WEEK 7

LECTURES 11 & 12

STRICT LIABILITY

• Throughout the common law world, the salient idea governing the development of tort
liability for the last century and a half has been the idea of fault (intentional torts and
negligence)
• Despite the triumph of fault, there are pockets of liability where the defendant’s fault is
questionable — if present at all
• This is the known as “strict liability” — where liability is the result of the defendant’s
causation of the harm under particular circumstances rather than the defendant’s
culpability

Vincent v Lake Erie Transportation Co (Minnesota Supreme Court, 1910)

• FACTS: A boat owned by the defendant — the Reynolds — was unloading goods at
Vincent’s wharf on 27 November 1905 when a storm blew in. It was very hazardous (in
fact, winds began blowing at 50 mph) to be out on the water so the master of the Reynolds
did not leave the wharf but stayed moored, replacing lines as they wore through. The wharf
was damaged by the force of the defendant’s boat banging into it. As in, the wind and
waves were so fiercely violent that the Reynolds was “constantly being lifted and thrown
against the dock […]”
• It was established by the trial court that the defendant's action did not constitute
trespass since common law grants possessory rights to those who require the use of
other people’s property in order to save lives.
• I SSUE : If the defendant did not violate the plaintiff’s possessory rights by remaining
moored to wharf, can the plaintiff recover for damages to the wharf during a storm?
• HELD: Yes
• While Lake Erie Transportation cannot be held liable for trespass due to private
necessity, they had used Vincent’s property to preserve their own lives, and thus, are
liable for the resulting damages to the plaintiff.
• If, however, the boat had remained secured to the dock without further action by the
defendant, they would not have been liable. Lake Erie Transportation was held liable
because affirmative measures were taken to secure the boat.

JUSTICE O’BRIEN: The situation was one in which the ordinary rules regulating property
rights were suspended by forces beyond human control, and if, without the direct
intervention of some at by the one sought to be held liable, the property of another was
injured, such injury must be attributed to the act of God, and not to the wrongful act of
the person sought to be charged. If during the storm the Reynolds had entered the harbor,
and while there, had become disabled and been thrown against the plaintiff’s dock, the
plaintiffs could not have recovered. Against, if while attempting to hold fast to the dock
the lines had parted, without any negligence, and the vessel carried against some other
boat or dock in the harbor, there would be no liability upon her owner. But here, those in
charge of the vessel deliberately and by their direct efforts held her in such a position that

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 the damage to the dock resulted, and, having thus preserved the ship to the expense of the
dock, it seems to us that her owners are responsible to the dock owners to the extent of
the injury inflicted. [Emphasis added].

• RATIO: There are some areas of the common law which allow a party to be found liable
despite absence of fault requirement.

Munn & Co v Sir John Crosbie (Exchequer Court of Canada, 1967)

• FACTS: The Sir John Crosbie was unloading coal at the plaintiff’s wharf when a storm
came up. The boat remained moored to the dock and caused significant damage. An action
was brought for damages sustained by the plaintiff's wharf as a result of the defendant’s
ship being pressed against the wharf by a wind of gale force based on the defendant's
negligence for failing to remove the ship from the wharf and in failing to take in due time
unspecified measures of avoiding damage to the wharf.
• ISSUE: Who is liable for the damage to a wharf during a storm?
• HELD: Unlike in Vincent v Lake Erie Transportation Co, the crew of the Sir John Crosbie
took no steps to keep the boat secure. The court, as a result, treated this as an inevitable
accident, just as if the boat has crashed non-negligently against the dock before it came.
• Liability in the Vincent case was based on the fact that those in charge of the ship
deliberately held it in the position that damage occurred by tying new ropes.
• In this case, there were no additional steps taken to preserve the ship at the expense of
the wharf. There was no evidence of renewal of lines to hold the ship in position that
would damage the dock in order to preserve the ship.

JUSTICE JACKETT: In this case, not only was there no allegation in the pleadings, but it
was not established that at any point of time, those in charge of the vessel took any steps
to preserve the ship at the expense of the wharf. There was evidence that additional bow
and stern lines were made fast when the wind was still southeasterly and tending to push
the ship away from the wharf, but it does not appear that this was done to protect the ship
at the expense of the wharf or that in the circumstances of wind and weather then
prevailing damage to the wharf was to be expected from further securing the ship in her
position. On this point, the trial Judge found that it was by no means certain at that time
that to ride out the storm at the wharf would necessarily cause damage to the wharf. The
defendant ship was there as an invitee and it would not be trespass for her to be pushed
by the wind into contact with the wharf. Save on the possible hypothesis that damage to
the wharf was to be expected by such pressing there could, as we see it, be no liability
arise therefrom, and even if damage were to be expected from the ship remaining there
and such a liability could arise it would, in our view, sound in negligence rather than in
trespass. On the question of what was reasonably foreseeable, it is not without
significance that no action was taken by the plaintiff either to terminate the defendant’s
invitation to remain moored to its property or to require the ship to leave the wharf. Nor
is it established that the ship would not have been held without the additional lines. In
fact, the additional lines had nothing to do with the damage since they had not effect on
pressing or even holding the ship against the wharf. In the Vincent case, the damage was
caused by pounding, and the renewing of the lines as they chafed or parted held the ship

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 in a position where she could pound against the wharf. Here, there is no evidence of
renewal of lines to hold the ship in position press against the wharf after she began to do
so, and there is thus no material fact upon which liability might be based beyond that of
the master’s decision in the circumstances not to move the ship away from the wharf. A
decision not to move may be evidence of negligence in the circumstances there is a duty
to move, but it is not in itself an act of trespass. [Emphasis added].

