Employers Liability for its Employees: Sex Abuse - Case Study Example

Employer’s Liability for its Employees: Sex Abuse Case Institutional Affiliation Question 1 Curry’s Case Scenario This case is one of vicarious liability in sexual assault The principle of vicarious liability states that an employer or principal can be held liable for the misconduct or negligence of his/her employee or agent implying that the employer will be held responsible for the actions of his employee/agent, which causes losses to third parties in the course of duty. Therefore, it is irrelevant that the employer or the principal did not actually inflict the loss sustained by the third party (Grace & Vella, 2000). The legal provisions applicable to this case in determination of whether the employer is liable are contained in the case of Bazley v.Curry. The case involved an employer who operated a care facility for mentally disabled children. One of the employees in the facility sexually abused a child. The supreme could of Canada held that the employer was vicariously liable for the unauthorized, intentional and wrong act of the employee. The Supreme Court issued a two-part approach to test whether an employer should be held vicariously liable. The test is as follows: 1) The court shall openly assess whether the liability should be imposed against the employer, rather than obscuring the decision under semantic discussions of scope of the employment and mode of the conduct. 2) The court shall assess whether the wrong act is sufficiently connected to conduct authorized by the employer to warrant imposition of liability on the employer. Where there is sufficient connection between the offence and the authority granted to the employee, vicarious liability will be enforced on the employer to serve as adequate remedy for the plaintiff and as deterrence. In determining the sufficiency of connection, the court shall consider the following factors: The opportunity that that the employer or the principal gives the employee or agent to abuse their powers. The extent to which employers enterprise furthers the wrong act. The extent to which the wrong act relates to friction, intimacy or confrontation innate in the employer’s enterprise. The extent of the power conferred to the employee over the victim and, The susceptibility of the potential victims to the wrongful use of the employee’s power. In addition, in the case of sexual assault, John Doe v. Bennett in which a Parish priest (Bennet) of the Roman Catholic Diocese in Newfoundland, Canada abused several young boys who were under his care for thirty years while serving as a parish priest. (White, 2005). The Canada Supreme Court upheld the decision of a lower court and ruled that, the Roman Catholic Diocese was vicariously directly liable for the actions of Bennet. Therefore, from the legal provisions and cases aforementioned, it is evident that the defendant (principle) in Curry’s case scenario is vicariously liable for the misconduct of his/her employee, curry if the application of the second part of the Bazley test in Curry’s case is anything to go by because: Firstly, the employer afforded Curry the opportunity to abuse his power in that the job description of the employee was to act as a substitute parent and taking care of the children in all aspects including bathing and taking them to bed. Secondly, the employee’s act of sexual assault was strongly related to the psychological intimacy innate in his role as a parent. Furthermore, the context of the scenario leads the mentally troubled children to trust Curry completely. The intimacy kind of relationship between Curry and the mentally challenged children increased their risk of harm. Thirdly, the employer apparently gave the employee huge power over the emotionally troubled kid. Because of the power conferred to him by his employer, Curry was allowed to touch the plaintiff child’s intimate body areas while bathing them. While Curry had a particularly forceful personality over the kids, the source of his power over the victim lay in his role as a caregiver, conferred to him by the employer. Lastly, the victim was highly susceptible to Curry’s abuse of his power, given that the victim is a mentally troubled kid. A child is not able to physically protect himself or herself as an adult would do. The child is also susceptible to threats upon disclosure of abuse perpetrated on him/her. Further, in the case of L.E.W. v. United Church of Canada, the employer could not be held vicariously liable because there was no sufficient connection between the unauthorized act and the permitted conduct (White, 2005). In Bazley’s case, it was determined that the scope of employment (Salmond test) as established in the case, Canadian Pacific Railway Company v. Lockhart is still applicable in determination of whether the employer is vicariously liable. An employee’s conduct is in the scope of his employment where it consist of either (1) authorized acts by the employer or (2) unauthorized acts that are so related with the act authorized by the employer such that they may correctly be considered as modes even though improper modes of doing what is authorized (Morton, 2008). Therefore, applying the Salmond test above, the employer is vicariously liable because Curry’s misconduct clearly fell within the scope of his employment. Other than the misconduct occurring in the employers premises, Curry’s unauthorized act (sexual assault) was so connected with the acts authorized by the employer (bathing