ABSTRACT
It may be, then, that the English law of tort is more concerned with acts rather than activities as a judge once pointed out.264 Nevertheless, the notion of an act can be extended to cover the acts of others if there is in existence an obligation to procure some minimal results. In these situations one can talk of a liability on one person for acts of another. But the basis of this liability is not one that traditionally functions within the principle of vicarious liability since this principle is in theory a discrete set of rules applying only in situations of employment (master and servant). It is a tort rule mitigating the rigours of an individualist obligation structure. However, the moment that one (or more) of these rules spills over into another area of the law of obligations the two separate notions of non-delegable duty and vicarious liability can become confused. Vicarious liability can appear to be extending beyond the boundary of the employment (master and servant) contract. This can sometimes be dangerous since it might allow a contractor to escape his obligation by arguing that a third party was acting outside the course of his employment. Thus, it has been held, as we have seen, that the employer of a bus conductor was not liable for the conductor’s assault upon a passenger who was travelling on a bus under a contract with the employer.265 Equally, in Photo Production, although the argument that the arsonist employee was acting outside the course of his employment was rejected by the House of Lords, the House still seemed to assume that the vicarious liability course of employment rule was relevant to the contractual situations.266 One advantage, then, of a law of obligations, as opposed to a law of contract and tort, is that it might provide a context for a re-alignment of the structures dealing with three-party situations. But this should, probably, only be done alongside a rethinking of the structures dealing with liability for things (see Chapter 5 § 5).
