Recovering sick pay, medical expenses from those who harm workers
Background
The phrase “master and servant” sounds quaint today — or worse, it suggests abusive power by one person over another. In a notorious English case from 1697, a court held it was normal for a master to “correct” his servant with a “cudgel, etc.,” although using a sword was just a little over the top. A good clout with a stick was all right, but the fact an employee was all cut up “showed malice.”
Nonetheless, lawyers still often call the employer-employee relationship one of master and servant. And a recent case out of Alberta affirms a very old doctrine allowing an employer as master to sue for expenses when someone has harmed the employer’s “servant.”
In that sense, it makes the worker the employer’s property.
The law gives this doctrine a Latin name: per quod servitium amisit — per quod for short. It means “he lost the service” and signifies a truly ancient principle with roots in classical Greece. Our own older law applied it against those “beating, confining or disabling a man’s servant.” The employer sued for “trespass to his servant’s person” when trespass caused the employer’s loss of the worker’s services. That is, the employer sued for his own loss and not for the servant’s benefit. (Of course, the employee might have had a lawsuit of his own based on the same facts.)
What offends some people about the doctrine today is that it presumes the employer has a property interest in the employee-servant. In fact, fathers once used the per quod doctrine to extract money from men who seduced their daughters. The complaining father had to show that, because of the seduction, he had lost some of the daughter’s value as a household worker or tangible asset. Because most of the fathers were well off, English wags said fathers sued for the want of someone to pour their tea. But in Canada the young women often provided valuable services to their families.
The legislatures in British Columbia and New Brunswick have abolished the per quod doctrine for employers, and it is absent from Quebec’s employment law, which derives from the Napoleonic Code. But as this issue’s case in point shows, the doctrine — quaint or not — survives in the rest of the country.
The case: Attorney General of Canada v. Livingstone
On the first day of this new century Constable Brian Wallace of the RCMP was patrolling a highway near Lethbridge, Alta., when he experienced his personal “Y2K” disaster.
Coming from the opposite direction, Michael Livingstone lost control of his car and crashed into Constable Wallace’s cruiser. The RCMP paid Wallace for his time off for rehabilitation and looked after his extra medical expenses. Then it sued the Livingstone family for return of those costs, relying on the doctrine of per quod servitium amisit.
That is, the RCMP argued it had a property interest in Wallace as its “servant.”
The Livingstones argued the per quod doctrine no longer existed, given that it was based on the antiquated idea that the employer had an ownership claim on the employee, just as it would in machinery. As well, the Livingstones contended the RCMP’s claim was for “relational economic interest, and the Mounties could not recover money damages for such pure economic loss — as opposed to what they might be able to recover, for example, for some tangible damage such as the damage to the police cruiser.
The Alberta Court of Queen’s Bench has said the RCMP’s lawsuit can proceed. It has held that the per quod action still exists in seven provinces which have not abolished it through legislation or otherwise.
The seven provinces are: Newfoundland and Labrador, Prince Edward Island, Nova Scotia, Ontario, Manitoba, Saskatchewan and Alberta.
The Livingstones reasonably could have foreseen, the court has held, that Brian Livingstone’s conduct would oblige the RCMP to pay Wallace’s lost or future remuneration. They had a duty of care to the RCMP as well as to Wallace.
There were no public policy concerns limiting the duty, the court added, as the lawsuit was restricted to the actual value of the services lost or the medical and hospital expenses incurred. That is, the damages were clearly defined, and clearly the Mounties had incurred them. Further, as the damages would have been the same had the RCMP not paid Constable Wallace’s wages and expenses, there was no efficiency in preventing the RCMP from recovery under the doctrine.
For more information:
Attorney General of Canada v. Livingstone, 2003 ABQB 1036.
‘Master’ still entitled to damages for injury to ‘servant’ employee
In the Livingstone case, Justice James Langston makes the following observations about the per quod doctrine:
“Per quod actions have been successfully litigated in the modern era, but with a suitable adjustment in [their] premise to take into account that today’s employer is no longer ‘a master of his servant’ and that, as the Alberta Court of Appeal [has] noted ... ‘the right to enjoy the services of an employee is [not] to be likened to ownership of an incorporeal chattel.’
As “it is not unusual for an employer to continue to pay an injured employee who is unable to work, it is also a foreseeable possibility that an employer will suffer damages if it continues to pay wages to the injured employee who is unable to work. In a per quod situation such as this, the injured employee does not suffer lost wages, since the plaintiff employer continued to pay them. The damages are suffered by the employer who has paid the wages for which it has received no services.”
This in-depth look at recovering costs for injury to employees was provided by Jeffrey Miller, a Toronto writer, lawyer, and translator. His new crime novel, Murder at Osgoode Hall, will be available May 2004. For more information visit www.jeffreymiller.ca.
The phrase “master and servant” sounds quaint today — or worse, it suggests abusive power by one person over another. In a notorious English case from 1697, a court held it was normal for a master to “correct” his servant with a “cudgel, etc.,” although using a sword was just a little over the top. A good clout with a stick was all right, but the fact an employee was all cut up “showed malice.”
Nonetheless, lawyers still often call the employer-employee relationship one of master and servant. And a recent case out of Alberta affirms a very old doctrine allowing an employer as master to sue for expenses when someone has harmed the employer’s “servant.”
In that sense, it makes the worker the employer’s property.
