I think there is a real distinction there as to how it happened and intent. But also, I think the person responsible for the agent should be held accountable either way.
Somewhat like the distinction between murder and negligent homicide. Or maybe more like, if someone who has a dog lets it run loose in the neighborhood and it attacks a person. They might not have been there commanding their dog to attack at the time, but they should still be held liable for the attack because they let their dog loose, unsupervised and they should at least be held accountable for not maintaining control of their dog when it was in public.