The Catholic Child Welfare Society and others v various claimants and The Institute of the Brothers of the Christian Schools [21.11.12]

Institute that supplied teachers to school found jointly vicariously liable with board of managers for sexual abuse of pupils.

Implications

This is an important Supreme Court decision in a long line of judgments concerning sexual abuse in care.

The law of vicarious liability has been reviewed by the courts over many years, in the course of which a two stage test has been established:

  1. Stage one considers the nature of the relationship between the employer and employee
  2. Stage two considers the connection between that relationship and the act or omission

As this case illustrates, the courts, in applying this test in practice, are constantly widening the scope of vicarious liability. In particular, the decision confirms that it is possible to argue that there is dual vicarious liability, where two parties can be said to have dual/shared control.

This case presents defendants and insurers with an opportunity to reduce their exposure in vicarious liability claims where there is dual or shared control of employees (or those deemed to be in an employee/employer relationship) by more than one body. However, conversely, it may also mean that they have potentially increased exposure where one of the parties deemed to have shared control is either defunct or uninsured.

The scope of the decision is potentially very wide ranging and may have repercussions for bodies such as voluntary groups (particularly those where children are supervised by adults) as well as educational establishments.

Background

A large number of Claimants alleged that they had been sexually abused by staff at St William’s School in Market Weighton. At the times the abuse was alleged, the school was constituted either as an approved school or an assisted community home under the legislation current at the time. In each of those constitutions it had a board of managers. The headmaster and some of the teachers were supplied by the Institute of the Brothers of the Christian Schools.

At first instance the High Court held that the board of managers would be vicariously liable for any abuse that was established, but the Institute would not. The Court of Appeal subsequently upheld the first instance decision.

Decision

The Supreme Court unanimously allowed the appeal. It held that it was fair, just and reasonable for the Institute to share, with the board of managers, vicarious liability for sexual abuse committed by brothers at the school.

The law of vicarious liability had developed recently to establish a number of important propositions:

  • It is possible for an unincorporated association to be vicariously liable for the wrongful acts of its members.
  • It is possible to be vicariously liable even if the wrongdoer’s act is in breach of the duty he owes to the person liable and even if the act was the criminal offence of sexual assault.
  • It is possible for two or more different defendants each to be vicariously liable for a single wrongful act.

The Supreme Court considered that the first stage of the test of vicarious liability was satisfied, as the relationship between the Institute and the brothers had all of the essential elements of that between employer and employee. The brothers were directed to teach by the Institute, the teaching activity was undertaken in furtherance of the mission of the Institute and the brothers' conduct was dictated by the Institute. The fact that the brothers had not entered into an employment contract with the Institute directly or that they gave their earnings to the Institute was not important.

The second stage of the test required the Court to consider whether the relationship between the brothers and the Institute had a sufficiently close connection to the abuse carried out at the school. In this case, the brothers were placed in the school by the Institute to teach vulnerable boys over whom they had authority. The headmaster, also appointed by the Institute, ran the school and was the director of the community living at the School. The standing of the brothers would have acted as a reassurance to the managers that the boys could be left in their care.

The fact that the brothers lived with the boys greatly enhanced the risk of abuse by them as they were in close physical proximity. This was not a borderline case and it was fair and reasonable for the Institute to share vicarious liability with the board of managers.