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This case cited with approval in Lister [see separate post under this tag].

In Bazley, the judge, McLachlin J,. said,

In summary, the test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm.

The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability – fair and efficient compensation for wrong and deterrence.

This requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing.

Because of the peculiar exercise of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing.

Formatting changed for ease of reading.

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