(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’.’
McLachlin J posed some non-inclusive factors which may be relevant in considering intentional torts: ‘(a) The opportunity that the enterprise afforded the employee to abuse his or her power;
(b) The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);
(c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
(d) The extent of power conferred on the employee in relation to the victim;
(e) The vulnerability of potential victims to wrongful exercise of the employee’s power.’
Judges:
McLachlin J
Citations:
(1999) 174 DLR (4th) 45, [1999] 8 WWR 197, 43 CCEL (2d) 1, 62 BCLR (3d) 173, [1999] 2 SCR 534
Links:
Jurisdiction:
Canada
Citing:
Criticised – ST v North Yorkshire County Council CA 14-Jul-1998
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 . .
Cited by:
Approved – Lister and Others v Hesley Hall Ltd HL 3-May-2001
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 7-Oct-2004
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 16-Mar-2005
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 18-Jun-2008
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 from 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 16-Mar-2010
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 24-Jan-2012
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 and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
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 5-Feb-2015
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 . .
Applied – Mohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
Cited – Mohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
Cited – Chell v Tarmac Cement and Lime Ltd CA 12-Jan-2022
Explosive Pellet Use Not Within Employee’s Role.
The claimant worked on a site operated by the respondent. One of the respondent’s employees exploded two pellet targets injuring the claimant’s hearing. He asserted vicarious liability in the respondent. There had been tensions between the claimant . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.
Vicarious Liability
Updated: 07 August 2022; Ref: scu.214669