• RATIO: Vincent liability only comes into play in cases of necessity. In these cases, you are
liable in tort, but you must pay for the damages you caused.

Rylands v Fletcher (Court of Exchequer, 1866; HL, 1868)

• FACTS: In 1860, Rylands paid contractors to build a reservoir on his land, intending that it
should supply the Ainsworth Mill with water. Rylands played no active role in the
construction, instead contracting out to a competent engineer. While building it, the
contractors discovered a series of old coal shafts and passages under the land filled loosely
with soil and debris, which joined up with Thomas Fletcher’s adjoining mine. Rather than
blocking these shafts up, the contractors left them.
• On 11 December 1860, shortly after being filled for the first time, Rylands’ reservoir
burst and flooded Fletcher’s mine — the Red House Colliery — causing £937 worth of
damage.
• Fletcher pumped the water out, but on 17 April 1861, his pump burst, and the mine
again began to flood. At this point a mines inspector was brought in, and the sunken
coal shafts were discovered.
• Fletcher brought a claim against Rylands and the landowner, Jehu Horrocks, on 4
November 1861
• I SSUE : Is this an action for trespass or nuisance?
• HELD: Nuisance

JUSTICE BLACKBURN [COURT OF EXCHEQUER]: The question of law arises, What is the
obligation which the law casts on the person who, like the defendants, lawfully brings on
his land something which, though harmless whilst it remains there, will naturally do
mischief if it escape out of his land? It is agreed on all hands that he must take care to
keep in that which he has brought on the land and keeps there, in order that it may not
escape and damage his neighbors, but the question arises whether the duty which the law
casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or
is, as the majority of the Court of Exchequer have though, merely a duty to take all
reasonable and prudent precautions, in order to keep it in, but no more. […]

We think that the true rule of law is, that the person who, for his own purposes, brings on
his lands and collects and keeps there anything likely to do mischief if it escapes, must
keep it in at his peril. And if he does not do so, is prima facie answerable for all the
damage, which is the natural consequence of its escape. He can excuse himself by
showing that the escape was owing to the plaintiff’s default; or perhaps that the escape
was the consequence of vis major, or the act of God; but as nothing of this sort exists
here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as

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 above stated, seems on principle just. The person whose grass or corn is eaten down by
the escaping cattle of high neighbor, or whose mine is flooded by the water from his
neighbor’s reservoir, or whose cellar is invaded by the filth of his neighbor’s privy, or his
habitation is made unhealthy by the fumes and noisome vapors of his neighbor’s alkali
works, is damnified without fault of his own; and it seems but reasonable and just that the
neighbor, who has brought something on his own property which was not naturally there,
harmless to others so long as it was confined to his own property, but which he knows to
be mischievous if it gets on his neighbor’s, should be obliged to make good the damage
which ensues if he does not succeed in confine it to his own property. But for his act in
bringing it there is no mischief could have accrued, and it seems but just that he should at
his peril keep it there so that no mischief may accrue, or answer for the natural and
anticipated consequences. […]

The case that has most commonly occurred, and which is most frequently to be found in
the books, is as tot he obligation of the owner of cattle which he has brought on his land,
to prevent them escaping and doing mischief. The law as to them seems to be perfectly
settled from early times; the owner must keep them in at his peril, or he will be
answerable for the natural consequences of their escape; that is, with regard to tame
beasts, for the grass they eat and trample upon, though not for any injury to the person of
others, for our ancestors have settled that it is not the general nature of horses to kick, or
bulls to gore, but if the owner knows that the beast has a vicious propensity to attack
men, he will be answerable for that too. [Emphasis added].

• RATIO: A person who, for his own purposes, brings on his lands and collects and keeps
there anything likely to do mischief if it escapes, must keep it in at his peril. And if he does
not do so, is prima facie answerable for all the damage, which is the natural consequence
of its escape.

Rickards v Lothian (Privy Council, 1913)

• FACTS: The claimant rented premises on the second floor of a building, which was used for
commercial purposes, and ran a business from the premises he was renting. The defendant
was the owner of that building. He (the defendant) leased the building in parts to various
business tenants.
• The case arose because someone had maliciously blocked all the sinks in the bathrooms
on the 4th floor of the defendant’s building. The same person had then turned on all the
taps — clearly with the intention of causing a flood and therefore causing damage.
• Eventually, the flooding on the 4th floor travelled down to the second floor and damaged
the property of the claimant.
• The claimant then started the case, basing his claim on the rule in Rylands v Fletcher
arguing that he had suffered damage as a result of the escape of the water from the
defendant’s premises
• I SSUE : Whether a finding of non-natural use of land and Rylands v Fletcher liability could
be found where an escape (which otherwise might constitute such liability) was caused by
the malicious actions of a third party, rather than of the Defendants
• HELD: Defendant not liable

