McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
2. legal substitution: The acts of the employee/agent are an extension of the employer/principal’s acts (a legal fiction).
This has also lost popularity: it is based on reintroducing fault.
3. protection of victims: an attempt to provide the victim with a defendant who is solvent (and usually insured)
4. If the employer/principal takes the benefits of the enterprise, he or she should also be responsible for whatever injury it causes.
5. The enterprise must bear the consequences of any risks it creates.
This is the most current view.
There is no consensus as to which justification is proper; some argue that all of them are relevant.
Ira S. Bushey v. United States, 398 F2d 167 (2d Cir., 1968). (CB1p331)
A coast guard sailor named Lane returned to his ship drunk late one night, and, as he approached the ship, impulsively turned some valves on the drydock. Water flooded in, the drydock sank, and the ship fell off the blocks and was damaged. Bushey, the owner of the drydock, sued the government for vicarious liability. The government argued that Lane’s actions were not within the scope of his employment.
Is it unfair to charge an employer with liability for a not-really-foreseeable reckless act by an employee outside of his work?
No; the appeal was dismissed.
The judge found that, although the sailor’s act took place outside of the scope of his work and was not exactly foreseeable, it was part of a risk created by his employment. There is a higher standard of foreseeability for vicarious liability than for negligence, because employers must be prepared to deal with risks that their activities create in the long run (i.e., drunken sailors are likely to cause damage at some point). The judge considered the policy reasons for respondeat superior (e.g., “deep pockets”), but concluded that these were not the primary reasons for vicarious liability.
common law (tort of vicarious liability) requirements:
civil law (a. 1463) requirements:
1. relationship employer-employee
2. fault of employee
3. in the course of employment
1. relationship principal-agent (or servant)
2. fault of agent
3. in the performance of duties
presumption of responsibility
In civil law, the current test is based on the idea of subordination: The principal is empowered to give orders to the agent.
Quebec Asbestos Corp. v. Couture,  S.C.R. 166. (CB1p335)
Couture supervised blasting at a mine run by Quebec Asbestos Corporation. He hired, trained, directed and paid his workers; his method of working was up to him. He was paid by the cartload and he was liable if he failed to provide the mill with enough stones. Couture was seriously injured in an explosion, presumably caused by an unexploded charge left in a stone. Couture sued Quebec Asbestos as a principal liable for the actions of an agent.
Was Couture an employee of Quebec Asbestos, such that Quebec Asbestos should be responsible for his fault? (Mainly a question of fact, it appears.)
No. The appeal was allowed.
Couture was an independent contractor, sufficiently free to choose his own methods