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Articles | Fri 24th Apr, 2020
“To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera”
“The court generally has to decide whether the wrongful conduct was so closely connected with acts the employee was authorised to do that, for the purposes of the liability of his employer, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment’
“What occurred after the victim left the kiosk was relevantly unconnected with the employee’s employment. The approach of focusing on any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim, is also designedly different from the approach in Mohamud. This is because the test of vicariously liability, requiring no more than sufficiency of connection – unconstrained by the outer limits of the course or scope of employment – is likely to result in the imposition of vicarious liability for wrongful acts for which the employment provides no more than an opportunity”
“the close connection test has been applied differently in cases concerned with the sexual abuse of children, which cannot be regarded as something done by the employee while acting in the ordinary course of his employment. Instead, the courts have emphasised the importance of criteria that are particularly relevant to that form of wrongdoing, such as the employer’s conferral of authority on the employee over the victims, which he has abused”
“It remains, however, to consider how vicarious liability for intentional wrongdoing fits in with Salmond’s formulation. The answer is that it does not cope ideally with such cases. It must, however, be remembered that the great tort writer did not attempt to enunciate precise propositions of law on vicarious liability. At most he propounded a broad test which deems as within the course of employment “a wrongful and unauthorised mode of doing some act authorised by the master”. And he emphasised the connection between the authorised acts and the “improper modes” of doing them. In reality it is simply a practical test serving as a dividing line between cases where it is or is not just to impose vicarious liability. The usefulness of the Salmond formulation is, however, crucially dependent on focusing on the right act of the employee
If this approach to the nature of employment is adopted, it is not necessary to ask the simplistic question whether in the cases under consideration the acts of sexual abuse were modes of doing authorised acts. It becomes possible to consider the question of vicarious liability on the basis that the employer undertook to care for the boys through the services of the warden and that there is a very close connection between the torts of the warden and his employment. After all, they were committed in the time and on the premises of the employers while the warden was also busy caring for the children”
“did not come out of the blue. On the contrary, it was a development based on a line of decisions of high authority dating from Lloyd v Grace, Smith & Co  AC 716 where vicarious liability was found established in cases of intentional wrongs. Lister is, however, important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor’s employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment”
“Cases which concern sexual harassment or sexual abuse committed by an employee should be approached in the same way as any other case where questions of vicarious liability arises. I can see no reason for putting them into any special category of their own.”
“While the facts of Lister are very different from the circumstances of the present case, the principles enunciated in Lister are of general application to intentional torts”.
[…] Atiyah, Vicarious Liability in the Law of Torts … suggested, at p 171: “The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on.” These passages are not to be read as confining the doctrine to cases where the employer is carrying on business for profit. They are based on the more general idea that a person who employs another for his own ends inevitably creates a risk that the employee will commit a legal wrong. If the employer’s objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business.
“Moreover, one must consider the relevance of the risk created by the fact that the police authorities routinely permitted constables like Constable Morgan to take loaded service revolvers home, and to carry them while off duty. The social utility of allowing such a licence to off duty policemen may be a matter of debate. But the state certainly created risks of the kind to which Bingham JA made reference. It does not follow that the using of a service revolver by a policeman would without more make the police authority vicariously liable. That would be going too far. But taking into account the dominant feature of this case, viz that the constable at all material times purported to act as a policeman, the risks created by the police authorities reinforce the conclusion that vicarious liability is established”.
“Although all this was, no doubt, said with sex abuse cases primarily in mind, it is a useful general statement of the position and justifies an inquiry into the question whether there is a close connection between the creation or enhancement of a risk and the wrong that accrues therefrom. On the facts of this case I would, by reference merely to the passage quoted above, conclude that, although the defendant employers did create a risk by requiring their employees to work with thinning agents, it is difficult to say that the creation of that risk was sufficiently closely connected with Mr Wilkinson’s highly reckless act of splashing the thinner onto Mr Graham’s overalls and then using a cigarette lighter in his vicinity. It is only the first of McLachlin J’s five factors that is present in this case. The other factors tell against the imposition of liability. The wrongful act did not further the employer’s aims; there was no friction or confrontation inherent in the employer’s enterprise and such intimacy as there was likewise had no connection with that enterprise; it is inappropriate to talk either of power conferred on Mr Wilkinson in relation to Mr Graham or any particular vulnerability of Mr Graham to the wrongful exercise of such power”.
