Vicarious Liability for Sexual Abuse – The Supreme Court Clarifies Three Key Points

The Catholic Welfare Society v Various Claimants (FC) [2012] UKSC 56

 

(This post attempts to summarise the main points of decision in the case. It does not offer an evaluation of the decision.)

 

In this case the Supreme Court had to consider whether an unincorporated association, ‘The Brothers of The Christian Schools’ (referred to hereafter as ‘The Institute’), was vicariously liable for acts of sexual abuse committed by members of the Institute at a residential school called St William’s. The Institute’s main mission was teaching and its members were lay brothers of the Catholic Church, who had made vows of poverty, chastity and obedience. The brothers were obliged to go wherever they were directed by the Institute, and those who were sent as teachers to St William’s made over their contractual earnings to the Institute, which then provided them with food and accommodation.

 

The case raised three major questions.

Firstly, whether the Institute could be vicariously liable for torts that the brothers (its members) committed at St William’s given that the relationship between the Institute and the brothers was not a contractual relationship between an employer and employee. This can be called the ‘akin to employment’ point.

Secondly, whether the Institute could be vicariously liable for torts that the brothers (its members) committed at St William’s given that the brothers were employed to teach at St William’s by a different party (that was not appealing against the conclusion that it was vicariously liable for their torts). This can be called the ‘dual liability’ point, since it involves asking whether (and, if so, when) two defendants can be vicariously liable for a tort.

Thirdly, whether there was a sufficiently close connection between the brothers’ torts and the relationship between the brothers and the Institute to make the Institute vicariously liable for the torts concerned. This can be called the ‘close connection’ point.

The Supreme Court, in a judgment written by Lord Phillips with which the other members of the Court agreed, decided all three points against the Institute and held that it was fair, just and reasonable to hold the Institute vicariously liable for the acts of abuse committed by the brothers at St William’s.

 

1. ‘Akin to employment’

 

On the ‘akin to employment’ point, Lord Phillips identified five ‘incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant’(START of quotation from para 35):

 

i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

 

ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

 

iii) The employee’s activity is likely to be part of the business activity of the employer

 

iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;

 

v) The employee will, to a greater or lesser degree, have been under the control of the employer.

[END of quotation from para 35]

He then held (at para 47) that: ‘Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is “akin to that between an employer and an employee”.’

 

On the facts he found that the relationship between the brothers and the Institute was sufficiently ‘akin to employment’.

 

2. ‘Dual employment’

 

On the ‘dual employment’ point, Lord Phillips held (at para 45) that the approach of Rix LJ in  Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151; [2006] QB 510 was to be preferred to the approach of May LJ in that case. Thus the five incident ‘akin to employment test’ should be applied independently to each party that it is submitted may be vicariously liable. He also stated that when deciding whether there is ‘dual vicarious liability’ there is ‘no justification’ for applying the ‘stringent test’ employed by the House of Lords in Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1.

 

On the facts he found that the Institute could be vicariously liable for the torts committed by the brothers who worked as teachers at St William’s even though their contractual employers were also vicariously liable for these torts.

 

3. ‘Close Connection’

 

Lord Phillips accepts that: ‘It is not easy to deduce from Lister the precise criteria that will give rise to vicarious liability for sexual abuse. The test of “close connection” approved by all tells one nothing about the nature of the connection.’ Consequently, he sets out to improve matters, and after surveying the previous cases in Canada, England and before the Privy Council, (- the High Court of Australia is said to have ‘shown a bewildering variety of analysis’ -), he identifies ‘the criteria that establish the necessary “close connection” between relationship and abuse’ (START of quotation from para 86):

 

Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.

(END of quotation from para 86)

Thus the extent to which the defendant’s deployment of the abuser has ‘created or enhanced the risk’ of the tort being committed will in future be an important element in assessing the ‘closeness of connection’ between the tort and the defendant’s relationship with the primary tortfeasor.

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Teaches and researches tort law in Oxford, UK.
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