Fri, 22 Oct 2004 09:07:26 -0400
Vicarious liability for intentional torts
problems that some judges have with the doctrinal rationale for
VL sometimes leads to startling decisions and consequences, particularly
when the judge have to decide the consequences of that VL on rights
the person held vicariously liable may have against others also
at fault or liable for the damages.
v Parkland School Division 63 Saskatchewan 2004 SKCA 13,
the Sask. C.A. held that, because vicarious liability is "derivative"
- their word, not mine, which, I think, shows the judges' misunderstanding
of the doctrine despite their citing of the modern scholarship and
recent Canadian cases which hold that it is liability, not the tort,
that is imposed - then if the person who committed the tort is unable
to seek contribution from the third party, then the person sued
in vicarious liability can be in no better position.
had been sexually assaulted by a teacher employed by the School
Board. DB sued the board and the teacher. The claims against the
board were based on the board's own direct negligence and vicarious
liability. The School Board commenced third party proceedings against
the parents. The claim over against the parents seems to have been
based on alleged negligence by the parents - that the parents were
negligent in not preventing the assaults from occurring. DB's claims
against the board based on the board's own negligence were dismissed
as statute barred by the expiration of the limitation period so
the action against the board proceeded only on the vicarious liability
cause of action.
earlier Saskatchewan Court of Appeal decision had held that the
Sask legislation applies only to negligence. So, under Sask legislation
the teacher had no cause of action for contribution against the
parents under the legislation. However, the DB decision is not based
on the wording of the Saskatchewan legislation. Instead, it decided
the case based on the alleged general principle I have quoted above.
Sask CA thought its conclusion necessarily follows from the principle
that, in VL, all that is imposed is liability for the wrong. It
wrote, in paragraph 26:
the Board is found to be liable, it will assume Ms. Carruthers's
liability (subject, of course, to any indemnification between
the Board and Ms. Carruthers, if applicable). ... Ms. Carruthers's
liability is attributed to the Board. It would be unreasonable,
if not illogical, to permit the Board to reduce its liability
when Ms. Carruthers could not do so. As the Chambers judge said,
"[i]n so far as the allegations against the defendant Board lie
in vicarious liability for the actions of Carruthers, such a liability
is derivative and .... they cannot be in a stronger position than
their employee would be in, in so far as a claim over against
the parents is concerned."
26 is not limited to vicarious liability for an intentional tort.
However, in para 1, the court's version of its conclusion is limited
in that fashion: "I have concluded that if the person who committed
the intentional tort is unable to seek contribution from the third
party, then the person sued in vicarious liability can be in no
is rather clear that what bothered the court was the fact that the
claim over was against the parents. The court made an explicit reference
to this in discussing the prospect of the teaching claiming over
"There is something inherently offensive about a relative or teacher
committing sexual acts and being able to argue that someone else
is liable because they should have prevented those acts from occurring"
and stated that under Sask. law it was unlikely that the teacher
would be able to obtain contribution from the parents.
is nothing in the reasons indicating that the members of the panel
asked themselves whether it made sense to deny the school board
- which was held liable without fault on its part - contribution
from others who might be at fault just because the teacher might
not be entitled to contribution.
is nothing in the reasons which suggests that the panel realized
that their logic would also defeat a contribution claim advanced
against another person also vicariously liable for the teacher's
Bennett Best Burn LLP
Original Message -----
From: Jason Neyers
To: David Wingfield
Sent: Wednesday, October 13, 2004 2:05 PM
Subject: Re: FWD: ODG: Re: Vicarious liability for intentional
no expert on the history of VL, if I remember correctly, (at least
some of) the original justifications for VL were not necessarily
social policy but rather theories based upon agency (acting through
another is acting yourself) or comparative fault (the one who places
trust should lose).
social policy justifications only really took complete hold when
everyone began to realize that the proposed theories could not actually
explain the doctrinal limits of VL. Once judges could not find a
readily useable theory they retreated into precedent following and/or
stating that it was based on policy justifications.
from what I remember of the historical perspective, one can see
principle give way to confusion give way to policy. The question
then becomes whether VL can be seen to be based on principle, hence
completing the circle, or whether policy is all that we are left
think VL can be explained in terms of justice, not policy but as
Harold has said, such a demonstration would require a paper. (By
the way, that paper is substantially complete should anyone be interested
in reading it).
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