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Vicarious Liability and Sexual Assault Claims

The first rule in personal injury law is to make sure that you sue a Defendant with deep pockets. That means the Plaintiff and his/her personal injury lawyer need to be satisfied that the Defendant has the ability to pay out on a potential settlement or judgment. If the Defendant cannot pay, the Plaintiff will not be compensated despite winning the case.

You can’t get blood from a stone. Nor can a personal injury lawyer recover compensation from an impecunious Defendant.

This is a very important concept.

There is certainly vindication on behalf of an injured Plaintiff in securing a judgment against a Defendant who has wronged him/her. The feeling of winning, justice, or simply closure are very important feelings.

But these feelings cost money.

If the Plaintiff has deep pockets, and doesn’t mind spending thousands of dollars in legal fees without a prospect of recovery in order to secure a Judgment; then all the power to that Plaintiff.

But these wealthy Plaintiffs who are prepared to spend the type of money required to secure a judgment in a personal injury action are few and far between.

Most Plaintiffs don’t have deep pockets to pay a lawyer’s hourly rates. On top of that; most lawyers won’t take on cases on a contingency fee basis on a “winnable” case if there is no realistic prospect of recovery.

This concept dovetails nicely in to the realm of sexual assault claims.

Being the victim of a sexual assault, or any assault for that matter is a terrible thing. The Plaintiff certainly deserves all of the support, care, treatment and compensation available to him/her at law.

But there is often no insurance underlying sexual assault claims.

Insurance companies don’t insure criminal acts of their employees, agents, servants, contractors etc. The same way that insurance companies don’t insure arson claims for fire loss. There is no readily available insurance on the planet for every day people which covers damages related to criminal activities of others.

Recently, the Honourable Justice D. Salmers extended vicarious liability to a school board for the sexual abuse by one of its teachers on a student.

This is a very important decision because it extends the school board’s insurance coverage for the student’s sexual assault claim.

It’s likely that had vicarious liability not have been found in this case, that the Plaintiff would have won the case against the teacher; but recovered nothing on account of the retired teacher’s inability to pay out on the $500,000+ judgement against him.linkedin-2-300x300

But just because the teacher commits a criminal act, does not mean that the vicarious liability of the school board automatically kicks in. There must be something more to it which attaches the school board to the claim.

Examples of what that something more is will vary from case to case.

Here are a few good examples which Goldfinger Injury Lawyers have used in the past to ensure that the insurance policy of the large employer kicks in so that vicarious liability applies and that an award for damages will get paid out on a claim:

  • The employer failed to screen or properly screen its employee upon hiring. Hiring a convicted pedophile to work alone and closely with youth is not safe. Hiring a man who has a history of violence against women, to work with women in along and in close quarters is also not the best idea. There is nothing wrong with hiring someone who has a past criminal record. But the employer needs to conduct their proper searches and have proper safety protocols to ensure for the safety of the people whom they serve.
  • The employer knew or ought to have known about the criminal behaviour and either did not about it; created an atmosphere which enabled to criminal behaviour; or simply covered it up.
  • The employer failed to discipline, or to properly discipline the offending employee for their past insubordination.
  • The employer failed to supervise, or to properly supervise the offending employee, thereby creating an environment which facilitated the criminal activity in question
  • The employer allowed the employee to be in close quarters/alone with the victim knowing that the employee was NOT allowed to be alone with anyone whom they were there to serve

Here are some more specific examples.

A security guard with a criminal past of assaulting women from 10 years prior is hired as a security guard at a large Toronto Hospital. The security guard as access to every area of the hospital; without any restriction. The security guard works the mental health unit at the hospital. On a smoke break, the security guard interacts with a mental health patient, who was allowed unsupervised to be outside of the hospital for her cigarette. The security guard and the patient get friendly and begin passing notes and having regular smoke meetings outside. After one of those meetings, the security guard (who was off duty at the time and not in uniform), takes the patient (who is in full hospital gown) to see the restricted helipad on the roof, and then to an off access area of the hospital which had a lounge and library. The security guard is using the hospital for his own personal use in an attempt to seduce the mental health patient. The mental health patient is allowed to roam the hospital with a plain closed man when she was supposed to be restricted to her ward. The security guard rapes the patient in the lounge.

In this case, vicarious liability was found to have attached to the hospital for a variety of reasons. The importance of getting vicarious liability of the hospital in that case was very important. In that example, the security guard was convicted of multiple counts of sexual assault and rape and was sent to jail. He did not have any assets. He rented his apartment and lived pay cheque to pay cheque. He had zero assets to satisfy any civil judgment. His remaining dollars were likely spent on lawyers to defend the criminal claim against him. Securing a judgment against the security guard was only worth as much as the paper upon which the judgment is written.


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