The law gives this doctrine a Latin name: per quod servitium amisit — per quod for short. It means “he lost the service” and signifies a truly ancient principle with roots in classical Greece. Our own older law applied it against those “beating, confining or disabling a man’s servant.” The employer sued for “trespass to his servant’s person” when trespass caused the employer’s loss of the worker’s services. That is, the employer sued for his own loss and not for the servant’s benefit. (Of course, the employee might have had a lawsuit of his own based on the same facts.)
What offends some people about the doctrine today is that it presumes the employer has a property interest in the employee-servant. In fact, fathers once used the per quod doctrine to extract money from men who seduced their daughters. The complaining father had to show that, because of the seduction, he had lost some of the daughter’s value as a household worker or tangible asset. Because most of the fathers were well off, English wags said fathers sued for the want of someone to pour their tea. But in Canada the young women often provided valuable services to their families.
The legislatures in British Columbia and New Brunswick have abolished the per quod doctrine for employers, and it is absent from Quebec’s employment law, which derives from the Napoleonic Code. But as this issue’s case in point shows, the doctrine — quaint or not — survives in the rest of the country.
The case: Attorney General of Canada v. Livingstone
On the first day of this new century Constable Brian Wallace of the RCMP was patrolling a highway near Lethbridge, Alta., when he experienced his personal “Y2K” disaster.
Coming from the opposite direction, Michael Livingstone lost control of his car and crashed into Constable Wallace’s cruiser. The RCMP paid Wallace for his time off for rehabilitation and looked after his extra medical expenses. Then it sued the Livingstone family for return of those costs, relying on the doctrine of per quod servitium amisit.
That is, the RCMP argued it had a property interest in Wallace as its “servant.”
The Livingstones argued the per quod doctrine no longer existed, given that it was based on the antiquated idea that the employer had an ownership claim on the employee, just as it would in machinery. As well, the Livingstones contended the RCMP’s claim was for “relational economic interest, and the Mounties could not recover money damages for such pure economic loss — as opposed to what they might be able to recover, for example, for some tangible damage such as the damage to the police cruiser.
The Alberta Court of Queen’s Bench has said the RCMP’s lawsuit can proceed. It has held that the per quod action still exists in seven provinces which have not abolished it through legislation or otherwise.
The seven provinces are: Newfoundland and Labrador, Prince Edward Island, Nova Scotia, Ontario, Manitoba, Saskatchewan and Alberta.
The Livingstones reasonably could have foreseen, the court has held, that Brian Livingstone’s conduct would oblige the RCMP to pay Wallace’s lost or future remuneration. They had a duty of care to the RCMP as well as to Wallace.
There were no public policy concerns limiting the duty, the court added, as the lawsuit was restricted to the actual value of the services lost or the medical and hospital expenses incurred. That is, the damages were clearly defined, and clearly the Mounties had incurred them. Further, as the damages would have been the same had the RCMP not paid Constable Wallace’s wages and expenses, there was no efficiency in preventing the RCMP from recovery under the doctrine.
For more information:
Attorney General of Canada v. Livingstone, 2003 ABQB 1036.
‘Master’ still entitled to damages for injury to ‘servant’ employee
In the Livingstone case, Justice James Langston makes the following observations about the per quod doctrine:
“Per quod actions have been successfully litigated in the modern era, but with a suitable adjustment in [their] premise to take into account that today’s employer is no longer ‘a master of his servant’ and that, as the Alberta Court of Appeal [has] noted ... ‘the right to enjoy the services of an employee is [not] to be likened to ownership of an incorporeal chattel.’
As “it is not unusual for an employer to continue to pay an injured employee who is unable to work, it is also a foreseeable possibility that an employer will suffer damages if it continues to pay wages to the injured employee who is unable to work. In a per quod situation such as this, the injured employee does not suffer lost wages, since the plaintiff employer continued to pay them. The damages are suffered by the employer who has paid the wages for which it has received no services.”
This in-depth look at recovering costs for injury to employees was provided by Jeffrey Miller, a Toronto writer, lawyer, and translator. His new crime novel, Murder at Osgoode Hall, will be available May 2004. For more information visit www.jeffreymiller.ca.
| Derivative of ‘master and servant’ alive in Ontario Attorney General of Canada v. Kerr (1997), 36 Ontario Reports (3d) 71 This 1996 decision of the Ontario Court (General Division) adds an interesting twist to Livingstone. The facts are very similar, but the offending driver in this case argued: “If the injured employee isn’t entitled to damages from me, then the employer has no right to claim damages through that employee.” The defendant Kerr was responsible for a car accident that injured a member of the Canadian Armed Forces. The Forces sued Kerr for the $4,674 it paid the member in sick leave pay during his recovery. But Kerr objected that Ontario’s Insurance Act forbade the member-employee from suing given he had not suffered serious, permanent injury. (The member could claim insurance benefits, that is, but not seek damages from Kerr personally.) Kerr reasoned that, as the Forces were claiming through the member-employee, they had no higher rights than their employee. Everyone agreed that, as trial judge Monique Métiver put it, “the action per quod, which derives from the master and servant relationship, is alive and well in Ontario.” And the court ruled that the Forces could still bring a per quod action against Kerr. While the Insurance Act erased Kerr’s liability, Justice Métivier reasoned, Kerr’s conduct was still wrongful, and it still deprived the Forces as master of the work of its servant. The Insurance Act did not “make the wrongful act innocent.” Justice Métivier awarded the Forces the full amount of sick pay it claimed, but declined to award “the costs of hospital and medical care expended by medical personnel employed by the federal Crown or through use of facilities operated by the federal Crown. ... The personnel and facilities would have been employed and maintained by the Crown in any event.” |
