Date: Fri, 8 Feb 2008 17:40

From: Jason Neyers

Subject: Vicarious Liability of the Crown for Police

Neil:

Does s. 21 say that the officer committed no tort? The more natural reading seems to me to be that he/she is not liable for damages for the tort committed ("No action for damages lies against a police officer ...") such that the two sections actually work together quite well.

Cheers,

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

Neil Foster wrote:

Dear Jason and others

Interesting. Clearly the right result and I suppose you could say achieved with a minimum of verbiage (unlike some other Commonwealth final courts), but two things particularly stood out.

(1) The Police Act 1996 cited at the end makes the Government liable for "torts" committed by police. It hence adopts the "servant's tort" theory of vicarious liability. But s 21 seems to mean that the police officer in question here committed no tort because he had a statutory liability. So you have to interpret s 11 so it operates as if it said "actions that would be torts if s 21 did not operate". That is effectively what LeBel J does in para [9] by adopting the view that "AGBC's liability was the liability that would have been imposed on the officer were it not for the immunity granted in s 21". It would be nice if the statute had made that clear. It would be nice if the SCC had made it clearer this was an issue.

(2) The question of whether someone who is vicariously liable for the torts of another can restrict the extent of their liability by reference to their own personal fault came up in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 1 All ER 97 and the attempt there was rejected. That is not what the AGBC was trying to do here - here he was trying to restrict his liability to the specific proportion of responsibility allocated to the police officer (10%). I suppose I could discover this by reading the lower court judgments, but what led him to think this could possibly succeed? Unless you have a statutory "proportionate liability" regime (as we do now in NSW for property damage and economic loss under Part 4 of the Civil Liability Act 2002) one assumes the usual common law rules of "solidary liability" will apply, and there seems no reason to suppose that the presence of vicarious liability makes a difference. Again, it would have been nice to see the SCC at least canvass the arguments here.

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