Date: Fri, 7 Mar 2008 09:05
From: Geoff McLay
Subject: New Zealand Judgment on Vicarious Liability
You may be interested in the following judgment from the NZCA released yesterday:
 NZCA 49
A v Roman Catholic Archdiocese of Wellington & Ors
6 March 2008
The case was an unusual one in that, by and large, the trial court found that physical abuse had not actually been committed against the child by the order (although there was a holding of some relatively minor corporal punishment that the Court accepted might have gone beyond what was permitted). The appeal nevertheless focused on the way that the child had been brought up in the orphanage and whether there had been an environment which had emotionally harmed her. The Court of Appeal dismissed the appeal.
There are a number of things that people on this list might be interested:
First the Court restricted the previous leading NZ authority on vicarious liability, S v A-G, in which the Court of Appeal held that the Government was vicariously liable for abuse committed by foster parents. Here the High Court had held that the plaintiff had been abused on holiday placements with two families. There was insufficient control to justify imposing vicarious liability (the analysis seemed to be more like KLB in Canada, which was released two months after S).
Second, the Court accepted that the Orphanage was in loco parentis, and that as such there could be no duty in decisions relating to the best way to bring up the child, as opposed to a conceded duty to keep her safe. There is a prolonged analysis of the leading NZ case McCallion v Dodd which is in a lot of Commonwealth text books. In essence parents can’t owe a duty to ensure that their children have an optimum upbringing. There is no duty on parents qua parent.
Third the Court did accept that the duty to keep the child safe also meant that she ought to be kept emotionally safe. But that this has to be considered within the context of the time.
Fourth in accepting the broader duty William Young P again explained his own approach to findings of care:
 In negligence cases with a public law overlay, English courts have sometimes sought to confine liability to circumstances which equate to Wednesbury unreasonableness (cf the speech of Lord Hoffmann in Stovin v Wise  AC 923 at 953 (HL)). This approach is broadly equivalent to confining liability to instances of gross negligence and there are hints of this in Lord Nicholls’ speech in Phelps. But this Court has been reluctant to conflate public law and negligence principles (see the discussion in Attorney-General v Body Corporate 200200  1 NZLR 95 at  – ). We have also been cautious about purely situational duties, that is duties of care which are defined by either reference to a very particular risk which has crystallised or what is said to be the breach ...
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