O’REGAN J that the courts have traditionally viewed the common-law approach to vicarious liability to raise a factual question; and secondly, restates the principle that the application of law to facts, in itself, does not ordinarily raise a constitutional issue. For it to do so, some separate constitutional issue beyond the factual question must be raised. In that case, the appellant had sought to rely erroneously on the property clause, an argument the Court dismissed, but did not argue that the common-law rule of vicarious liability needed reconsideration. It was not necessary therefore for this Court to consider in Phoebus Apollo whether the principle that the application of the rule of vicarious liability concerned only a question of fact needed to be reconsidered in the light of the demands of the Constitution. In this case, on the other hand, the sharp issue of the constitutionality of the common-law rule is in issue. The question of whether the application of the principles of vicarious liability to a set of facts can properly be termed purely factual is a matter to which I now turn. The application of the common-law principles of vicarious liability — purely a factual question? [21] The common-law principles of vicarious liability hold an employer liable for the delicts committed by its employees where the employees are acting in the course and scope of their duty as employees. The principles ascribe liability to an employer where its employees have committed a wrong but where the employer is not at fault. As such, the principles are at odds with a basic norm of our society that liability for harm should rest on fault, whether in the form of negligence or intent. This tension between our ordinary rules for delictual liability and the special case of vicarious 15