Recent news events mean that abuse claims are currently in the public eye.
The law in this area is complex with various avenues of redress under both civil and criminal law. For the purposes of this update it is our intention to consider two recent cases where there were allegations of vicarious liability (ie a claim against those who employ the abuser).
Prior to Lister v Hesley Hall Limited  the sexual abuse by employees of others was not considered to be in the course of their employment. This House of Lords decision established that there was a “relative closeness” connecting the tort and the nature of an individual’s employment sufficient to establish liability.
However, recent cases have sought to demonstrate advances to this established principle. It is clear that this is a developing area of law and one where the court is keen to open the door for victims of abuse to pursue compensation.
JGE v The Portsmouth Roman Catholic Diocese1
The claimant alleged that she had been sexually abused and raped by a parish priest. Proceedings were brought against the Roman Catholic Diocese. At first instance the claimant succeeded. The judge acknowledged that vicarious liability comprised two components: 1) a relationship between an employee and employer; and 2) an act which was within the scope of employment. It was found that the priest was not an employee – but that vicarious liability could be founded on a relationship other than employment because of the close connection between the tortfeasor and the person against who liability was sought.
On appeal it was accepted that the law of vicarious liability had moved beyond the confines of a contract of service. However, the test was whether the relationship of the Diocese and the priest was so close in character to one of employer and employee that it was just and fair to hold the employer vicariously liable. Applying a “control test” the priest was not subject to direct control (ie the Bishop did not check what he did every day) but there was a level of control in the sense that if things did not happen then action could be taken.
Even though the priest did not meet classic “employee” tests (eg he was not paid a wage, he did not work under the terms of a contract) he was more like an employee than an independent contractor. His relationship with the Bishop was close enough and sufficiently akin to that of an employer and employee to make it just and fair to impose vicarious liability.
Catholic Child Welfare Society & Ors v (1) Various Claimants (2) Institute of the Brothers of the Christian Schools & Ors2
In what has been described as a “landmark” decision, the Supreme Court decided in favour of the Catholic Diocese which wanted to share liability with a religious order.
In this case, 170 men sought damages arising from alleged abuse of them as children at a “reformatory school” for boys. The school had been managed by the Middlesbrough Diocese. Members of the Institute of the Brothers of the Christian Schools (the “Brotherhood”) had taught alongside lay teachers. A Brother always acted as headmaster. In 1990 the then headmaster was expelled from the Brotherhood and convicted of assault.
In 2010 the Court of Appeal ruled that the Middlesbrough Diocese was solely responsible for the compensation claims which followed. The combined value of the claims was in the region of £8 million. The Diocese sought to appeal this decision.
This judgment of the Supreme Court noted that it was possible for two or more defendants to be vicariously liable for a single wrongful act. The relationship between the Brotherhood and the leading brothers of the school had all the essential elements of that between employer and employee. Accordingly the Brotherhood should share vicarious liability with the Middlesbrough Diocese for the abuse committed by the brothers.