If I’m understanding Lord Hoffman’s judgment correctly, he is arguing that our focus on the analogy of the “directing mind” obscures its true purpose, which is to identify the person designated by the relevant attribution rule as liable. As “the question is one of construction rather than metaphysics” (para 22), we need to derive the attribution rules for the situations in The “Rhone” and Fitzpatrick’s Fuel in order to apply Lord Hoffman’s analysis. This requires that we consider the statutory provisions involved.
I think Lord Hoffman’s approach would yield the same result in The “Rhone” and a different conclusion in Fitzpatrick’s Fuel. I checked the full decision for The “Rhone”, and it turns out that the accident was wholly caused by Captain Kelch’s navigational errors. Section 647(2) of the 1970 Canada Shipping Act appears to be aimed at ensuring that tort liability attaches to the party truly at fault. Since Captain Kelch’s negligence led to the collision, it would be contrary to the intention of the provision to hold Great Lakes Towing Co. responsible for the Captain’s actions when the company didn’t contribute to the crash. It’s also mentioned that Captain Kelch had 25 years of expertise at the time of the accident, which suggests that it was not unreasonable for Great Lakes to hire him and entrust him with the responsibilities that he had.
In Fitzpatrick’s Fuel, the accused was charged under the section of the Liquor Control Act prohibiting the sale of alcohol to minors. Handrigan Prov Ct J noted that “The Company will be found guilty if the Crown proves the actus reus of the offence, unless the Company can show that it took reasonable care, or exercised due diligence, to avoid the commission of the offence”. The company had ensured that its employees, including the accused, knew about the age restrictions and the required practice regarding ID verification, and it had posted signs and advisory notices about the law. We don’t have full information about the accused’s employment history with the company or the amount of care that it exercised in choosing to hire him, but I still suspect that—unlike the “directing mind” approach, as it was applied by here—Lord Hoffman’s analysis would absolve the company of liability. Handrigan Prov Ct J said that sometimes holding companies responsible even when they’ve done all they can is simply “the price of doing business”. That seems like an oversimplification. In this case, the purpose of the relevant section of the Liquor Control Act is not going to be defeated if we don’t attribute the accused’s actions to the company – Parviz Zamzam is still liable. Based on the facts in our excerpt, it’s arguable that the company did take reasonable care and exercise due diligence to avoid the commission of the offence, thereby detaching itself from the accused’s actions.
I agree with you that Lord Hoffman’s approach would lead to the same result in the Rhone case, but I think I disagree that it would lead to a different result in Fitzpatrick’s Fuel. When I reviewed Lord Hoffman’s judgment, I agreed that, following the rules of attribution, looking into the statutory provisions is necessary. But, also the example stuck out to me (in talking about the person whose knowledge for purpose is attributed to the company is the person who with the authority of the company did the act) that if an employee is authorized to drive a lorry it does not itself lead to the conclusion that his reckless driving leading to death would be attributed to the company. I see the case in The Rhone to be exactly that – the captain had the authority to navigate the ship, but liability from its collision is not attributable to the company because this happened merely from his own navigational errors. However, in Fitzpatrick, the employee was specifically authorized by the company for that decision and purpose of making sure the that minors are not sold liquor, so there would be the same result of the company being held liable.
Sania, I’m sorry I didn’t notice your comment until now! Thanks very much for your thoughtful response. You make a great point. Actually the last line in your comment reminds me of a conversation I recently had about the Fitzpatrick case with a friend of mine who has, in fact, worked at a liquor store. I had remarked that I thought it rather strange for someone at the level of a cashier to be labelled the directing mind, but he surprised me by saying that he believed he—like the accused in Fitzpatrick—ought to be considered the company’s directing mind during their shifts. In his opinion, the total lack of supervision when he was in the store and the resulting importance of his own judgment meant that he was the one operating as that company’s directing mind at the time of his shifts. I think my friend’s personal experience as well as your commentary on the difference between Rhone and Fitzpatrick draw attention to how complicated the directing mind analysis really is. It requires a very careful and holistic examination of the context of a person’s actions.