O’REGAN J
foundation had operated a children’s residential care facility and the employee had
been employed as a “substitute parent”. The employee had sexually abused the
children in his care. The Court held that –
“[t]he opportunity for intimate private control and the parental relationship and power
required by the terms of employment created the special environment that nurtured
and brought to fruition [the employee’s] sexual abuse. The employer’s enterprise
created and fostered the risk that led to the ultimate harm. The abuse was not a mere
accident of time and place, but the product of the special relationship of intimacy and
respect the employer fostered, as well as the special opportunities for exploitation of
that relationship it furnished. Indeed, it is difficult to imagine a job with a greater risk
for child sexual abuse. This is not to suggest that future cases must rise to the same
level to impose vicarious liability. Fairness and the need for deterrence in this critical
area of human conduct – the care of vulnerable children – suggest that as between the
Foundation that created and managed the risk and the innocent victim, the Foundation
should bear the loss.”50
[40]
In Jacobi, however, which also concerned the vicarious liability of an employer
for the sexual abuse of children by an employee, the Court split and a majority held
that on the test set in Bazley, the employer was not liable on the facts of that case. In
that case, an employee of a non-profit organisation which organised group recreational
facilities for children had abused children by enticing them outside of club activities
outside of club hours to his home where he had abused them. The majority of the
Court held that the activities of the employer were not sufficiently connected to the
wrongs performed by the employee to result in the vicarious liability of the employer.
50
Id at para 58.
29
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