“The law of vicarious liability is on the move” according to the judgment of Lord Phillips handed down on 21 November 2012 in the case of Catholic Child Welfare Society v Various Claimants (1) and The Institute of Christian Brothers (2). In this judgment, the Supreme Court gave a unanimous decision representing a sizable victory for those making child abuse compensation claims.
Vicarious liability, in its most basic form, is responsibility for the acts of another person. This is a very important concept in child abuse cases where schools, churches, scout groups etc can be sued for the actions of people under their control. This is important because such organisations will have insurance or resources to pay compensation, whereas the individual perpetrator may not.
Recent changes to the law in this area have:
- Allowed unincorporated institutions to be vicariously liable;
- Imposed vicarious liability for criminal acts; and
- Allowed several different defendants to be found vicariously liable for one wrongful act.
Further, a two stage test must be applied in order to show vicarious liability.
- The relationship between the institution and its member should be considered. In this case it was held that even though the relationship between the institute and the abusive Christian Brothers was not that of employer/employee (for which strict liability is implied) it had all the essential elements of that relationship. For example, Lord Phillips stated that the vows undertaken by the Brothers were akin to a contract of employment.
- It should be considered whether this relationship put the abuser in a position that created or significantly enhanced the risk of abuse. In this case, as the institute had:
- placed the Christian Brothers in their teaching positions;
- placed the Christian Brothers in close, residential proximity to the children; and
- known that the children in question were vulnerable.
It was therefore held that the institute had significantly advanced risk of abuse and was therefore vicariously liable.
Lord Phillips concluded that the case was not a borderline one, but one in which it was clear that vicarious liability should be imposed.
In my blog of 25 July 2012 Compensation for abuse in the Catholic Church: JGE v Diocese of Portsmouth, I discussed the fact that other cases were waiting for this judgment to be made. In the end, its message was definitive and cements an expansion in the concept of vicarious liability into law. This should make it easier for prospective claimants to bring a claim, and more likely that such claims will settle out of court.