BAZLEY V CURRY 6th OCTOBER 1999 CANADIAN SUPREME COURT
FACTS:-
The Defendant, a non profit organisation operated two children’s homes for the treatment of emotionally troubled children. It practised total intervention in all aspects of the lives of the children that it cared for. It hired, C, a paedophile to work in one of its homes without knowledge of his background but after undertaking checks. He was dismissed after a complaint was made against him. He was then convicted of 19 counts of sexual abuse, two of which related to the Claimant. The Claimant sued the Defendant and one of the issues was whether the Defendant was vicariously liable for the actions of its employee. The trial judge and the Court of Appeal found that it was. The matter came before the Canadian Supreme Court.
HELD:-
McLachlin J delivering the judgement of the court considered the facts of the case. He then considered the “Salmond test” from Salmond and Heuston on the Law of Torts (19th ed. 1987) and the case of Canadian Pacific Railway Co. v Lockhart [1942] AC 591. An employee’s wrongful conduct was said to fall within the course and scope of his or her employment where it consisted of either (1) acts authorised by the employer or (2) unauthorised acts that were so connected with acts that the employer had authorised that they might rightly be regarded as modes - although improper modes of doing what had been authorised.
The question for the court was whether the wrong was so connected to an unauthorised act that it would be regarded as a mode of doing that act. In the case the Defendant had authorised the abuser to put the child to bed, and the abuser committed the sexual abuse whilst putting child to bed.
McLachlin J said that it was often difficult to distinguish between an unauthorised mode of performing an authorised act that attracted liability, and an entirely independent act that did not. It was possible to look at decided cases but such precedents were only helpful when they presented a suggestive uniformity on parallel facts.
Another approach was to establish a prima facie case and then shift the evidentiary burden onto the employer, so that the employer then had to show that the act for which it was not responsible. However it was unclear what the employer would then have to do to escape responsibility.
Increasingly courts confronted by issues of vicarious liability, were turning to policy for guidance.
This was a case where there was little helpful precedent to guide the court in determining whether the employee’s tortuous act should be viewed as an unauthorised mode of an authorised act, or as an independent act. McLachlin J considered three general categories of case:-
In relation to the first category, the employee could be said to be acting in furtherance of the employer’s aims and therefore had “ostensible” or “implied” authority. This worked well for negligence claims but not for those grounded in assault.
In relation to the second category, this extended to intended assaults such as the bartender’s assault on an obnoxious customer.
Neither the first nor second category could extend to the third category, the dishonest employee case. At the heart of these decisions was consideration of fairness and policy.
There was a common feature. In each case, it could be said that the employer’s enterprise had created the risk that produced the tortuous act.
The issue in this case had come before the Court of Appeal in England in Trotman v North Yorkshire County Council [1999] IRLR 98 where the court had not found vicarious liability against a school council for the sexual abuse of a teacher, committed against a mentally handicapped student. It was held that this was an independent act.
Lachlin J said that the Court of Appeal in Trotman had not confronted the underlying policy of vicarious liability. Their decision also rested on the questionable conclusion that sexual torts by caretakers against children were closer to an assault by a shop assistant than a bank employee’s conversion. The English Court of Appeal should have described the act in terms of the employee’s duties of supervising and caring for vulnerable students.
Lachlin J then turned to policy considerations and considered the various commentaries on the doctrine. The first concern was to provide a just and practical remedy to people who suffered wrongs perpetrated by an employee. The second major policy consideration was the deterrence of future harm. If the scourge of sexual predation was to be stamped out, or at least controlled, there should be powerful motivation acting upon those who controlled institutions engaged in the care, protection and nurturing of children.
Underlying the cases holding employers vicariously liable for the unauthorised acts of employees was the idea that the employers might justly be held liable where the act fell within the ambit of the risk that the employer’s enterprise created or exacerbated. In addition, the policy purposes underlying the imposition of vicarious liability on employers were served only where the wrong was so connected with the employment that it could be said that the employer had introduced the risk of the wrong.
The inquiry was directed not at foreseeability of risks from specific conduct, but at foreseeability of the broad risks incident to a whole enterprise. However mere opportunity to commit the tort did not suffice. The enterprise and employment must not only provide the locale or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk.
The court should be guided by the following principles:-
Applying these general considerations to sexual abuse by employees, vicarious liability would lie in these circumstances.
The next question was whether there should be an exemption for a non profit organisation. Lachlin J rejected that argument. The perspective of the innocent child had to be considered. The protection of a child should not be governed by the fact that the organisation charged with that protection was non profit making. Essentially children should not bear the cost of the harm that has been done to them so that others in society might benefit from the work of non-profit organisations. Loss should fall on the party that introduced the risk and had the better opportunity to control it.
FACTS:-
The Defendant, a non profit organisation operated two children’s homes for the treatment of emotionally troubled children. It practised total intervention in all aspects of the lives of the children that it cared for. It hired, C, a paedophile to work in one of its homes without knowledge of his background but after undertaking checks. He was dismissed after a complaint was made against him. He was then convicted of 19 counts of sexual abuse, two of which related to the Claimant. The Claimant sued the Defendant and one of the issues was whether the Defendant was vicariously liable for the actions of its employee. The trial judge and the Court of Appeal found that it was. The matter came before the Canadian Supreme Court.
