewise, that employment had a place with a class of sovereign power(Giliker n.d.). This
removed any obligation with respect to the state. For this situation, the plaintiff had been
arrested by the police officers on a doubt of having stolen property. Upon investigation , an
large quantity of gold was found and was seized under the provisions of the Code of Criminal
Procedure. Eventually, he was discharged, yet the gold was not returned, as the Head
Constable accountable for the maalkhana, where the said gold had been put away, had fled
with the gold. The plaintiff immediately brought a suit against the State of UP for the arrival
of the gold or on the other hand, for harms for the misfortune caused to him. It was found by
the courts underneath, that the concerned cops had neglected to take the essential care of the
gold seized from the respondents , as gave by the UP Police Regulations. The trial court
announced the suit, yet the pronouncement was switched on claim by the High Court. At the
point when the issue was taken to the Supreme Court, the court found, on a valuation for the
evidence that the cops were careless in managing the plaintiff property and furthermore, that
they had not agreed to the arrangements of the UP Police Regulations.However , the Supreme
Court dismissed the plaintiff case, on the ground that "the act of carelessness was conferred
by the cops while managing the property of Ralia Ram, which they had seized in exercise of
their statutory powers . The ability to capture a man, (Wambaugh & Baty 1916)to seek him
and to seize property found with him, are powers conferred on the specified officers by
statute and they are powers which can be appropriately sorted as sovereign forces.
Consequently the premise of the judgment in Kasturi Lal was two-fold – The act was done in
the indicated exercise of a statutory power. Also, the demonstration was done in the activity
of a sovereign Function.

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Satyawati Devi v. Union of India

The Delhi High Court held that the carrying of a hockey group in a military truck to the Air
Force Station to play a match isn't a sovereign function . For this situation an Air Force
vehicle was carrying hockey group of Indian Air Force Station to play a match. After the
match was finished, the driver would stop the vehicle when he caused the fatal accident by
his carelessness. It was argued that it was one of the function of the Union of India to keep
the armed force fit as a fiddle and tune and that hockey group was carrying by the vehicle for
the physical exercise of the Air Force work force and along these lines the Government was
not obligated. The Court dismissed this contention and held that the conveying of hockey
group to play a match could by no procedure of augmentation be named as exercise of
sovereign power and the Union of India was consequently at risk for harms caused to the
plaintiff.

Chairman, Railway Board v. Chandrima Das

In this case, the Supreme Court held that the functions of the State not only relate to the
defence of the country or the administration of justice, but they extend to many other spheres
e.g. education, commercial, social, economic, political etc. These activities cannot be said to
be related to sovereign power.

Saheli, A Women’s Resources v. Commissioner Of Police : Saheli v. Commissioner of

Police was another milestone in the evaluation of compensation jurisprudence in writ courts.
The masterpiece judgement in Vidyawati, which was freezed by asturi Lal was rightly quoted
in this case. The State was held liable for the death of nine year old child by Police assault
and beating. Delhi Administration was ordered to pay compensation of Rs. 75000/-. The
significance of this case is that firstly, the revival of Vidyawati ratio and secondly that the
Delhi Administration was allowed to recover money from those officers who are held
responsible for this incident.

Basava Kom Dyamgonde Patil v. State of Mysore :

Wherein Articles seized by the police were produced before a Magistrate, who guided the
Sub-Inspector to keep them in his sheltered care and to get them checked and esteemed by a
goldsmith. The articles were lost, while they were kept in the police watch room. In a

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procedure for the reclamation of the merchandise, it was held that when there was no at first
sight safeguard made out, that due care had been taken by officers of the State to protect the
property, the court can order the State to pay the estimation of the property to the proprietor.

RESULT OF THE STUDY: The comparative study of vicarious liability in India and
England , State in regard of the tortious act by its worker inside the extent of his business and
working functioning was like that of some other employer .

Conclusion
In all of the cases discussed previously, the substance looked to be made subject isn't the
legislature yet the State. So far as the legislature is concerned, it might well say that the
statutory specialist is neither responsible nor subordinate to it. Subsequently the legislature
can't be chatted with the results spilling out of a wrong request made by a statutory specialist.
To the extent the State is concerned, it can't advance any such request in as much as the
statute is established by it by Legislature. The appointment of the specialist is additionally
done either by the Statute itself or by such expert as might be approved by the Statute. The
act of the statutory expert in such a case is a act improved the situation and for the State.
Consequently the state is held liable. The government is liable for the servant during exercise
sovereign function. State's risk for the act of statutory specialists emerges just in situations
where the statutory expert acts outside his legitimate specialist while implying to act
according to the lawful specialist presented upon him and the act ,which causes or results in
harm to a man, isn't inside the ambit of the statutory assurance, assuming any, contained in
such establishments. The Government of India may sue or be sued by the name of the Union
of India and the Government of a State may sue or be sued by the name of the State and may,
subject to any arrangements which might be made by Act of Parliament or of the Legislature
of such State authorized by uprightness of forces gave by this Constitution, sue or be sued in
connection to their separate undertakings in the like cases as the Dominion of India and the
comparing Provinces or the relating Indian States may have sued or been sued if this
Constitution had not been established." Consequently hypothesis is proved.

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Suggestion:
1. The modern welfare State no more stays as a Passive observer however eagerly
attempts social and monetary administration functions.
2. There is a need to sanction a law on State liability keeping in see the current legal
patterns and human rights jurisprudence.
3. sovereign immunity inapplicable to a procedure under public law. It is presented that
the legal needs to take realistic perspective of the doctrine and dispose of it out and
out from the Indian legal framework.
4. From sovereign immunity to the improvement of an full fledged arrangement of State
duty is a long and unending journey frequently including the cooperation of numerous
different and clashing interests.

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Giliker, P., Acting in the course of one‘s employment/functions/assigned tasks: determining

the scope of vicarious liability. In Vicarious Liability in Tort. pp. 145–195.

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Giliker, P., 2008. Rough Justice in an Unjust World. The Modern law review, 65(2), pp.269–
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