References: (1999) 174 DLR(4th) 45, [1999] 8 WWR 197, 43 CCEL (2d) 1, 62 BCLR (3d) 173
Links: Canlii
Coram: McLachlin J
(Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.’ The court criticised the decision in Trotman, saying: ‘the opinion’s reasoning depends on the level of generality with which the sexual act is described. Instead of describing the act in terms of the employee’s duties of supervising and caring for vulnerable students during a study trip abroad, the Court of Appeal cast it in terms unrelated to those duties. Important legal decisions should not turn on such semantics. As Atiyah points out (Vicarious Liability in the Law of Torts, p 263): ‘conduct can be correctly described at varying levels of generality, and no one description of the ‘act’ on which the servant was engaged is necessarily more correct than any other’.’
This case cites:
- Criticised – Simon Trotman (By her Mother and Next Friend Irene Trotman) -v- North Yorkshire County Council CA (Gazette 26-Aug-98, Bailii, [1998] EWCA Civ 1208, [1999] LGR 584)
The court considered the liability of the respondent for sexual assaults committed by an employee teacher when taking students on school trips.
Held: The Local Authority was not vicariously liable for sexual assault committed by employee . .
This case is cited by:
- Approved – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . . - Cited – Bernard -v- The Attorney General of Jamaica PC (PC, Bailii, [2004] UKPC 47, PC, No. 30 of 2003, [2005] IRLR 398)
PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . . - Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . . - Cited – Gravil -v- Carroll and Another CA (Bailii, [2008] EWCA Civ 689, Times 22-Jul-08, [2008] ICR 1222, [2008] IRLR 829)
The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed a finding that they were not vicariously liable. The defendant player’s . . - Cited – Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA (Bailii, [2010] EWCA Civ 256, Times, [2010] PTSR 1618, [2010] 1 WLR 1441)
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . . - Cited – Weddall -v- Barchester Healthcare Ltd CA (Bailii, [2012] EWCA Civ 25)
Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
Held: Appeals were dismissed and allowed according to their facts.
In one case, one employee . . - Cited – The Catholic Child Welfare Society and Others -v- Various Claimants & The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . . - Cited – Graham -v- Commercial Bodyworks Ltd CA (Bailii, [2015] EWCA Civ 47, [2015] WLR(D) 50, WLRD)
The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .