An inebriated woman calls a taxi. She enters the cab and is sexually assaulted. Should the taxi cab company be held strictly liable for these damages suffered by her?
In the absence of negligence, as was the case in this instance, the Ontario Superior Court, on a summary judgment motion, refused to apply the concept of vicarious liability to hold the employer 1 strictly responsible for the intentional act of wrongdoing of its driver. 2
Indeed, the Court of Appeal agreed. Leave to appeal was denied.
The principal of vicarious liability holds the employer legally responsible for the wrongdoings of its employees. It is a difficult concept to show successfully, as the questioned conduct must be closely and materially connected to the business of the employer. It is even more difficult to apply when the wrongdoing is intentional.
Does this make sense ?
Debating the legal correctness of these decisions and whether the application of Bazley principles was right or wrong will not change the law.
What of the moral correctness? Should a vulnerable person, such as in this case, an intoxicated woman or a child or an elderly person, not have a viable remedy in the event of an intentional wrongdoing of the driver when the passenger has been locked into the car without means of escape?
Somehow it just does not seem right that such persons would be without a meaningful remedy.
In the cited case, the company accepted that the relationship was one of employment. Uber and similar app services are not even close to making this admission which is normally a building block to the finding of vicarious liability.
What of policy considerations?
The business reality is that the taxi cabs of the world will insure the liability and hence spread the risk. There will some additional costs to be absorbed by the passenger, certainly. Is it worth the additional 50 cents a ride to allow for this remedy?
Error Made at First Base
The irony is that the plaintiff missed a fundamental argument. There was no claim made in contract. There are precedent cases establishing an implied term of a contract between the passenger and a “common carrier” that the transporting company must insure safe passage to the passenger. Too bad.