Boudreau v. Jacob et al., (1998) 204 N.B.R.(2d) 254 (CA)

• Judge: Rice, Turnbull and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 14, 1998
• Jurisdiction: New Brunswick
• Citations: (1998), 204 N.B.R.(2d) 254 (CA)

Boudreau v. Jacob (1998), 204 N.B.R.(2d) 254 (CA);

    204 R.N.-B.(2e) 254; 520 A.P.R. 254

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1998] N.B.R.(2d) TBEd. OC.013

Jean-Pierre Boudreau (plaintiff/appellant) v. François Jacob and Region 1 Hospital Corp. (Beauséjour)/Corporation Hospitalière de la Région 1 (Beauséjour), a body corporate (defendants/respondents)

(219/97/CA)

Indexed As: Boudreau v. Jacob et al.

New Brunswick Court of Appeal

Rice, Turnbull and Larlee, JJ.A.

September 15, 1998.

Summary:

The plaintiff brought an action for dam­ages against the defendants Jacob and the Region 1 Hospital Corporation (Beauséjour). The Hospital Corporation was responsible for the hospital in which Jacob had worked as a nurse. The action arose as a result of a sexual assault committed by Jacob upon the plaintiff while he was a patient in the hospi­tal. Jacob was noted in default and the mat­ter of the assessment of damages against him was ordered severed. The trial was therefore limited to the issues of liability of the hospi­tal and the assessment of damages against it. The claim against the hospital was based on vicarious liability.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 192 N.B.R.(2d) 256; 489 A.P.R. 256, held that the hospital was not vicariously liable and dismissed the claim against the Hospi­tal Corporation. The plaintiff appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Hospitals - Topic 2102

Liability of hospitals - For acts of others - For acts of nurses - The plaintiff was sexually assaulted by a nurse while he was a patient in a hospital - While the patient was sleeping, the nurse lowered the plain­tiff's pyjamas and touched his penis with his hands or mouth - The plaintiff awoke and the nurse fled the room - The plaintiff sued for damages, alleging that the hospital was vicariously liable for the nurse's ac­tions - The trial court held that the hos­pital was not vicariously liable - The nurse sexually assaulted the plaintiff in circum­stances which had nothing to do with his employment - The fact that he was af­forded an opportunity or that he was a nurse on the unit where the plaintiff was a patient did not in itself give rise to a claim of vicarious liability against the hospital - The New Brunswick Court of Appeal dismissed the plaintiff's appeal.

Master and Servant - Topic 3503

Liability of master for acts of servant - General - Acts outside scope of employ­ment - [See Hospitals - Topic 2102 ].

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - [See Hospitals - Topic 2102 ].

Cases Noticed:

P.A.B. v. Children's Foundation et al. (1997), 89 B.C.A.C. 93; 145 W.A.C. 93; 146 D.L.R.(4th) 72 (C.A.), consd. [para. 7].

B.(P.A.) v. Curry - see P.A.B. v. Child­ren's Foundation et al.

G.T.-J. et al. v. Griffiths et al. (1997), 89 B.C.A.C. 126; 145 W.A.C. 126; 31 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 9].

McDonald v. Mombourquette et al. (1996), 152 N.S.R.(2d) 109; 442 A.P.R. 109 (C.A.), refd to. [para. 9].

Lockhart v. Christie et al. (1995), 155 N.B.R.(2d) 26; 398 A.P.R. 26 (C.A.), consd. [para. 11].

Authors and Works Noticed:

Salmond and Heuston, The Law of Torts (18th Ed. 1981), pp. 437-438 [para. 8].

Counsel:

René J. Basque, for the appellant;

Jolène Richard, for the respondents.

This appeal was heard on May 14, 1998, by Rice, Turnbull and Larlee, JJ.A., of the New Brunswick Court of Appeal. The deci­sion of the court was delivered by Larlee, J.A., on September 15, 1998.