children and taking them to bed at night) such that it can be rightly be considered as a mode even though an improper mode of doing what the employer had authorized. Question 2 It makes no difference if the actions of Curry were not authorized by the employer. In the ruling of the case of John Doe v. Bennett , there was no evidence produced before the Supreme court to determine whether the defendant (employer diocese) was aware of the offender’s(parish priest) acts, that the employer turned a blind eye to the wrong acts or failed to adequately supervise the offender. The Supreme Court clearly stated that, the nature of the relationship that existed between the employer Diocese and the priest, irrespective of negligence on part of the Diocese in supervising his behavior, was adequate to establish a close relationship between the offense and the authorized conduct and satisfied the second part of Bazley test (White, 2005). Using the facts in the above case of John Doe v. Bennett, it is, therefore, immaterial that the employer in Curry’s case had not authorized Curry’s wrongful acts. The nature of the relationship between the employer (child care facility) and Curry , irrespective of the employer’s negligence in supervision of Curry’s behavior is clearly sufficient to establish a close relationship between Curry’s misconduct and the conduct authorized(bathing children and putting them to bed) and satisfies the second part of the Bazley test. Question 3 It is irrelevant that the defendant is a charitable organization. In the past, the issue of whether non- profit organizations can be held vicariously liable was contentious. Recent rulings by the Supreme Court of Canada have clarified the issue of when a church and assumedly any charitable organization would be held liable for losses on third parties arising from misconduct of its agents or employees including sexual misconduct (White, 2005). The charitable organization in curry’s case is vicariously liable as it would be for a profit making organization. Provided, the two tests provided in Bazley case are met, liability will be imposed on it for the intentional wrongful act of its employee. In Bazley v. Curry, the Canada’s Supreme Court turned down arguments that charitable organizations should not be held liable from liability of tort due to public interest. However, in a previous case of Jacobi v. Griffiths, a majority judges of the supreme suggested that the not-for-profit status of an employer might negatively impact on the policy basis that underlie the enforcement of vicarious liability. To solve this apparent inconsistency, Chief Justice McLanclin in the case of John Doe v. Bennet described above held that although majority juries in Jacobi v. Griffiths suggested that non-profit status of an employer may adversely impact on the policy basis underlying the enforcement of vicarious liability, they did not state that not -for-profit employers ought not to be held liable, nor did they affirm the ancient charitable immunity doctrine (White, 2005). In deciding Bennet’s case, the Supreme Court, while applying the first part of Bazley test noted that there were no previous cases that had been decided directly on the point of vicarious liability of not-for- profit organizations. The ruling stated a case in Nova Scotia Court of Appeal where it was held that an episcopal organization could not be held liable for sexual offences committed by its cleric because the cleric had acted completely out of the religious doctrines of the church that he had vowed to uphold. However, the Supreme Court noted that this precedent was not adopted by other courts and resolved that the relevant case law supported enforcement of vicarious liability on episcopal organizations (White, 2005). Several other cases have involved fact situations of not-for-profit organizations, especially churches, being held vicariously liable for sexual abuse. In P.D. v Allen, the plaintiff, a young girl, was a victim of sexual assault by a priest. The judge in Ontario Superior court ruled that the Diocese in question could be held vicariously liable for the priest’s misconduct and reproved the Diocese for being consciously blind (White, 2005). Question 4 The key issues in this case are “is an employer vicariously liable for sexual misconduct of its employees?” and “Can a charitable organization be held vicariously liable?” Applying the Bazley principles, the employer in this case is vicariously liable for the tortious act of its employee, which is sufficiently related to the conduct authorized. Applying the facts in Bennet case, the employer is vicariously liable, and it is immaterial that it is a charitable organization. The judgment of this case is that the employer should pay damages to the plaintiff. The judgment is intended to be a sensible way of encouraging non-profit organizations to take steps to reduce risk of harm to those under their care in future. The judgment is also intended to be an appropriate mechanism to compensate the victim. References Grace, E., & Vella, S. (2000). Civil liability for sexual abuse and violence in Canada. Markham, Ont.: Butterworths. Morton, J. (2008). Vicarious Liability in Sexual Assault. Smhilaw.com. Retrieved 25 October 2014, from http://www.smhilaw.com/Publications/ART-0507-VicariousLiability White, M. (2005). Supreme Court of Canada Brings Clarity to Vicarious Liability of Churches in Canada. Carters.ca. Retrieved 25 October 2014, from http://www.carters.ca/pub/bulletin/church/2005/chchlb11.htm Read More