Primer on Vicarious Liability in Canada
Vicarious liability is the imposition of tort liability on a party who, while related to the negligent party through a specific relationship, did not actually commit the negligent act.1 Vicarious liability commonly arises with respect to the employer-employee relationship, wherein it has been held that employers can be held vicariously liable for the acts of their employees.
The test for establishing vicarious liability has been well defined by the courts. Firstly, an employment relationship must have existed between the negligent person and the facility or employer. Secondly, the employee must have been acting within the scope of his or her employment. In other words, a plaintiff need not prove that the employer authorized the act complained of, but merely that it was done while the employee was carrying on the business of their employer.2 If the employee is acting a manner that so clearly falls outside of the scope of what it is that they are employed to do, then this portion of the test will not be met.
In assessing whether to make a finding of vicarious liability, the court will consider a number of factors. These factors include:
- the level of control that the employer had over the employee,
- any agreements which describe the relationship between the parties, and
- any requirements in place with respect to the employee's obligation to follow the employer's policies and procedures.
With few exceptions, an employer is generally not vicariously liable for the acts of an independent contractor. In Canada, many attending physicians in hospitals are independent contractors; therefore any negligence on the part of an independent attending physician would not vicariously extend to the hospital. The finding as to whether a particular person is an employee or an independent contractor is therefore of paramount importance and, in Ontario, is dealt with by way of Application to the Workplace Safety and Insurance Board (commonly referred to as the "WSIB").
Interestingly, when an independent attending physician is conducting an operation, the nursing staff under their supervision are usually considered to be outside the control of the hospital, and therefore not acting as servants of the hospital for the duration of the operation. In a 1909 English case which is still frequently cited, Hillyer v St Bartholomew's Hospital, the hospital was found not to be vicariously liable for negligent acts of either the physician or of the nurses who were under his supervision.3
...the injured party may recover the entirety of their damages from any individual defendant, notwithstanding their respective degree of fault. |
Joint and Several Liability
Ontario's Negligence Act4 (the "Act") makes clear that in the event that more than one tortfeasor causes or contributes and an indivisible injury, the injured party may recover the entirety of their damages from any individual defendant, notwithstanding their respective degree of fault. Section 1 of the Act states:
Extent of liability, remedy over
1. Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent. R.S.O. 1990, c. N.1, s. 1.
In circumstances where not all defendants are insured, either adequately or at all, a plaintiff can be expected to seek recovery from the defendant that has adequate insurance coverage to satisfy the damages award, as opposed to seeking recovery from another defendant personally. The adequately insured defendant would then have to seek contribution from any other negligent defendants based on their respective degrees of fault. Given that regulated allied healthcare professionals, as well as the facilities that employ them, are generally adequately insured, it is important that they verify that their colleagues or other members of their care teams for whom they may be found vicariously liable are also adequately insured.
Collaborative Care Concerns
The goal of collaborative health is to have "the right workers with the right skills in the right place doing the right things" in order to improve health outcomes.5 Given the complexity of certain procedures and the number of allied healthcare professionals that may be involved in the care of a certain individual, there is a risk that tasks could fall between the cracks if healthcare professionals do not work to ensure proper communication and delineation of roles. While from a policy standpoint there is a view that patient care is a shared responsibility between all of the professionals within the collaborative care team, this is not necessarily so in the legal context. From a legal standpoint, it is important to outline who is responsible if a patient is injured or if something goes wrong.
Employers are typically responsible for the acts of their employees if the negligent employee was acting within the scope of their employment. |
General principles of vicarious liability in Canada apply in the healthcare field. Employers are typically responsible for the acts of their employees if the negligent employee was acting within the scope of their employment. This principle applies equally to hospitals that employ hundreds of health professionals and also to small clinics.
Case Study: Vicarious Liability in Hospitals
As with most areas of a hospital, health professionals in maternity wards must be prepared for rapid changes in patient conditions. In negligent perinatal care cases, doctors, nurses, midwives, and the hospitals that employ them are often sued for causing what can sometimes be catastrophic injuries to the mother and the newborn. In Steineback (Litigation Guardian of) v Fraser Health Authority, a pregnant woman delivered a baby who suffered from cerebral palsy resulting from a complete placental abruption right before the birth.6 The court found that the nurse failed to assess fetal heart rate and the doctor failed to call for an obstetrical consult before the delivery. The court apportioned 60% liability to the doctor, who was not an employee of the hospital, and 40% to the nurse and her employer. The court awarded $321,000 in general damages, $100,000 in special damages and home adaptation, $100,000 for the "in trust" claim, and $1,065,000 for loss of future earning capacity/loss of future earnings.
The vicarious liability of the hospital did not appear to be in dispute as the court spent no time analyzing same. One could infer that the starting point is to assume that a healthcare professional employee of a hospital, acting within the course and scope of their employment, will lead to a finding of vicarious liability as against their employer.
