On 21 November 2012, the Supreme Court in the United Kingdom handed down judgment in Catholic Child Welfare Society v Various Claimants (1) The Institute of Catholic Brothers (2)  UKSC 56. The original decision of the Court of Appeal of England and Wales was being appealed and the Court was required to review the principles of vicarious liability in the context of sexual abuse of children.
The Supreme Court held that the Institute of Catholic Brothers (the Institute) was vicariously liable for the acts of abuse committed by various Catholic brothers against children at a school called St William’s. Despite being handed down in the UK, this case is interesting and instructive in light of the recent announcement by Australian Prime Minister, Julia Gillard, that there will be a national royal commission to investigate institutional responses to allegations of child sexual abuse in Australia.
In Catholic Child Welfare Society, Lord Phillips held that there are two stages in establishing vicarious liability:
Stage 1: The first stage is to consider the relationship of the abuser and the defendant to see whether it is a relationship capable of giving rise to vicarious liability; and
Stage 2: The second is to examine the connection which links the relationship between the abuser and the defendant and the act or omission of the abuser.
Vicarious liability arises where there is an employer and employee relationship. According to the UK Supreme Court, the relationship between the Institute and the brothers was not your typical relationship of employer and employee. This is because the brothers who taught at St William’s were not contractually employed by the Institute, but were instead contractually employed by the Middlesbrough Defendants. It was the Middlesbrough Defendants who sought to establish dual vicarious liability with the Institute on appeal.
The Court held that the relationship between the Institute and the brothers did have some essential elements of a relationship between employer and employee including:
- The Institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body;
- The teaching activity of the brothers was undertaken because the Institute directed the brothers to undertake it;
- The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the Institute; and
- The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. One particular chapter in the rules included a provision that “They shall not touch their pupils through playfulness or familiarity...”
On the other hand, the relationship also differed from that of employer and employee in that:
- The brothers were bound to the Institute not by contract, but by their lifelong vows as brothers which included vows of chastity, poverty and obedience; and
- The brothers entered into deeds with the Institute under which they were obliged to transfer all their earnings to the Institute and in return the Institute catered for their needs from these funds.
The Court found that the relationship between the teaching brothers and the Institute was similar enough to that of an employer and employee relationship. As well as having regard to the above facts, in reaching this conclusion, Lord Phillips said that the business of the Institute was to provide Christian teaching for boys, and that the brothers and the Institute were united in that objective. Therefore stage 1 was satisfied.
In relation to stage 2, Lord Phillips found that the relationship between the Institute and the brothers enabled the Institute to place the brothers in teaching positions, and in particular, in the position of headmaster of St William’s. This is what made the connection between the brothers and the Institute so close. It was also of significance that the business and mission of the Institute was the common business and mission of every brother who was a member of it.
Vicarious liability was therefore found on the part of the Institute, and the Institute was therefore held to share vicarious liability with the Middlesbrough Defendants.
Vicarious liability in Australia for deliberate acts such as abuse is not as clearly laid out as it is in the UK. It is the case in Australia that the non-delegable duty of care owed by a school for example, does not automatically extend to make the employer liable for the deliberate criminal conduct of an employee.1
In the case of New South Wales v Lepore (2003) 212 CLR 511, three High Court judges decided that sexual assault cannot be part of the “course of employment” and three judges decided that it could be. The position in Australia in relation to deliberate acts of abuse such as that which occurred in Catholic Child Welfare Society is therefore not entirely clear, but is most likely going to be revisited in the near future having regard to the national royal commission into child sexual abuse.