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 LORD MOULTON: The judgment of the Court of Exchequer Chamber […] was read by
Mellish LJ […]

[…] If, indeed, the making of a reservoir was a wrongful act in itself, it might be right to hold
that a person could not escape from the consequences of his own wrongful act. But it seems
to us absurd to hold that the making or the keeping a reservoir is a wrongful act in itself. The
wrongful act is not the making or keeping the reservoir, but the allowing or causing the water
to escape. If, indeed, the damages were occasioned by the act of the party without more — as
where a man accumulates water in his own land, but, owing to the peculiar nature or
conditions of the soil, the water escapes and does damage to his neighbor — the case of
Rylands v Fletcher establishes that he must be held liable. The accumulation of water in a
reservoir is not in itself wrongful; but the making it and suffering the water to escape, if
damage ensue, constitute a wrong. But the present case is distinguished from that of Rylands
v Fletcher in this, that it is not the act of the defendant in keeping this reservoir, an act in
itself lawful, which alone leads to the escape of the water, and so renders wrongful that which
but for such escape would have been lawful. […]

The provision of a proper supply of water to the various parts of a house is not only
reasonable, but has become, in accordance with modern sanitary views, an almost
necessary feature of town life […] It would be unreasonable for the law to regard those
who install or maintain such a system of supply as doing so at their own peril, with an
absolute liability for any damage resulting from its presence even when there has been no
negligence. It would be still more unreasonable if, as the respondent contends, such
liability were to be held to extend to the consequences of malicious acts on the part of
third persons. In such matters as the domestic supply of water or gas, it is essential that
the mode of supply should be such as to permit ready access for the purpose of use, and
hence, it is impossible to guard against willful mischief. Taps may be turned on, ball-
cocks fastened open, supply pipes cut, and waste-pipes blocked. Against such acts, no
precaution can prevail. It would be wholly unreasonable to hold an occupier responsible
for the consequences of such acts which he is powerless to prevent, when the provision of
the supply is not only a reasonable act on his party, but probably a duty. Such a doctrine
would, for example, make a householder liable for the consequences of an explosion
caused by a burglar breaking into his house during the night and leaving a gas tap open
[…] [Emphasis added]

Ploof v Putnam (Supreme Court of Vermont, 1908)

• FACTS: Putnam (defendant) owned an island and a dock on Lake Champlain. On 13

November 1904, Ploof (plaintiff) and his family were sailing their boat on the lake. A
violent storm arose that threatened the safety of Ploof’s boat and the lives of himself and
his family. Ploof anchored his boat to Putnam’s dock to save it from the storm. Putnam,
through his servant, untied Ploof’s boat from the dock. The boat crashed into the shore and
was destroyed, and Ploof and his family suffered injuries. Ploof brought suit against
Putnam for damages based on his injuries, arguing that his act of tying the boat to Putnam’s
dock was justified by necessity. The trial court entered judgment for Ploof, and Putnam
appealed.

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 • ISSUE: Were the plaintiff’s actions reasonably necessary to save the lives of the sloop’s
occupants?
• HELD: Yes.
• The nature of the sudden and violent storm compelled the plaintiff to moor to the
defendant’s dock to save his boat and the people in it, making the doctrine of necessity
applicable. 
• The doctrine of necessity “applies with special force to the preservation of human life.”
• For example, someone who is assaulted and whose life is in danger may run
through the property of another to escape from his attacker, and “one may sacrifice
the personal property of another to save his life or the lives of his fellows.” 
• The court cited other examples of necessity, such as a property owner driving out
trespassing sheep with his dog, which pursued them onto neighboring land, and a
traveler who entered a private property to get around an obstruction on the road
• RATIO: The doctrine of necessity applies with special force to the preservation of human
life. One assaulted and in peril of his life may run through the close of another to escape
from his assailant. One may sacrifice the personal property of another to save his life or the
lives of his fellows

Read v J Lyons & Co Ltd (HL, 1947)

• FACTS: The appellant (Ms. Read) was an employee of the Ministry of Supply mandated
with the duty to inspect the filling of shell cases at the Elstow Ordinance Factory (operated
by J Lyons & Co Ltd). However, she preferred and applied for other employment, as she
didn’t wish to go and inspect such fillings. On 31 August 1942, while the appellant was
lawfully in the shell filling shop in discharge of her duties, an explosion occurred — killing
one man and injuring the appellant.
• There was no negligence on the part of anyone filling the shells at the Elstow
Ordinance Factory
• I SSUE : Is J Lyons & Co Ltd liable for the injuries sustained by Ms. Read?
• HELD: No

VISCOUNT SIMON: There are instances, no doubt, in our law in which liability for damage
may be established apart from proof of negligence, but it appears to me logically
unnecessary and historically incorrect to refer to all these instances as deduced from one
common principle. The conditions under which such a liability arises are not necessarily
the same in each class of case.

