Boudreau v. Jacob et al., (1997) 192 N.B.R.(2d) 256 (TD)

• Judge: Paul S. Creaghan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 16, 1997
• Jurisdiction: New Brunswick
• Citations: (1997), 192 N.B.R.(2d) 256 (TD)

Boudreau v. Jacob (1997), 192 N.B.R.(2d) 256 (TD);

    192 R.N.-B.(2e) 256; 489 A.P.R. 256

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: [1997] N.B.R.(2d) TBEd. SE.028

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

(M/C/955/95)

Indexed As: Boudreau v. Jacob et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Paul S. Creaghan, J.

September 16, 1997.

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 the 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, held that the hospital was not vicariously liable and dismissed the claim against the Region 1 Hospital Cor­poration (Beauséjour).

Damages - Topic 1332

Exemplary or punitive damages - Vicarious liability - The plaintiff was sexually as­saulted by a nurse while he was a patient in hospital - The plaintiff sued for dam­ages, alleging that the hospital was vicari­ously liable for the nurse's actions - The New Brunswick Court of Queen's Bench, Trial Division, held that the hospital was not vicariously liable - The court held that if it had found that the hospital was liable, it would not assess punitive damages against it - See paragraphs 39 to 40.

Hospitals - Topic 2044

Liability of hospitals - To patients - Gen­eral - Duty of care - The plaintiff was sexually assaulted by a nurse while he was a patient in hospital - The plaintiff sued for damages, alleging in his pleadings that the hospital was vicariously liable for the nurse's actions - At trial, the plaintiff expanded that position to include issues of the hospital's duty to monitor the good character of its employees and guard against breach of a fiduciary duty owed to its patients - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff was bound by his pleadings and could not raise a claim which the hospital was not called upon to answer - The court stated that in any event, it could not find that the hospital breached either a direct duty of care or its fiduciary duty toward the plaintiff as a patient - See paragraphs 33 and 34.

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 hospital - While the plaintiff 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 New Brunswick Court of Queen's Bench, Trial Division, held that the hospital was not vicariously liable - The nurse sexually assaulted the plaintiff in circumstances that 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 - See paragraphs 1 to 32.

Master and Servant - Topic 3503

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

Practice - Topic 1335

Pleadings - The issues - Raising issues - Time for - [See Hospitals - Topic 2044 ].

Torts - Topic 2530

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

Cases Noticed:

Lockhart v. Christie et al. (1994), 148 N.B.R.(2d) 81; 378 A.P.R. 81 (T.D.), affd. (1994), 155 N.B.R.(2d) 26; 398 A.P.R. 26 (C.A.), appld. [para. 15].

Hilton v. Thomas Burton (Rhodes) Ltd., [1961] 1 All E.R. 74, refd to. [para. 15].

P.A.B. v. Children's Foundation et al. (1997), 89 B.C.A.C. 93; 145 W.A.C. 93 (C.A.), consd. [para. 18].

G.T.-J. et al. v. Griffiths et al. (1997), 89 B.C.A.C. 126; 145 W.A.C. 126 (C.A.), consd. [para. 23].

McDonald v. Mombourquette et al. (1996), 152 N.S.R.(2d) 109; 442 A.P.R. 109 (C.A.), refd to. [para. 29].

Université de Moncton v. Association des bibliothécaires et professeurs de l'Uni­versité de Moncton et Choquette (1991), 115 N.B.R.(2d) 67; 291 A.P.R. 67 (C.A.), refd to. [para. 33].

Peeters v. Canada, [1994] 1 F.C. 562; 163 N.R. 209; 18 C.C.L.T.(2d) 136 (F.C.A.), refd to. [para. 39].

Authors and Works Noticed:

Salmond and Heuston, The Law of Torts (18th Ed. 1981), pp. 437, 438 [para. 14].

Counsel:

René J. Basque, for the plaintiff;

J. Ernest Drapeau, Q.C., and Jolène Richard, for the defendant, Region 1 Hospital Corporation (Beauséjour).

This action was heard on September 8 and 9, 1997, before Paul S. Creaghan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on September 16, 1997.