In the recent Supreme Court decision in Catholic Child Welfare Society v Various Claimants and The Institute of the Brothers of the Christian Schools [2012] UKSC 56 Lord Phillips adapted at [21] the Court of Appeal’s approach in JGE v English Province of Our Lady of Charity [2012] EWCA Civ 938, at [37], to the effect that the existence of vicarious liability requires a two stage process. First, the relationship between the abuser and the defendant is to be examined to see whether it is capable of giving rise to vicarious liability. Secondly, it is necessary to examine the closeness of the connection between that relationship and the abuser’s acts.

As to the first stage, it is no longer necessary to show that the relationship between the abuser and the defendant was one of employment. It was held at [47] that there could be vicarious liability where the “relationship has the same incidents” and is “akin to that between an employer and an employee”. The question of whether control was exercised by the defendant is critical, but it is not necessary to show that the defendant directed the abuser as to how to work, but in terms of whether the abuser “was under the management of and accountable to” the defendant: at [49]. Having weighed the factors at [56]-[57], Lord Phillips concluded that the bond between the brothers and the Institute was closer than the conventional employer-employee relationship.  

In relation to the second stage, the position was summed up as follows at [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.

In concluding that the Institute was liable for the actions of the brothers, Lord Phillips pointed out at [89]-[93] that the very purpose of the Institute was to provide education and that the brothers joined the Institute for that reason. The Institute placed brothers in teaching positions, and in the particular school where the abuse had occurred the pupils were “triply vulnerable” because they were not merely pupils at the school, but were referred there as young offenders and were unlikely to be believed if they complained. The level of trust placed in the brothers “greatly enhanced” the risk of abuse by them.

In JGE, the Court of Appeal upheld the decision of MacDuff that a diocesan trust was liable for the acts of a parish priest. Again, the accountability of the priest to the bishop was critical. Attention was drawn to ‘signposts’ which were to be considered: at [72]. These were the degree of control by the defendant, the degree to which the abuser had control over his own actions, how central the abuser’s activity was to the defendant’s activities, how integrated the abuser was within the defendant’s organisation, and whether the abuser was “in business on his own account”.

Two other recent first-instance decisions outside the context of religious relationships are also of interest. EL v The Children’s Society [2012] EWHC 365 (QB) concerned the liability of a charity for abuse perpetrated by the son of ‘houseparents’ appointed by them to run a children’s home. It was held that there was no evidence that he was employed to help run the home, and that his ability to carry out acts of abuse arose from his status as the houseparents’ son rather than any status conferred by the charity: at [53]-[57]. XVW v Gravesend Grammar Schools for Girls [2012] EWHC 575 (QB) concerned schoolgirls who were raped by a local man who had acted as a guide on an overseas trip, in which the school contracted with his father’s company to provide services. Mackay J’s conclusion was that he had never been placed in a position of authority by the defendant and his actions in surreptitiously plying the girls with alcohol and then raping them in their cabin were not closely connected with his status as a guide.

The current approach, therefore, is to examine the relationship between the abuser and the defendant, not in traditional terms of ascertaining an employment relationship, but to determine whether the relationship is sufficiently close to make it fair, just and reasonable that the defendant should be accountable for the abuser’s actions, and then to consider whether the relationship and the allegations have a sufficiently close link. Lord Phillips’ analysis has the merit of being more flexible than simply ascribing vicarious liability to certain types of relationship in defined circumstances, but it will mean that practitioners will have to bear in mind the importance of adducing evidence as to the relationship and its connection with the abuse. It can no longer be assumed that the lengthening tentacles of vicarious liability will not reach out to defendants who would formerly never have been thought to be subject to responsibility.