Now, the strict liability recognized by this House to exist in Rylands v Fletcher is
conditioned by two elements, which I may call the condition of “escape” fro the land of
something likely to do mischief if it escapes, and the condition of “non-natural use” of
the land […] It is not necessary to analyze this second condition on the present occasion,
for in the case now before us the first essential condition of “escape” does not seem to me
to be present at all. “Escape,” for the purpose of applying the proposition in Rylands v
Fletcher means escape from a place which the defendant has occupation of, or control
over, to a place which is outside his occupation or control. Blackburn J several times
refers to the defendant’s duty as being the duty of “keeping a thing in” at the defendant’s

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peril and by “keeping in” he means, not preventing an explosive substance from
exploding, but preventing a thing which may inflict mischief from escaping from the area
which the defendant occupies or controls. […]

LORD MACMILLAN: Every activity in which man engages is fraught with some possible
element of danger to others. Experience shows that even from acts apparently innocuous,
injury to others may result. The more dangerous the act, the greater is the care that must
be taken in performing it. This relate itself to the principle in the modern law of torts that
liability exists only for consequences which a reasonable man would have foreseen. One
who engages in obviously dangerous operations must be taken to know that if he does not
take special precautions, injury to others may very well result. In my opinion, it would be
impracticable to frame a legal classification of things as things dangerous and things not
dangerous, attaching absolute liability in the case of the former, but not in the case of the
latter. […]

Accordingly, I am unable to accept the proposition that in law the manufacture of high
explosive shells is a dangerous operation, which imposes on the manufacturer an absolute
liability for any person injuries which may be sustained in consequence of his operations.
Strict liability, if you will, is imposed on him in the sense that he must exercise a high
degree of care, but that is all. The sound view, in my opinion, is that the law in all cases
exacts a degree of care commensurate with the risk created. It was suggested that some
operations are so intrinsically dangerous that no degree of care, however scrupulous, can
prevent the occurrence of accidents, and that those who choose for their own ends to
carry on such operations ought to be held to do so at their peril. If this were so, many
industries would have a serious liability imposed on them. Should it be thought that this
is a reasonable liability to impose in the public interest, it is for Parliament so to enact.
[…]

The doctrine of Rylands v Fletcher, as I understand it, derives from a conception of the
mutual duties of adjoining or neighboring landowners and its congeners are trespass and
nuisance. If its foundation is to be found in the injunction sic utter two ut alien non
laedas, then it is manifest that it has nothing to do with personal injuries. The duty is to
refrain from injuring not alium but alienum. The two prerequisites of the doctrine are that
there must be the escape of something from one man’s close to another man’s close and
that, that which escapes must have been brought on the land from which it escapes in
consequence of some non-natural use of that land whatever precisely that may mean.
Neither of these features exists in the present case. I have already pointed out that nothing
escaped form the defendant’s premises, and, were it necessary to decide the point, I
should hesitate to hold that in these days and in an industrial community, it was non-
natural use of land to build a factory on it and conduct there the manufacture of
explosives. I could conceive it being said that to carry on the manufacture of explosives
in a crowded urban area was evidence of negligence, but there is no such case here and I
offer no opinion on the point. [Emphasis added]

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VICARIOUS LIABILITY

• Vicarious liability is a form of strict liability — in that a person is held liable for no fault of
his/her own
• However, in vicarious liability, it is one (who is the principal) that is held liable for the
negligence of another (the agent)
• As in, it usually results in relationships of “employer/employee”

• It is based on the doctrine of respondeat superior — “let the master answer”

• The provenance of this doctrine is ancient Rome, where it applied to slaves and has
been employed where the slave could not — him/herself — pay for the debts incurred
• At that point, the master was made to pay (hence, master/servant), but has since been
expanded through a series of cases

Jones v Hart (KB, 1698)

• FACTS: Mr. Hart was a pawnbroker, whose servant had taken in, but then lost, Mr. Jones’
goods. When the servant was unable to return the goods on Mr. Jones’ tender of money, the
latter sued Mr. Hart for trover (an action for the recovery of the value of property
wrongfully taken)
• ISSUE: Can Mr. Jones sue Mr. Hart to recover the goods?
• HELD: Yes
CHIEF JUSTICE HOLT: The action well lies in this case: If the servants of A, with his cart
run against another cart, wherein is a pipe of wine, and overturn the cart and spoil the
wine, an action lieth against A. So where a carter’s servant runs his cart over a boy, action
lies against the master for the damage done by this negligence: and so it is if a smith’s
man pricks a horse in shoeing the master is liable. For whoever employs another, is
answerable for him, and undertakes for his care to all that make use of him.

The act of a servant is the act of his master, where he acts by authority of the master.
[Emphasis added].