The doctor who was found to be 60% liable appealed the trial decision claiming that there was no causal link between the doctor's negligence and the injury since if the nurse had not been independently negligent and had called the doctor to the delivery room earlier, the doctor would have immediately delivered the infant. The British Columbia Court of Appeal dismissed the doctor's appeal but varied the quantum of the cost award. The court found that the doctor's argument failed to recognize the causal implications of her failure to properly assess the patient and properly direct the nursing staff. The court varied the cost award by lowering the award for loss of future earning capacity/loss of future earnings from $1,065,000 to $750,000. An application for leave to appeal to the Supreme Court of Canada was refused.
Case Study: Vicarious Liability in Private Clinics
Outside of hospitals, doctors frequently operate medical clinics and hire allied health professionals to provide a variety of health services. This was in the case in the Supreme Court of Canada decision in Guaranty Trust Co. of Canada v Mall Medical Group in which a patient re-fractured her knee-cap when she was undergoing treatment by a remedial gymnast.7 The remedial gymnast was an employee of Dr. Bruser and the Mall Medical Group. As was articulated by the Supreme Court of Canada, since no negligence was asserted against Dr. Bruser, a finding of liability as against Dr. Bruser and Mall Medical Group would be solely dependent on a finding that their employee, the remedial gymnast, was negligent. On finding that the remedial gymnast was negligent, liability was vicariously extended to his employer.
Employers will be vicariously liable for the negligent acts of all kinds of employees:
In T. (A) (Next Friend of) v Mah
A physician employer was held vicariously liable for a receptionist whose failure to accurately record an appointment date eventually lead to personal injuries of a mother and her newborn infant.8 The mother missed an appointment after the receptionist told her the wrong date, the physician did not follow up after the missed appointment, and the physician later tried inducing vaginal delivery when caesarian delivery was appropriate. Ultimately, vaginal delivery was not possible; the baby was born by emergency caesarian and sustained permanent and severe brain injury.
In Downey v Rothwell
A partnership carrying on a practice as Dr. W. O. Rothwell and Associates was liable for the negligence of a nurse employed by the practice.9 The nurse led the epileptic plaintiff to an examination room, placed her on an examination table, and left her alone. The plaintiff had a seizure, fell from the table onto the tile floor, and sustained personal injuries. The partners of the medical practice were vicariously jointly and severally liable for the nurses' negligence.
...the fact that an employee is insured does not nullify the usual principle of vicarious liability. |
While it is advisable for employers to ensure that their health professionals carry insurance, it is not always required as the fact that an employee is insured does not nullify the usual principle of vicarious liability.10 In Guerrero v Trillium Dental Centre, the plaintiff was allegedly harmed during a teeth whitening procedure conducted by a dental hygienist. The court was "not persuaded that the mere fact that the employee has insurance, the scope of which is unknown, should nullify the usual principle that employers may be liable to third parties for the wrongdoing of their employees occurring within the scope of their employment." As discussed above, the existence of additional insurance policies, and collection of damages awards from those policies, would be the responsibility of the defendants as between each other and only once the plaintiff has been fully compensated based on the principle of joint and several liability.
Conclusion
Where there is an employer-employee relationship and an employee is acting within the scope of his or her employment, the employer will be held vicariously liable for the tortious acts of its employees. In the healthcare field, this commonly arises in the context of medical malpractice claims. While employee liability insurance coverage will not shield an employer from vicarious liability, it is nevertheless wise to ensure all allied health professionals are adequately insured to safeguard against situations in which defendants are under-insured. This is especially important in smaller practices. In the context of hospitals, attending physicians are often independent contractors. This may limit a hospital's vicarious liability exposure. Notably, not all attending physicians are independent contractors; increasingly, physicians are being hired as employees of hospitals and other facilities. In all cases, it is important to be aware of the corporate structure of the practice or institution, to define the roles of each health professional, and to be aware of the potential exposure to claims that may arise even without the direct involvement of a particular insured.
1 Klar, Tort Law, 2nd ed. (1996), p 478; Fleming, The Law of Torts, 9th ed (1998), p 409.
2 Klar, Supra note 1.
3 1909 2 KB 820 (CA).
4 R.S.O. 1990, c. N.1.
5 World Health Organization, The World Health Report 2006: Working Together for Health (Geneva: World Health Organization, 2006)
6 2010 BCSC 832, 190 ACWS (3d) 607.
7 [1969] SCR 541, 4 DLR (3d) 1.
8 2012 ABQB 777, 228 ACWS (3d) 570.
9 [1974] 5 WWR 311, 49 DLR (3d) 82.
10 2014 ONSC 3871, 241 ACWS (3d) 364.
