O’REGAN J
“The school was responsible for the care and welfare of the boys. It entrusted that
responsibility to the warden.
He was employed to discharge the school’s
responsibility to the boys. For this purpose the school entrusted them to his care. He
did not merely take advantage of the opportunity which employment at a residential
school gave him. He abused the special position in which the school had placed him
to enable it to discharge its own responsibilities, with the result that the assaults were
committed by the very employee to whom the school had entrusted the care of the
boys. . . . I would hold the school liable.”46
[37]
In each of their speeches, the Law Lords held therefore that although the
conduct of the warden had been clearly a gross deviation, the conduct itself was
sufficiently closely related to the obligations borne by the employer in respect of the
children who were abused to render the employer liable.
[38]
Similar issues have arisen in Canada and were considered by the Supreme
Court in two judgments handed down on the same day, Bazley v Curry47 and Jacobi v
Griffiths.48 Both cases concerned the vicarious liability of employers for the sexual
assaults of their employees on children within their care. In a comprehensive and
careful review not only of the existing legal principles, but also of the policy that
underlies the doctrine of vicarious liability, McLachlin J in Bazley’s case concluded
gave the servant the opportunity to do what he did without more, there will be no vicarious
liability, hence the use by Salmond and in the Scottish and some other authorities of the word
‘connection’ to indicate something which is not a casual coincidence but has the requisite
relationship to the employment of the tortfeasor (servant) by his employer”. (At para 59.)
46
Id at para 82.
47
Above n 22.
48
Above n 22.
27
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