‘Vicarious liability is on the move’. Lord Phillips’ opening comments in his Various Claimants -v- Catholic Child Welfare Society judgment are as accurate now as they were four years ago. Insurers are consistently facing new challenges as the scope of the doctrine of vicarious liability extends. The recent judgments of the Supreme Court in Mohamud -v- WM Supermarkets Plc. and Cox -v- Ministry of Justice have only served to continue the onward trajectory. Against the backdrop of such developments, defendants must, more than ever, have regard to the possibility of pursuing the primary tortfeasor in claims where that individual is solvent and able to meet such claims.

We recently acted on behalf of the insurers of two schools in respect of six claims for historic abuse by a school teacher (‘Mr D’). Mr D had been very recently convicted of indecently assaulting all six claimants. Both schools had employed Mr D at the time of the relevant abuse, and vicarious liability was not in issue. Due to the historic nature of the abuse (which occurred over 30 years ago) we had valid limitation defences, but the recent convictions were likely to weaken our arguments.

Having realised that we faced an uphill battle to defend the prima facie claims, we explored the possibility of pursuing Mr D. We carried out investigations to ascertain Mr D’s financial position. We established that there was a good possibility that Mr D would be able to meet at least a substantial part of the claims. Proceedings were issued by the claimants’ solicitors against our insured in respect of one of the claims and we commenced part 20 proceedings against Mr D in that claim. We also subsequently redirected those claims that had not been litigated to his legal representatives.

Having had the benefit of independent legal advice, Mr D settled all six claims personally through ADR with the claimant’s solicitors. Our costs of defending the litigated claim, and issuing the part 20 proceedings, were also met by Mr D.

Ultimately, Mr D paid out £129,215 in damages across six claims, plus £320,797 for claimant’s costs. With defence costs factored in, our decision to commence part 20 proceedings against Mr D saved our insurer clients almost £470,000.

Aside from the excellent financial result for our clients, there are clear moral arguments to suggest that the course of action that we took was correct. Whilst vicarious liability would have been easy to establish against the insured schools on whose behalf we acted, no criticism could have been made in respect of the school’s conduct at any stage. The schools in this instance had some comfort in knowing that they had insurance in place at the time of the abuse. However, we have experience of acting for schools and other institutions who, particularly in the more historic claims for abuse, have been unable to locate the relevant insurance. In such cases, the moral argument for pursuing the primary tortfeasor, where practical, is even stronger. Why should present day schools, and by implication the children they educate, suffer because of non-fault liability for the abhorrent actions of a member of staff many years before?

Vicarious liability does not extinguish the liability of the primary tortfeasor. But in an age where courts are extending the scope of vicarious liability, surely it is only right that in cases such as these, where the wrongdoing by the member of staff was intentional (as well as repugnant), the possibility of the primary tortfeasor meeting the claims is properly explored.