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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.

Photo: Angostura chairman and former senator Rolph Balgobin.
(Courtesy Winston Garth Murrell)

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.

Photo: Trinidad and Tobago Sport Minister Darryl Smith (left) has a laugh with NAAA president Ephraim Serrette at the 2016 NAAA Open Championships at the Hasely Crawford Stadium in Port-of-Spain on 25 June, 2016.
(Courtesy Allan V Crane/Wired868)

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:

Photo: Former minister of sport and youth affairs Darryl Smith.
  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]

Photo: Sexual harassment in the workplace.

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.

Photo: Now former sport minister Darryl Smith (right) makes a pass at Minister of Public Utilities Fitzgerald Hinds at the Hasely Crawford Stadium training ground on 20 January, 2017.
(Courtesy Sean Morrison/Wired868)

About Mohan Ramcharan

Mohan Ramcharan is a Trinidadian living in England, an LLB (Hons) law graduate, systems thinking practitioner, and critical thinker. He is a product of two cultures and strives to be ethical and impartial in his thoughts and actions.

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  1. A Policeman and Prison Officer …..when they err, the State is liable because they are agents of the State, When Smith allegedly did his thing, it was in his personal capacity and the State is not responsible for his actions.

    • Smith wasn’t sued because it was an industrial matter. She was wrongfully dismissed. Sexual harassment is a civil matter an the option was/is there to bring a civil matter against Smith directly.

      • Earl Best

        An important distinction, Roger. Does Moreau, therefore, still have the option to bring a civil suit against DS for sexual harassment assuming Rowley’s investigation does not clear his minion, oops, damn auto-correct, his minister?

    • Roger, why do you think Smith is/was not acting as an agent of the State? His acts were done in the capacity of Minister, during and regarding employment conditions. Keep in mind that as Minister, he has a responsibility (perhaps even more so) to uphold the law and be a good boy.

      Under that reasoning, it is right to hold the State responsible. It is Rowley’s responsibility to hold his ministers to account.

  2. I agree with your suggestion in light of where the Harassment is rooted. It would also have brought greater clarity to the entire issue

  3. I have to say that Mr. Smith had it all coming. He blatantly flirted with his
    co-workers and the media exposed all his moves to the public; it was only
    time. And, Miss Moreau has the right to sue Mr. Smith not the ministry; he
    flirted not the ministry he didn’t uphold properly. Guns don’t kill people;
    is people kill people. this is what transparency and responsibility all about.
    On the other, when these so-call untouchables become suspects it’s not
    the Prime Minister to stand and defend these grown men who hold portf-
    olios, its their responsibility to their honesty and defend their jobs thanks.