Date: Mon, 24 Oct 2005 11:33:57 -0400

From: Jason Neyers

Subject: Two employers vicarious liability apportionment contribution

Dear Colleagues:

I have just scanned over the headnote but I have some questions for those on the list. In a true partnership situation who is the employer (Any traditional cases would be much appreciated)? Before modern civil procedure innovations, would one sue the partner who did the most supervision? If that is the case, then wouldn't that one partner have a right of indemnity from his other partners (who are his mutual agents) if the hiring had been in the course of the partner's agency? If that seems correct, then the issue of two people being vicariously liable seems something on a non-innovation since it would have been always the rule.

The more innovative part of decision then seems to be the finding of partnership between entities that are not people jointly pursuing a profit (i.e. are Charities). Does anyone know of any case law on that issue?

Cheers,

Neil Foster wrote:

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?

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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