HELD:-
McLachlin J delivering the judgement of the court considered the facts of the case. He then considered the “Salmond test” from Salmond and Heuston on the Law of Torts (19th ed. 1987) and the case of Canadian Pacific Railway Co. v Lockhart [1942] AC 591. An employee’s wrongful conduct was said to fall within the course and scope of his or her employment where it consisted of either (1) acts authorised by the employer or (2) unauthorised acts that were so connected with acts that the employer had authorised that they might rightly be regarded as modes - although improper modes of doing what had been authorised.
The question for the court was whether the wrong was so connected to an unauthorised act that it would be regarded as a mode of doing that act. In the case the Defendant had authorised the abuser to put the child to bed, and the abuser committed the sexual abuse whilst putting child to bed.
McLachlin J said that it was often difficult to distinguish between an unauthorised mode of performing an authorised act that attracted liability, and an entirely independent act that did not. It was possible to look at decided cases but such precedents were only helpful when they presented a suggestive uniformity on parallel facts.
Another approach was to establish a prima facie case and then shift the evidentiary burden onto the employer, so that the employer then had to show that the act for which it was not responsible. However it was unclear what the employer would then have to do to escape responsibility.
Increasingly courts confronted by issues of vicarious liability, were turning to policy for guidance.
This was a case where there was little helpful precedent to guide the court in determining whether the employee’s tortuous act should be viewed as an unauthorised mode of an authorised act, or as an independent act. McLachlin J considered three general categories of case:-
- Cases based on the rationale of furtherance of the employer’s aims
- Cases based on the employer’s creation of a situation of friction
- The dishonest employee cases
In relation to the first category, the employee could be said to be acting in furtherance of the employer’s aims and therefore had “ostensible” or “implied” authority. This worked well for negligence claims but not for those grounded in assault.
In relation to the second category, this extended to intended assaults such as the bartender’s assault on an obnoxious customer.
Neither the first nor second category could extend to the third category, the dishonest employee case. At the heart of these decisions was consideration of fairness and policy.
There was a common feature. In each case, it could be said that the employer’s enterprise had created the risk that produced the tortuous act.
The issue in this case had come before the Court of Appeal in England in Trotman v North Yorkshire County Council [1999] IRLR 98 where the court had not found vicarious liability against a school council for the sexual abuse of a teacher, committed against a mentally handicapped student. It was held that this was an independent act.
Lachlin J said that the Court of Appeal in Trotman had not confronted the underlying policy of vicarious liability. Their decision also rested on the questionable conclusion that sexual torts by caretakers against children were closer to an assault by a shop assistant than a bank employee’s conversion. The English Court of Appeal should have described the act in terms of the employee’s duties of supervising and caring for vulnerable students.
Lachlin J then turned to policy considerations and considered the various commentaries on the doctrine. The first concern was to provide a just and practical remedy to people who suffered wrongs perpetrated by an employee. The second major policy consideration was the deterrence of future harm. If the scourge of sexual predation was to be stamped out, or at least controlled, there should be powerful motivation acting upon those who controlled institutions engaged in the care, protection and nurturing of children.
Underlying the cases holding employers vicariously liable for the unauthorised acts of employees was the idea that the employers might justly be held liable where the act fell within the ambit of the risk that the employer’s enterprise created or exacerbated. In addition, the policy purposes underlying the imposition of vicarious liability on employers were served only where the wrong was so connected with the employment that it could be said that the employer had introduced the risk of the wrong.
The inquiry was directed not at foreseeability of risks from specific conduct, but at foreseeability of the broad risks incident to a whole enterprise. However mere opportunity to commit the tort did not suffice. The enterprise and employment must not only provide the locale or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk.
The court should be guided by the following principles:-
- The court should openly confront the question of vicarious liability, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct.”
- The fundamental question was whether the wrongful act was sufficiently related to conduct authorised by the employer to justify the imposition of vicarious liability. Where this is so, vicarious liability would serve the policy considerations of provision of an adequate remedy and deterrence.
- There were subsidiary factors in determining (b):-
- the opportunity that the enterprise afforded the employee to abuse his or her power
- the extent to which the wrongful act may have furthered the employer’s aims
- the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise
- the extent of power conferred on the employee in relation to the victim
- the vulnerability of potential victims to wrongful exercise of the employee’s power
Applying these general considerations to sexual abuse by employees, vicarious liability would lie in these circumstances.
The next question was whether there should be an exemption for a non profit organisation. Lachlin J rejected that argument. The perspective of the innocent child had to be considered. The protection of a child should not be governed by the fact that the organisation charged with that protection was non profit making. Essentially children should not bear the cost of the harm that has been done to them so that others in society might benefit from the work of non-profit organisations. Loss should fall on the party that introduced the risk and had the better opportunity to control it.