EB v Order of the Oblates of Mary Immaculate 2005

FACTS:-

Between 1957 and 1962, the Claimant attended a residential school for children run by the Defendant. He was abused by S, a lay employee, who worked as a baker, boat driver and odd job man, and who resided in the school grounds. The Claimant sued the Defendant, alleging that they were vicariously liable for the actions of S. He also alleged negligence.

HELD:-

Binnie J went over the facts of the case and said that a finding of vicarious liability was a mixed question of fact and law. He referred to the case of Canadian Pacific Railway Co. v Lockhart [1942] AC 591, where the Privy Council stated that an employer was only vicariously liable if the employee’s unauthorised acts were so connected with the act that the employer had authorised, that they might be rightly be regarded as modes albeit improper modes of doing what has been authorised. This was known as the “Salmond test”.

A weakness of the Salmond test was that it did not address the policy considerations that argued for a finding of vicarious liability. In the case of Bazley v Curry 6th October 1999 Canadian Supreme Court the court said that the Salmond test should be placed in the larger context of the employer/enterprise and the risk that the enterprise had introduced into the community. The case of Bazley also showed why vicarious liability could be imposed on any employer for an intentional tort carried out by an employee in defiance of an employer. (Canadian Pacific Railway Co. v Lockhart [1942] AC 491). Improper or not the abuse of the employee’s position and the abnegation of his duty did not sever the connection with his employment. (Lister v Hesley Hall Ltd. [2002] 1 AC 215).

However the global inclusion of all employees, including odd job men, painted too broad a brush. It went against the policy goal of ensuring that compensation was both effective and fair. In the case of Lister v Hesley Hall, the House of Lords in the UK had said that the work had to create a sufficient connection between the acts of the abuse, and the work that the employee had been employed to do.

In the present case the abuser did not have the authority to insinuate himself into the intimate life of the Claimant or any of the other students except his own children and grandchildren.

The court in the case of Bazley had said that in assessing whether vicarious liability should be imposed in a given case, the court should look to whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case fell. If prior cases did not clearly suggest a solution, the next step was to determine whether vicarious liability should be imposed in light of the broader policy rationales behind this form of indirect liability. The court should consider a number of factors:-

a)    the opportunity that the enterprise afforded the employee for abuse
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.

Stage 1 – Was the outcome of this case dictated by precedent?

Binnie J considered a number of cases, but none of them had the precise configuration of the present case. The limited duties and role of the abuser militated against a finding of vicarious liability. .

In relation to the five factors (a) to (e), Binnie J said:-

(a)    The abuser had an opportunity to abuse, but it was at the low end of the scale. He was not permitted or required to be with the children at all.
(b)    The wrongful acts had nothing to do with further the respondent’s aims
(c)    There was no intimacy between the children and the abuser inherent in his job
(d)    The Defendant did not confer any power on the abuser in relation to the Claimant
(e)    The students in any residential school were vulnerable and required protection, but it was the nature of a residential institution rather than the power conferred by the Defendant on the abuser that fed the vulnerability.

So the Claimant had not established a strong connection between what the employer was asking the employee to do and the wrongful act.

Stage 2 – Consideration of Policy

The court was required to consider whether the imposition of vicarious liability on the facts of the case would further the broader policy rationales used to justify it, namely to provide effective compensation and to deter such misconduct in the future. However in Bazley it was held that the twin policy concerns were served only where the wrong was so connected with the employment that it could be said that the employer has introduced the risk of the wrong. The Defendants had argued that their good intentions towards students in their care should be given consideration. However a church organisation, while non profit making in nature, would generally have sufficient capacity for loss spreading and taking measures to deter future misconduct. Imposing no fault liability would benefit the victim and deter similar conduct in the future. However the strong connection test could not be met given the abuser’s limited role.

Conclusion

Therefore the case should be remitted to the trial court for a determination as to whether the Defendant was liable in negligence. The appeal on vicarious liability should be dismissed without costs.

Abella J dissented. She felt that the true nature of the abuser’s employment and the evidence showing his ability to control children pointed to the imposition of vicarious liability.