Ira S Bushey v United States (Court of Appeal, 2nd Circuit, 1968)

• FACTS: While the United States Coast Guard vessel Tamaroa was being overhauled in a
floating dry-dock (located in Brooklyn’s Gowanus Canal), a seaman (Lane) returning
inebriated from shore leave late at night turned some wheels on the dry-dock wall. He
opened valves that controlled the flooding of the tanks on one side of the dry-dock. Soon,
the ship leaned, slid off the blocks, and fell against the wall. Parts of the dry-dock sank, and
the ship partially did as well — fortunately without loss of life or personal injury.
• ISSUE: Whether the United States can be held responsible for actions of their employee
(Lane) when the actions are outside of the scope of their duties.
• HELD: United States liable, as the action of Lane was not outside the scope of his duties

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CHIEF JUSTICE FRIENDLY: We concur in the statement of Mr. Justice Rutledge in a case
involving violence injuring a fellow-worker, in this instance in the context of workmen’s
compensation:

Men do not discard their personal qualities when they go to work. Into the job they carry their
intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their
tendencies to carelessness and camaraderie, as well as emotional make-up. In bringing men
together, work brings these qualities together, causes frictions between them, creates
occasions for lapses into carelessness, and for fun-making and emotional flare-up. These
expressions of human nature are incidents inseparable from working together. They involve
risks of injury and these risks are inherent in the working environment. […]

Put another way, Lane's conduct was not so “unforeseeable” as to make it unfair to charge
the Government with responsibility. We agree with a leading treatise that “what is
reasonably foreseeable in this context [of respondeat superior] is quite a different thing
from the foreseeably unreasonable risk of harm that spells negligence. The foresight that
should impel the prudent man to take precautions is not the same measure as that by
which he should perceive the harm likely to flow from his long-run activity in spite of all
reasonable precautions on his own part. The proper test here bears far more resemblance
to that which limits liability for workmen's compensation than to the test for negligence.
The employer should be held to expect risks, to the public also, which arise out of and in
the course of his employment of labor” […] Here it was foreseeable that crew members
crossing the dry-dock might do damage, negligently or even intentionally, such as
pushing a Bushey employee or kicking property into the water. Moreover, the proclivity
of seamen to find solace for solitude by copious resort to the bottle while ashore has been
noted in opinions too numerous to warrant citation. Once all this is granted, it is
immaterial that Lane’s precise action was not to be foreseen […] Consequently, we can
no longer accept our past decisions that have refused to move beyond the Nelson rule,
[…] since they do not accord with modern understanding as to when it is fair for an
enterprise to disclaim the actions of its employees.

One can readily think of cases that fall on the other side of the line. If Lane had set fire to
the bar where he had been imbibing or had caused an accident on the street while
returning to the dry-dock, the Government would not be liable; the activities of the
“enterprise” do not reach into areas where the servant does not create risks different from
those attendant on the activities of the community in general […] We agree with the
district judge that if the seaman “upon returning to the dry-dock, recognized the Bushey
security guard as his wife's lover and shot him,” […] vicarious liability would not follow;
the incident would have related to the seaman’s domestic life, not to his seafaring activity,
[…] and it would have been the most unlikely happenstance that the confrontation with
the paramour occurred on a dry-dock rather than at the traditional spot. Here Lane had
come within the closed-off area where his ship lay, […] to occupy a berth to which the
Government insisted he have access […] and while his act is not readily explicable, at
least it was not shown to be due entirely to facets of his personal life. The risk that
seamen going and coming from the Tamaroa might cause damage to the dry-dock is
enough to make it fair that the enterprise bear the loss. It is not a fatal objection that the

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 rule we lay down lacks sharp contours; in the end, as Judge Andrews said in a related
context, “it is all a question [of expediency,] […] of fair judgment, always keeping in
mind the fact that we endeavor to make a rule in each case that will be practical and in
keeping with the general understanding of mankind […] [emphasis added]

• RATIO: An employer will be held liable under respondeat superior if the actions of the
employee arise out of the course of his employment

Bazley v Curry (SCC, 1999)

• FACTS: The Children’s Foundation is a non-profit organization. It operated two residential

care facilities for the treatment of emotionally troubled children between the ages of six
and twelve. As substitute parent, it practiced “total intervention” in all aspects of the lives
of the children it cared for. The Foundation authorized its employees to act as parent
figures for the children. It charged them to care for the children physically, mentally and
emotionally. The employees were to do everything a parent would do — from general
supervision to intimate duties like bathing and tucking in at bedtime
• The Foundation hired Mr. Curry — a pedophile — to work in its Vancouver home.
However, the Foundation did not know he was a pedophile. It checked and was told he
was a suitable employee. Into this environment, too, came the child Patrick Bazley,
young and emotionally vulnerable. Curry began a seduction. Over the months, step by
subtle step, bathing became sexual exploration; tucking in, in a darkened room became
sexual abuse
• Someone complained about Curry. The Foundation inquired and upon verifying that
Curry had abused a child in one of its homes, immediately discharged him. In 1992,
Curry was convicted of 19 counts of sexual abuse, two of which related to Bazley. 
Curry has since died.
• Bazley sued the Foundation for compensation for the injury he suffered while in its
care. The Foundation took the position that since it had committed no fault in hiring or
supervising Curry, it was not legally responsible for what he had done. The parties
stated a case to determine whether (assuming the appellant was not, in fact, negligent)
the appellant was nonetheless vicariously liable for its employee’s tortious conduct.
The chambers judge found that it was and the Court of Appeal dismissed the appeal
• ISSUE: Whether the Foundation is vicariously liable for its employee’s sexual assault of a
child in its care.
• HELD: Yes

CHIEF JUSTICE BEVERLEY MCLACHLIN: Both parties agree that the answer to this
question is governed by the Salmond test, which posits that employers are vicariously
liable for (1) employee acts authorized by the employer; or (2) unauthorized acts so
connected with authorized acts that they may be regarded as modes (albeit improper
modes) of doing an authorized act. Both parties also agree that we are here concerned
with the second branch of the test. They diverge, however, on what the second branch of
the test means. The Foundation says that its employee’s sexual assaults of Bazley were
not “modes” of doing an authorized act. Bazley, on the other hand, submits that the
assaults were a mode of performing authorized tasks, and that courts have often found

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employers vicariously liable for intentional wrongs of employees comparable to sexual
assault.

