Date: Tue, 12 Oct 2004 17:05:42 -0400

From: Jason Neyers

Subject: Vicarious liability for intentional torts

Dear Harold (and other ODG colleagues):

I would be interested in two things:

(a) why do you think that it was fortunate that the PC did not use Lepore. Personally, I find it rather disappointing. (As an aside, is the remit of the PC to apply the English common law or the common law, if it is the latter, then the Lepore omission is particularly troublesome since it indicates that there is a divergence in the common law of the English speaking peoples. For example, would the PC have ignored Lepore if it was a PC decision from Australia?).

(b) why do you agree that if a school entrusts the care of children to a teacher, who sexually abuses them, the school should be vicariously liable for the teacher's acts as opposed to the gardener?

I agree with Robert that the "new VL test" is useless and would add that moreover it is unjust since it cannot explain why a close connection should lead to VL.

With that said, I think that the decision can be supported on one of two grounds:

a) The AG is personally negligent for allowing officers, or this particular officer, to carry dangerous weapons home; or

b) that VL is justified since an inference that can be made from the sparse evidence is that this was an over-zealous performance of a policeman's 24 hr duties, which has traditionally lead to vicarious liability.

Cheers,

Harold Luntz wrote:

In relation to Robert's statement that "you cannot bail boys", people may be amused by the similar view of McPherson J when one of the three cases that came before the High Court of Australia in Lepore was in the Queensland CA, Rich v Queensland (2001) Aust Torts Reps 81-626. He referred to what was said in the NSW CA in Lepore and commented:

Mason P also referred to the decision in Morris v C W Martin & Sons Ltd [1966] 1 QB 716, in which the defendant bailee of a fur coat was held liable to the plaintiff bailor for theft of the coat by a servant of an authorised sub-bailee to whom it had been delivered. Commenting on the decision of the English Court of Appeal in that case, Mason P said that, if Morris v C W Martin & Sons Ltd was good law in Australia, and if the State was not liable in Lepore v New South Wales, it must follow that the law imposes a higher responsibility on a bailee for looking after a fur coat than it does on a school authority for looking after a child. Quite possibly it does. Because children in so many ways obviously differ from fur coats, they attract a different set of legal norms. For one thing, they cannot be protected from injury by the simple expedient of locking them away in a safe place. That is not why they are sent to school. For another, the plaintiffs in this case were not stolen or kidnapped by (on this analogy) a servant of the States sub-bailor [the teacher]. It may perhaps be open to question whether what happened to them here necessarily amounted in law to an act of conversion. But, in any event, conversion is a wrong done to the bailor or other person entitled to immediate possession, who, by analogy with a chattel, would presumably be the plaintiffs parents. The parents are not the ones who have brought this action for damages for the harm done to the plaintiffs (at [19]).

However, despite these differences, I agree that if a school entrusts the care of children to a teacher, who sexually abuses them, the school should be vicariously liable for the teacher's acts. But, as Lister said, not for the acts of a gardener whose responsibility is to care for the garden, not the children.

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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