T.G. Bright & Co. Ltd. v. Kerr

T.G. Bright & Co. Ltd. v. Kerr

Majority held on the evidence Sinclair was not the company's servant with respect to operation of the motorcycle; his negligent driving was collateral/casual negligence of an independent agent/private carrier and not within the scope of employment; therefore the company was not vicariously liable and the trial judge’s dismissal as to the company was restored.

Citation
[1939] SCR 63
Parties
Appellant (defendant Company): T.G. Bright & Company Ltd.; Respondent (plaintiff): Sarah Jane Kerr, Administratrix of the Estate of John Todd Kerr, Deceased; Defendant (driver): Wilbert Sinclair; Defendant (owner): Leslie Sinclair
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
12 December 1938
Procedural Posture
Fatal Accidents Act Claim (tort/negligence) / Appeal to Supreme Court of Canada From Court of Appeal for Ontario; Final Disposition on Appeal
Outcome
Appeal allowed; judgment of trial court dismissing action as against T.G. Bright & Company Ltd. restored
Legal Topics
Respondeat Superior, Master and Servant Distinction, Collateral/casual Negligence, Effect of Statutory Regulations on Agency Status, Issue Preclusion/judgment Against Joint Tortfeasor
Source Language
English
Torts Agency Vicarious Liability Statutory Regulation (liquor Control) Respondeat Superior Master and Servant Distinction Collateral/casual Negligence Effect of Statutory Regulations on Agency Status +1 more

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Parties

T.G. Bright & Company Ltd.

Appellant (defendant Company)

Sarah Jane Kerr, Administratrix of the Estate of John Todd Kerr, Deceased

Respondent (plaintiff)

Wilbert Sinclair

Defendant (driver)

Leslie Sinclair

Defendant (owner)

Procedural Posture

Fatal Accidents Act Claim (tort/negligence) / Appeal to Supreme Court of Canada From Court of Appeal for Ontario; Final Disposition on Appeal

Legal Issues

  1. 1 Whether the company was vicariously liable for the negligent driving of Sinclair
  2. 2 Whether Sinclair was a servant (making appellant liable) or an independent contractor/agent
  3. 3 Whether Liquor Control Act regulations made Sinclair the company's agent for delivery

Ratio Decidendi

Majority held on the evidence Sinclair was not the company's servant with respect to operation of the motorcycle; his negligent driving was collateral/casual negligence of an independent agent/private carrier and not within the scope of employment; therefore the company was not vicariously liable and the trial judge’s dismissal as to the company was restored.

Court Disposition

Appeal allowed; judgment of trial court dismissing action as against T.G. Bright & Company Ltd. restored

Orders

  • Appeal allowed with costs; judgment at trial restoring dismissal of action against T.G. Bright & Company Ltd. restored
  • Costs awarded to appellant in this Court and in the Court of Appeal