FRONEMAN J
from which it follows that the policemen must have been considered to be personally
liable for their omissions (for otherwise there would have been no scope for vicarious
liability).‖20 (Footnotes omitted.)
And further:
―In view of [the] express finding of vicarious liability, it must be taken that the
policemen were considered to be personally liable for their omissions, thus rendering
the state vicariously liable, albeit that it might equally have held the state to be
directly liable for its own omission.‖ 21
[102] If one accepts the correctness of the traditional assumption of a clear distinction
between vicarious and personal, or direct, liability, it is difficult to fault this logic.
[103] There is another difficulty in delineating direct and vicarious liability where the
existence of public duties and their breach are at stake. It is the notion of a secondary
breach of a legal duty by the employer to establish vicarious liability.22
[104] The existence of a legal duty not to cause harm negligently to another and its
breach are important aspects of the enquiry into the wrongfulness of the conduct of the
state official for whose conduct the state is sought to be held liable. It is a question
that does not fit comfortably into the second, objective, leg of the vicarious liability
test, namely whether there is a sufficiently close link between the employee‘s acts for
his own interests and the purposes and business of the employer.23 Conceptually, the
20
Id at para 32.
21
Id at para 35.
22
Id at para 47.
23
K above n 1 at paras 32 and 49.
41
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