Case Number

CA 7/64

Date Decided

6-21-1964

Decision Type

Appellate

Document Type

Full Opinion

Abstract

In April 1957, the appellant sued a police sergeant for damages for physical injuries he had caused her. That action was dismissed at first instance on the ground of lack of evidence, and the Court of Appeal refused to interfere with this decision. The appellant then began an action against the respondents as the employers of the sergeant, claiming vicarious liability, in respect of the same alleged injuries. An application by the respondents to dismiss the action in limine as res judicata was granted: hence this appeal.

Held. (1) The rule that a judgment as between A and B will not be res judicata as between A and C is subject to an exception that where B was an employee directly responsible for the tortious act and C was vicariously liable therefor.

(2) The fact that an employee is held liable in tort will not bar the employer from denying that liability, if the latter was not party to the first trial, whereas if the employee is found to be free of liability. that will enure to the benefit of the employer even if not a party. The reason is that the employee's direct liability is the basis for the derivative liability of the employer and not the reverse. Accordingly the two claims are identical although the parties differ. If there is no direct liability on the part of the employee, there can be no derivative (vicarious) liability on the part of the employer.

Keywords

Torts -- Exemptions from liability, Torts -- Fault

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