Sun, 23 Oct 2005 21:23:21 +0200
Sup Ct Canada Non-Delegable Duty
interested in this notion that non-delegable duties and vicarious
liability should be seen as mutually exclusive. Your email to Neil
made reference, via abbreviations, to three cases that I take it
suggested that the two are mutually exclusive. (Kirby J held the
same view in Lepore, whereas Gummow and Hayne in that case
thought - wrongly I'm sure - that non-delegable duty is a subspecies
of vicarious liability.)
you please supply fuller details of those cases?
having read those cases, I reserve the right to disagree with myself.
for what it is worth, my intuitive response to the suggestion that
non-delegable duties and vicarious liability should be treated as
mutually exclusive is that I don't buy that line of argument. Nor
do I buy the explanation of it in (if memory serves) Prue Vines'
analysis of Lepore in the Melbourne University Law Review.
What the argument seems to me to assume is that the spheres of operation
of non-delegable duty and vic liab are totally separate. But why
assume this? Wasn't the HL concerned to insist on a non-delegable
duty in the employment context in Wilsons only because
vicarious liability wasn't available because of the common employment
doctrine. Now that that doctrine no longer exists, would we seriously
say that if the same facts arose today there would be no prospect
of holding D liable on the basis of vicarious liability?
course, vicarious liability cannot apply to independent contractors.
But non-delegable duties need not necessarily be confined to cases
have always thought that vicarious liability and non-delegable duties
are both odd & little understood beasts, but the fact that they
are imperfectly understood is hardly a basis on which to ASSUME
that they never traverse the same terrain. I would have thought
that it was foolish to make any assumptions about a thing one hardly
the references please.
To: Neil Foster
Subject: ODG: Sup Ct Canada Non-Delegable Duty
Date: Sun, 23 Oct 2005 13:39:09 -0400
... can anyone suggest why in a decision which seems from the
headnote to be dealing with the issue of non-delegable duty
of care for sexual assault of children in care ... [there isn't]
a single reference to the High Court of Australia decision in
Lepore v NSW?
scope of the non-delegable duty argument (at least in cases where
vicarious liability is an available argument) was severely circumscribed
in prior SCC cases referred to in Blackwater - KLB,
EDG, Lewis - and neither of KLB nor
EDG mention Lepore. Look at KLB starting
at para 30 for the non-delegable duty discussion. I've mentioned
that Lepore isn't referred to in the SCC cases because
KLB et al were argued at the end of 2002 and judgment
was released in the fall of 2003, after Lepore. We should
assume that the SCC panel in KLB et al knew about Lepore.
That might be part of the reason.
from that, the only reported decision that I'm aware of in which
the HCA decision in Lepore was cited is another sexual
assault case at a residential school. Lepore was referred
to in the BCCA decision: B.(E.)
v. Order of the Oblates of Mary Immaculate, 2003 BCCA
289 (CanLII). The appeal in that case was argued before the SCC
in Dec 2004 and is presently under reserve. Perhaps the SCC is
saving any discussion of Lepore for its reasons in Oblates.
(I make no reference to the possibility of the reappearance of
the wandering inflatables from the circa 1980s Pink Floyd London
seems to me that the statement at the end of para 17 of the BCCA
decision in Oblates is probably as good as any summary
of the current Canadian approach to cases were non-delegable duty
liability and vicarious liability might overlap. It comes from
the BCCA reasons in EDG: "I do not think that vicarious
liability and non-delegable duty should overlap to permit inconsistent
results for the same tort by an employee. The duplication of vicarious
liability and non-delegable duty would create doctrinal confusion
for no valid policy purpose."
expect there are other readers of this list who could provide a
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