Date: Sat, 22 Oct 2005 11:07:36 +1000

From: Neil Foster

Subject: Two employers vicarious liability apportionment contribution

Dear Colleagues;

I'm not aware that there ever was a "charitable immunity" doctrine in Australian law so I won't comment on that. But I'd be grateful for others' comments on the "two employer" aspect of this decision. I haven't had a chance to read the whole judgement but I notice this issue is discussed in Blackwater at paras [36]-[38] in what to me is an astonishingly cavalier way- a reference back to Atiyah's book from 1967 (!) is used to simply declare that there is no problem with a person having two employers. I can just believe it if we are talking about someone engaged by partners in a firm, where there is a true "partnership" in the sense recognised by the law for many years of people jointly pursuing a profit. But to then slide over and say this applies here because in some loose sense the Church and Canada were engaged in a "partnership" in caring for children seems a bit rich. After all, at least the Eng CA in Viasystems thought it necessary to analyse the previous law in some detail before making what they seemed to acknowledge to be a change.

Of course it is entirely likely that I am completely ignorant of developments in the common law in Canada which have previously seen an acceptance of the "two employers" view. I'd be grateful if anyone can enlighten me if this is so.

Also maybe I'm just feeling particularly parochial but can anyone suggest why in a decision which seems from the headnote to be dealing with the issue of non-delegable duty of care for sexual assault of children in care does my search facility reveal not a single reference to the High Court of Australia decision in Lepore v NSW?

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> DAVID CHEIFETZ 22/10/05 6:38 >>>

It'll reappear cloaked within the Jacobi limitation on Bazely. Of course, that means that somebody will have to figure out some way to meaningfully state the limitation. Remember what the majority said in Jacobi - I'll quote from the headnote - "Given the weakness of the policy justification for the expansion of vicarious liability to non-profit organizations, the respondent is entitled to insist that the requirement of a "strong connection" between the enterprise risk and the sexual assault be applied with serious rigour." That's where the argument will be made: on the question of what's needed for a strong connection where the defendant is a charity. The defendant's lawyer will argue: take into account the fact that the defendant is a charity as one of the factors relevant in the decision as to what's enough to satisfy the requirement of "strong connection ... applied with serious rigour". If we make the "strong connection" threshold high enough, we've reintroduced the charitable immunity doctrine.

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