The problem is that it is often difficult to distinguish between an unauthorized “mode” of

performing an authorized act that attracts liability, and an entirely independent “act” that
does not. Unfortunately, the test provides no criterion on which to make this distinction. 
In many cases, like the present one, it is possible to characterize the tortious act either as
a mode of doing an authorized act (as the respondent would have us do), or as an
independent act altogether (as the appellants would suggest). […]

[PREVIOUS CASES]

Looking at these three general classes of cases in which employers have been held
vicariously liable for employees’ unauthorized torts, one sees a progression from
accidents, to accident-like intentional torts, to torts that bear no relationship to either 
agency-like conduct or accident. In search of a unifying principle, one asks what the three
classes of cases have in common. At first glance, it may seem little. Yet with the benefit
of hindsight it is possible to posit one common feature: in each case it can be said that
the employer’s enterprise had created the risk that produced the tortious act. The
language of  “furtherance of the employer’s aims” and the employer’s creation of  “a
situation of friction” may be seen as limited formulations of the concept of enterprise risk
that underlies the dishonest employee cases. The common theme resides in the idea that
where the employee’s conduct is closely tied to a risk that the employer’s enterprise has
placed in the community, the employer may justly be held vicariously liable for the
employee’s wrong. […]

[POLICY CONSIDERATIONS]

Vicarious liability has always been concerned with policy […] The view of early English
law that a master was responsible for all the wrongs of his servants (as well as his wife’s
and his children’s) represented a policy choice, however inarticulate, as to who should
bear the loss of wrongdoing and how best to deter it. The narrowing of vicarious
responsibility with the expansion of commerce and trade and the rise of industrialism also
represented a policy choice.  Indeed, it represented a compromise between two policies
— the social interest in furnishing an innocent tort victim with recourse against a
financially responsible defendant, and a concern not to foist undue burdens on business
enterprises […] The expansion of vicarious liability in the 20th century from
authorization-based liability to broader classes of ascription is doubtless driven by yet
other policy concerns. “[V]icarious liability cannot parade as a deduction from legalistic
premises, but should be frankly recognized as having its basis in a combination of policy
considerations” […]

In [Fleming’s] view, two fundamental concerns underlie the imposition of vicarious

liability: (1) provision of a just and practical remedy for the harm; and (2) deterrence of
future harm. While different formulations of the policy interests at stake may be made

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(for example, loss internalization is a hybrid of the two), I believe that these two ideas
usefully embrace the main policy considerations that have been advanced. […]

First and foremost is the concern to provide a just and practical remedy to people who
suffer as a consequence of wrongs perpetrated by an employee. Fleming expresses this
succinctly […] “a person who employs others to advance his own economic interest
should in fairness be placed under a corresponding liability for losses incurred in the
course of the enterprise”.  The idea that the person who introduces a risk incurs a duty to
those who may be injured lies at the heart of tort law. As Cardozo C J stated in Palsgraf
v.Long Island R Co […] “[t]he risk reasonably to be perceived defines the duty to be
obeyed, and risk imports relation; it is risk to another or to others within the range of
apprehension.” This principle of fairness applies to the employment enterprise and hence
to the issue of vicarious liability. While charitable enterprises may not employ people to
advance their economic interests, other factors, discussed below, make it fair that they
should bear the burden of providing a just and practical remedy for wrongs perpetrated by
their employees. This policy interest embraces a number of subsidiary goals. The first is
the goal of effective compensation. “One of the most important social goals served by
vicarious liability is victim compensation. Vicarious liability improves the chances that
the victim can recover the judgment from a solvent defendant.”  (B. Feldthusen,
“Vicarious Liability for Sexual Torts”, in Torts Tomorrow (1998), 221, at p. 224.)  Or to
quote Fleming, the master is “a more promising source of recompense than his servant
who is apt to be a man of straw.” […]

However, effective compensation must also be fair, in the sense that it must seem just to
place liability for the wrong on the employer. Vicarious liability is arguably fair in this
sense. The employer puts in the community an enterprise which carries with it certain
risks. When those risks materialize and cause injury to a member of the public despite the
employer’s reasonable efforts, it is fair that the person or organization that creates the
enterprise and hence the risk should bear the loss. This accords with the notion that it is
right and just that the person who creates a risk bear the loss when the risk ripens into
harm. While the fairness of this proposition is capable of standing alone, it is buttressed
by the fact that the employer is often in the best position to spread the losses through
mechanisms like insurance and higher prices, thus minimizing the dislocative effect of
the tort within society. “Vicarious liability has the broader function of transferring to the
enterprise itself the risks created by the activity performed by its agents” [London Drugs]
[…]

