Mon, 24 Oct 2005 11:33:57 -0400
Two employers vicarious liability apportionment contribution
have just scanned over the headnote but I have some questions for
those on the list. In a true partnership situation who is the employer
(Any traditional cases would be much appreciated)? Before modern
civil procedure innovations, would one sue the partner who did the
most supervision? If that is the case, then wouldn't that one partner
have a right of indemnity from his other partners (who are his mutual
agents) if the hiring had been in the course of the partner's agency?
If that seems correct, then the issue of two people being vicariously
liable seems something on a non-innovation since it would have been
always the rule.
more innovative part of decision then seems to be the finding of
partnership between entities that are not people jointly pursuing
a profit (i.e. are Charities). Does anyone know of any case law
on that issue?
not aware that there ever was a "charitable immunity"
doctrine in Australian law so I won't comment on that. But I'd
be grateful for others' comments on the "two employer"
aspect of this decision. I haven't had a chance to read the whole
judgement but I notice this issue is discussed in Blackwater
at paras - in what to me is an astonishingly cavalier
way- a reference back to Atiyah's book from 1967 (!) is used to
simply declare that there is no problem with a person having two
employers. I can just believe it if we are talking about
someone engaged by partners in a firm, where there is a true "partnership"
in the sense recognised by the law for many years of people jointly
pursuing a profit. But to then slide over and say this applies
here because in some loose sense the Church and Canada were engaged
in a "partnership" in caring for children seems a bit
rich. After all, at least the Eng CA in Viasystems thought
it necessary to analyse the previous law in some detail before
making what they seemed to acknowledge to be a change.
course it is entirely likely that I am completely ignorant of developments
in the common law in Canada which have previously seen an acceptance
of the "two employers" view. I'd be grateful if anyone
can enlighten me if this is so.
Also maybe I'm just feeling particularly parochial but 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 does my search facility reveal not
a single reference to the High Court of Australia decision in
Lepore v NSW?
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
(519) 661-2111 x. 88435
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