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Date:
Sat, 9 Oct 2004 12:52:22 +1000
From:
Harold Luntz
Subject:
Vicarious liability for intentional torts
In
relation to Robert's statement that "you cannot bail boys", people
may be amused by the similar view of McPherson J when one of the
three cases that came before the High Court of Australia in Lepore
was in the Queensland CA, Rich
v Queensland (2001) Aust Torts Reps 81-626. He referred
to what was said in the NSW
CA in Lepore and commented:
Mason
P also referred to the decision in Morris v C W Martin & Sons
Ltd [1966] 1 QB 716, in which the defendant bailee of a fur
coat was held liable to the plaintiff bailor for theft of the
coat by a servant of an authorised sub-bailee to whom it had been
delivered. Commenting on the decision of the English Court of
Appeal in that case, Mason P said that, if Morris v C W Martin
& Sons Ltd was good law in Australia, and if the State was
not liable in Lepore v New South Wales, it must follow
that the law imposes a higher responsibility on a bailee for looking
after a fur coat than it does on a school authority for looking
after a child. Quite possibly it does. Because children in so
many ways obviously differ from fur coats, they attract a different
set of legal norms. For one thing, they cannot be protected from
injury by the simple expedient of locking them away in a safe
place. That is not why they are sent to school. For another, the
plaintiffs in this case were not stolen or kidnapped by (on this
analogy) a servant of the States sub-bailor [the teacher]. It
may perhaps be open to question whether what happened to them
here necessarily amounted in law to an act of conversion. But,
in any event, conversion is a wrong done to the bailor or other
person entitled to immediate possession, who, by analogy with
a chattel, would presumably be the plaintiffs parents. The parents
are not the ones who have brought this action for damages for
the harm done to the plaintiffs (at [19]).
However,
despite these differences, I agree that if a school entrusts the
care of children to a teacher, who sexually abuses them, the school
should be vicariously liable for the teacher's acts. But, as Lister
said, not for the acts of a gardener whose responsibility is to
care for the garden, not the children.
Harold.
At
07:37 PM 8/10/2004 +0100, Robert Stevens wrote:
1)
For myself, I have always thought that in Morris v Martin
the non-delegable duty arising from the bailment explains the result.
If the damage had been caused by an independent contractor the result
should be the same. The claim is in bailment. You cannot bail boys.
I have some sympathy with the idea that every time I have assumed
that care for you will be taken I will be liable if it is not, even
if the person who is careless is not me nor anyone I am vicariously
liable for. That explanation of Lister
is not adopted in Bernard
or Mattis.
2)
On Bernard,
the Salmond test is pretty open textured and I can see how, at a
pinch, a policeman's shouting 'police' and shooting you whilst he
is off duty can be seen as a "wrongful mode of an authorised act."
A stretch though.
3)
On Mattis,
the CA hold the club VL so why the 'other way'?
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