The second major policy consideration underlying vicarious liability is deterrence of

future harm. Fixing the employer with responsibility for the employee’s wrongful act,
even where the employer is not negligent, may have a deterrent effect. Employers are
often in a position to reduce accidents and intentional wrongs by efficient organization
and supervision. Failure to take such measures may not suffice to establish a case of
tortious negligence directly against the employer. Perhaps the harm cannot be shown to
have been foreseeable under negligence law. Perhaps the employer can avail itself of the
defense of compliance with the industry standard. Or perhaps the employer, while

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complying with the standard of reasonable care, was not as scrupulously diligent as it
might feasibly have been. […]

Underlying the cases holding employers vicariously liable for the unauthorized acts of
employees is the idea that employers may justly be held liable where the act falls within
the ambit of the risk that the employer’s enterprise creates or exacerbates. Similarly, the
policy purposes underlying the imposition of vicarious liability on employers are served
only where the wrong is so connected with the employment that it can be said that the
employer has introduced the risk of the wrong (and is thereby fairly and usefully charged
with its management and minimization). The question in each case is whether there is a
connection or nexus between the employment enterprise and that wrong that justifies
imposition of vicarious liability on the employer for the wrong, in terms of fair allocation
of the consequences of the risk and/or deterrence.

Where the risk is closely associated with the wrong that occurred, it seems just that the
entity that engages in the enterprise (and in many cases profits from it) should internalize
the full cost of operation, including potential torts. […]

The connection between the tort and the employment is broad. To say the employer’s
enterprise created or materially enhanced the risk of the tortious act is therefore different
from saying that a reasonable employer should have foreseen the harm in the traditional
negligence sense, making it liable for its own negligence.  As Fleming explains […]

Perhaps inevitably, the familiar notion of foreseeability can here be seen once more lurking in
the background, as undoubtedly one of the many relevant factors is the question of whether
the unauthorized act was a normal or expected incident of the employment.  But one must not
confuse the relevance of foreseeability in this sense with its usual function on a negligence
issue.  We are not here concerned with attributing fault to the master for failing to provide
against foreseeable harm (for example in consequence of employing an incompetent servant),
but with the measure of risks that may fairly be regarded as typical of the enterprise in
question.  The inquiry is directed not at foreseeability of risks from specific conduct, but at
foreseeability of the broad risks incident to a whole enterprise. […]

In summary, the test for vicarious liability for an employee’s sexual abuse of a client
should focus on whether the employer’s enterprise and empowerment of the employee
materially increased the risk of the sexual assault and hence the harm.  The test must not
be applied mechanically, but with a sensitive view to the policy considerations that justify
the imposition of vicarious liability — fair and efficient compensation for wrong and
deterrence. This requires trial judges to investigate the employee’s specific duties and
determine whether they gave rise to special opportunities for wrongdoing. Because of the
peculiar exercises of power and trust that pervade cases such as child abuse, special
attention should be paid to the existence of a power or dependency relationship, which on
its own often creates a considerable risk of wrongdoing. [Emphasis added]

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EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia (SCC, 2005)

• FACTS: The appellant attended a residential school for First Nations children run by the
respondent Order of the Oblates of Mary Immaculate in the Province of British Columbia
on Meares Island, British Columbia. In the years 1957 to 1962, he suffered sexual abuse at
the hands of a lay employee, Martin Saxey, also of First Nations origin, who worked in the
school bakery and operated the school motorboat.
• The appellant began attending the school at the age of six, on 18 September 1956. He
was a student there until June of 1965
• At the relevant period, the educational and social functions of the school were under
the direction of the respondent Oblates (including priests and lay brothers), assisted by
different orders of nuns from time to time. While the direct care of the children and the
educational functions were performed by religious personnel, the maintenance services
and physical operation of the school were in the hands of First Nations staff, mostly
recruited from adult relatives of the students.
• Students were not allowed to be in or about the staff quarters. Nor were they supposed
to be in the bakery because hot appliances and dough-making machinery could present
a hazard. Despite the rules, the records showed, and the appellant testified, that on
occasion children did work in the kitchen and bakery (in part as “practical training”)
during the time of Saxey’s tenure as baker. The appellant testified that he never went in
the bakery.
• Saxey resided upstairs in a building located on the school grounds. Some downstairs
residential rooms were occupied by relatives of the appellant. The appellant testified
that around 1957, when he was in his second year at the school, Saxey began luring
him to his room by promising to give him candy. He said that when he went up to the
room he was sexually assaulted by Saxey. He testified that for the next four or five
years Saxey continued to lure him to his room with the promise of candy and
performed numerous sexual assaults upon him. The appellant testified that he went with
Saxey because he felt threatened. He did not at the time bring Saxey’s misconduct to
the attention of anyone at the school
• I SSUE : Whether the Order of the Oblates of Mary Immaculate in the Province of British
Columbia is vicariously liable for the misconduct of Mr. Saxey.
• HELD: No

JUSTICE BINNIE: The Court in Bazley did not dispute the emphasis placed by the Salmond
test on looking at what the employee was authorized to do, but insisted that it be placed in
the larger context of the employer’s enterprise and the risk that the enterprise has
introduced into the community. Thus, McLachlin J wrote that “[f]irst and foremost is the
concern to provide a just and practical remedy” (para. 30), but to be “just” is to require
that “[a] wrong that is only coincidentally linked to the activity of the employer and
duties of the employee cannot justify the imposition of vicarious liability on the
employer.” […]