“…the court is not required in each case to conduct a retrospective assessment of the degree to which the employee would have been considered to present a risk. As Immanuel Kant wrote: “Out of the crooked timber of humanity, no straight thing was ever made.” The risk of an employee misusing his position is one of life’s unavoidable facts”.
“On the judge’s findings, that for reasons of his own Mr Khan, having declined Mr Mohamud’s request — for reasons of his own which are unexplained — decided to do what he did; and went out on to the fore court to assault Mr Khan, when it was no part of his job to do anything in respect of drivers there who were behaving perfectly properly. If Morrisons were liable it would mean that in practically every case where an employee was required to engage with the public, his employer would be liable for any assault which followed on from such an engagement. That appears to me to be a step too far”
“The key to this case, in my view, is that the Club’s “enterprise” was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members. The opportunity that the Club afforded Griffiths to abuse whatever power he may have had was slight. The sexual abuse only became possible when Griffiths managed to subvert the public nature of the activities. The success of his agenda of personal gratification, which ultimately progressed to sex acts, depended on his success in isolating the victims from the group. The progress from the Club’s program to the sexual assaults was a chain with multiple links, none of which could be characterized as an inevitable or natural “outgrowth” of its predecessor:
(1) The Club provided Griffiths with the opportunity to work with children.
(2) While it was undoubtedly part of Griffiths’ job to develop a positive rapport with the children, the relationship envisaged by the Club had no element of intimacy comparable to the situation in Children’s Foundation.
(3) While Griffiths might come into occasional physical contact with children by reason of his job, e.g., steadying a child on a piece of gym equipment, the authorized “touching” had no more to do with parenting, nurture or intimacy than could be said of a normal adult reaching out to steady a child who, e.g., tripped over a carpet.
(4) Griffiths enticed each child to his home to cultivate a one-on-one relationship. The Club activities did not require the Program Director to be alone with a child off Club premises and outside Club hours. Such a practice was explicitly prohibited after 1988.
(5) Griffiths established his own bait of home attractions, such as video games, that had nothing to do with Club activities. It was not part of his job to entertain children at home after hours.
(6) Unlike the situation in Children’s Foundation, the appellants’ mother was a parental authority interposed between the assailant and his victims. She gave permission to the children to go to Griffiths’ home. No doubt, knowing of Griffiths’ job at the Club, she did not regard him as a stranger or as a threat. Nevertheless, it must have been evident to a reasonably cautious parent that Griffiths’ home entertainment was not part of the Club’s program.
(7) Once the children were drawn into his home-based activities, Griffiths gradually increased the level of intimacy, initially with Randy and subsequently with Jody, in terms of banter and sexually suggestive talk. This was not only unauthorized, it was antithetical to the moral values promoted by the Club.
(8) Eventually, when Griffiths saw his chance, he committed the assaults.
81 If it was the law that the provision of “opportunity” was enough to render the employer liable, then the progression from step 1 to step 8 might be seen as a series of “but-for” opportunities sufficient to impose liability. But that is not the law. I accept that “but for” the opportunity created by Griffiths’ employment at the Club, it is unlikely these assaults would have occurred in the way that they did. As pointed out by McLachlin J. in Children’s Foundation (at para. 37), however, the relevant nexus, if it exists, is between the job-related conduct at step one and Griffiths’ criminal assault at step eight. It is not enough to postulate a series of steps each of which might not have happened “but for” the previous steps. Where, as here, the chain of events constitutes independent initiatives on the part of the employee for his personal gratification, the ultimate misconduct is too remote from the employer’s enterprise to justify “no fault” liability. Direct liability would attach, of course, if the employer could be found derelict in respect of any of its own responsibilities towards these children. However, this appeal has been argued on the assumption that there is no such fault on the part of the employer”
“Read in context, Lord Toulson’s comments that there was “an unbroken sequence of events”, and that it was “a seamless episode”, were not directed towards the temporal or causal connection between the various events, but towards the capacity in which Mr Khan was acting when those events took place. Lord Toulson was explaining why, in his view, Mr Khan was acting throughout the entire episode in the course of his employment. When he followed the motorist out of the kiosk and on to the forecourt, he was following up on what he had said to the motorist in the kiosk. He ordered the motorist to keep away from his employer’s premises, and reinforced that order by committing the tort. In doing so, he was “purporting to act about his employer’s business”. As Lord Toulson said, “this was not something personal”.
“The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances”