Living Law: Should Moreau have sued Minister Smith instead of Smith’s Ministry?

Carrie-Ann Moreau, who claimed to have been sexually harassed by Minister of Sport and Youth Affairs Darryl Smith, did not sue Smith but sued the State (the Ministry of Sport and Youth Affairs and the Chief Personnel Officer) for TT$234,360.

Similarly, Bernadette Sammy, who claimed to have been sexually harassed by Angostura Holdings Ltd Board Chairman Rolph Balgobin, opted not to sue the alleged offender but the company, Angostura Holdings Ltd.

To understand these choices, one has to familiarise oneself with a branch of law called tort law, which is just the legal name for the part of the law that deals with a wrongful act which leads to harm.

Before we go any further, it has to be stressed that a duty of care (really, a compulsory responsibility to take care) is imposed by the law, whether the person(s) involved agrees to it or not.

So how does one decide whom to sue? Moreau and Sammy are not unique. We often see in the media that, instead of the person who was the actual perpetrator of the deed that harmed them, people sue the State. A policeman who beats a person during or after an arrest or a prison officer who beats a prisoner is not the one who is sued; instead, the victims will sue the State for damages.

The public thinks that it is unfair for these victims to sue the State and get “taxpayer dollars” if they win. Surely, it is only fair for the person who caused the harm to be punished. And there will be many calls—publicly and privately—for the individual who caused the harm to be sued instead.

It’s what people really mean when they say that Darryl Smith should be made to pay back the TT$150,000 paid to Moreau. Of course, that ignores the very obvious issue called into question here about everyone being innocent until proven guilty.

But the relevant questions here are these: If the matter had gone to trial, is it likely that Moreau would have got the almost TT$235,000 for which she sued the State? And is it likely that Moreau would have got that sum if she had instead sued Minister Smith for anything like that amount?

I offer no direct answer. Instead, I respond that a lawsuit is almost pointless if the person sued has no assets. Therefore, Moreau’s chances of getting the sum for which she sued are better in Case one than in Case two. The first reason is that it is not just about following the money (although that is part of it) and suing those who have the ability to pay, in this case, the State rather than the individual.

Reason two has to do with responsibility.

Any person who works for the State is acting in the capacity of an ‘agent’ of the State. The State being the employer, it is responsible for the actions of the employee during employment. Employees are considered adults capable of determining their own actions, so to hold the employer responsible for improper behaviour seems at first glance to be grossly unfair to the employer.

However, for the employer to be held liable, there are three conditions which must be satisfied:

1. the employer owes a common law duty of care to the employee;
2. the employer has vicarious liability with respect to the employee;
3. the employer has a statutory duty which is not met.

To begin with, the employer has a duty—called a primary duty, which means it cannot be passed to someone else—to make sure the employee works in a safe environment. The employee must be free from exposure to physical harm and psychiatric (mental/emotional) harm. Sexual harassment may qualify as both physical and mental, depending…

Secondly, if the employee commits an act that causes harm and the act is connected in some way with his employment, the employer is then vicariously (indirectly) liable. Why? Simply because it is the employer who has ‘control’ over the actions of the employee, who put the employee in the position to do harm. This is a secondary duty. Note that the primary duty to do no harm still lies with the employee.

In a 2012 judgement, Lord Phillips, former President of the Supreme Court (UK), set out the reason why the employer is held liable:

‘The policy objective underlying vicarious liability is to ensure, in so far as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread.

‘It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability.’ [Emphasis added]

Put more simply, the court usually finds it right to make the employer pay because the employer, by hiring the employee, has put the employee in the position to cause harm and because the employer has larger resources to compensate the victim, including insurance and assets.

Of course, this applies only when and where the employee is acting in the course of employment. If he is acting on his own, without any connection to his employment, then he alone will be responsible.

The third condition is in cases where a statute, an Act of Parliament, imposes a duty on the employer to meet conditions which are breached by the employee. The  commonest example is perhaps where an employer fails to observe Occupational Health and Safety rules, leading to injury.

Of course, there is much greater complexity involved as there are many tests to be passed and hurdles to be surmounted before a case is deemed viable for court. I have merely attempted to simplify the explanation as to why an employer, in this case the State, is likely to be sued instead of the individual perpetrator.

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