Therefore, the appellant is right to say that the connection has to be made between the
tort and the risk created by the enterprise, but this is not the end of the matter. The nature
of the “risk created by the enterprise” must be considered in relation to the wrong done by

© Sakif Alam 14
Saxey to the appellant. It therefore calls for an examination of the job-created power and
duties given to Saxey, recognizing of course that those powers and duties are discharged
in a particular residential school environment. […]

The trial judge acknowledged that the respondent had taken precautions to prevent
improper contact between the students and the lay employees. Although Saxey’s living
quarters were on a part of the grounds to which the children had access, the staff quarters
were segregated from the school dormitories. Further, the appellant himself testified that
the students were not allowed to enter the staff living quarters. The respondent thus
imposed a degree of geographic separation. With respect to Saxey’s motorboat
responsibilities, school policy required a religious brother (or equivalent) to travel on the
boat when boys were present. If the school can be shown to have been negligent in
supervising adherence to these and similar instructions, thereby creating a risk which led
directly to the commission of the sexual assaults on the appellant, that would nourish the
claim in relation to direct liability. At present, however, we are dealing only with
vicarious liability.

As it stands, the evidence is that Saxey did not have authority to insinuate himself into
the intimate life of the appellant or any of the other students except his own children and
grandchildren. […]

I therefore turn to the “five factors” listed in Bazley to consider in light of the precedents
whether the strength of the “connection between what the employer was asking the
employee to do . . . and the wrongful act” (Bazley, at para. 42), was sufficient to impose
vicarious liability:

(1) The respondent provided Saxey with the opportunity to come into contact with
the children.  Opportunity will often be a question of degree.  “As the opportunity
for abuse becomes greater, so the risk of harm increases” (Bazley, at para. 43). 
The review of previously decided cases shows that opportunity in this case lies at
the low end of significance. As put in Bazley, “[i]f an employee is permitted or
required to be with children for brief periods of time, there may be a small risk of
such harm — perhaps not much greater than if the employee were a
stranger” (para. 43). Here, Saxey was not “permitted or required” to be with the
children at all, apart from trips in the motorboat which were supervised by one of
the religious brothers or equivalent and occasionally in the bakery.

(2) The wrongful acts had nothing to do with furthering the respondent’s aims. No
one disputes that Saxey’s conduct was abhorrent and in direct opposition to the
Oblates’ aims.

(3) While a degree of intimacy with staff is inherent in any residential school, such
intimacy did not involve Saxey, who was expected to devote himself to baking,
maintenance and driving the motorboat. Saxey’s duties required no significant
contact with the students, and his quarters where the sexual abuse took place was
located in an area off limits to students.

© Sakif Alam 15
 (4) The respondent did not confer any power on Saxey in relation to the appellant.
Despite the loose structure of the school, as discussed by the trial judge, Saxey’s
position was not one involving regular or meaningful contact with the students.
Of course, as the trial judge pointed out, the very fact that Saxey was an adult in a
children’s school conferred a certain status, but to find that Saxey’s status as an
“adult” in the school was sufficient to attract vicarious liability would in practice
cross the line into making the employer an “involuntary insurer” (Bazley, at para.
36).

(5) The students in any residential school are vulnerable and require protection, but it
is the nature of a residential institution rather than the power conferred by the
respondent on Saxey that fed the vulnerability. In Bazley, at para. 42, the Court
said that “[i]t must be possible to say that the employer significantly increased the
risk of harm by putting the employee in his or her position and requiring him to
perform the assigned tasks” (emphasis added; emphasis in original deleted). 
Such a statement cannot fairly be said of the respondent employer in this case.
[…]

[M]my view […] is that while the residential school setting and the nature of the
discipline at the school clearly contributed to the vulnerability of the children to abuse,
there was no finding of a “strong connection” between the particulars of Saxey’s
employment and the outrages he committed by luring the appellant to his private quarters
as is required by our jurisprudence. The fact that Saxey was permitted on occasion to ask
children to do chores, and that children were inevitably in occasional contact with him, is
not enough. The employment of Saxey as a baker, boat driver and odd-job man did not
put him in a position of power, trust or intimacy with respect to the children. His job did
not include regular or private contact with the children. He was not encouraged or
required to develop any sort of personal relationship with the children.  His role did not
include supervising any intimate activities. I conclude that the Court of Appeal was
correct that while the employment relationship in this case provided Saxey with the
opportunity to commit the wrongful acts, his assigned role in relation to the students fell
short of what is required to attract vicarious liability. An analysis of general “operational
characteristics” is more properly undertaken in relation to the claim of direct liability.
[Emphasis added]

COMMENTS

• There are three exceptions to vicarious liability. As in, in certain situations, liability is
ascribed directly on the employer — as opposed to the employer through the employee

1. Negligence of the employer in selecting, instructing, or supervising the contractor;

2. Non-delegable duties of the employer, arising out of some relation toward the public
or the particular plaintiff; and
3. Work which is specially, peculiarly, or “inherently” dangerous

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