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Per Lord Phillips: “This is not a borderline case. It is one where it is fair, just and reasonable . . . for the Institute to share with the [schools’ managers] vicarious liability for the abuse committed by the brothers.” [94]

A large number of claimants brought proceedings alleging physical and sexual abuse by staff at a school, prior to its closure in the early 1990s. A number of the staff and the headmaster were drawn from the Institute of the Brothers of Christian Schools, an unincorporated association. The brothers are bound together by solemn lifelong vows of chastity, poverty and obedience, and their deployment to teaching functions was the responsibility of the Institute. The issue on appeal was whether the Institute could be jointly vicariously liable with the managers for alleged abuse by staff members. On the 21 November 2012, the Supreme Court unanimously allowed the appeal by the managers of the school.

Court of Appeal decision

The facts and the proceedings before the Court of Appeal are summarised in our Case Preview and also at paras 6–24 of the Supreme Court decision.

Supreme Court decision

“The policy objective underlying vicarious liability is to ensure, insofar as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim.” [34]

Quickly reviewing the authorities, Lord Phillips, giving the Court’s judgment, confirms the test of vicarious liability as the synthesis of two stages: first, whether the relationship between the tortfeasor and the defendant was one that was capable of giving rise to vicarious liability; and secondly, an examination of the connection between that relationship and the wrongful act or omission.

Stage 1: the essential elements of a relationship

Phillips explains why the vast majority of vicarious liability cases concern employment relationships. He highlights five policy reasons that he says “usually make it fair, just and reasonable to impose vicarious liability on the employer”:  the employer is more likely to have the means to compensate the victim; the tort will have been committed as a result of activity by the employee on behalf of the employer; the employee’s activity is likely to be part of the employer’s business activity; the employer has created the risk of the tort; and the employee will, to a greater or lesser degree, have been under the control of the employer. [35]

He examines the line of authority in relation to vicarious liability for the actions of independent contractors, and the development of the possibility of dual liability – of both the direct employer and the hirer. Citing Rix LJ in Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1, to establish dual vicarious liability what one was looking for was:

“a situation where the employee in question . . . is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence.”

Lastly, turning to the recent case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, where the Court of Appeal established that control was not to be treated as the critical touchstone of employment – even if an important consideration. The relationship to establish vicarious liability must be “akin to employment”. Ward LJ in that case concluded that a relationship between bishop and priest was so close in character to one of employer/employee that it was “just and fair to hold the employer vicariously liable”.

Ultimately Lord Phillips considered the relationship between the teaching brothers and the Institute was “sufficiently akin to that of employer and employees to satisfy stage 1 of the test” [60]. The Institute conducted its activities as if it were a corporate body; the teaching activity and even the entering into of contracts with the managers, was undertaken because the Institute required it; the teaching activity was in furtherance of the Institute’s “mission”; and the “manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules”.

Examining differences between the brothers and employees, given the nature of their vows, Phillips felt that “the relationship between the brothers and the Institute [was] closer than that of an employer and its employees”. He doubted Hughes LJ’s view that the Institute was like other professional bodies: merely conferring a status on the brother-teachers, instead the Institute united the brothers to achieve their objective of providing boys with a Christian teaching.

Stage 2: connection between the abuse and the relationship between the brothers and the Institute

Lord Phillips established the policy principles identified by Canadian authority relevant to vicarious liability for sexual abuse:

“Where an employer puts into the community an enterprise carrying with it certain risks and those risks materialise and cause injury it is fair that, having created the enterprise and the risk, the employer should bear the loss . . . [H]olding the employer vicariously liable might have a deterrent effect, causing employers to exercise a greater degree of care in relation to the appointment and supervision of employees.” [64]

Analysing the House of Lords authority, Lister v Hesley Hall Ltd [2002] 1 AC 215, Phillips admits that “it is not easy to deduce . . . the precise criteria that will give rise to vicarious liability for sexual abuse. The test of ‘close connection’ approved by all tells nothing about the nature of the connection”. [74]

However, he drew out what he called a “common theme” in the authorities:

“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 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 this involves a strong causative link . . . Creation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability.” [86–87]

Phillips felt the necessary close connection was established by drawing on the objectives of the Institute to provide a Christian education to boys, and the recognition of the risk of abuse in the brother-teachers’ rules. Additionally because the rule dealing with chastity explicitly prohibited the touching of children.

Comment

The Court of Appeal concentrated on stage 1 of the test, comparing the Institute to a professional body conferring a status, but ultimately too far removed to be held responsible for events. However, on the facts, it does seem fair to argue that the relationship between the Institute and the brother-teachers was akin to employment.

The discussion of stage 2 of the test seems eerily well-timed in the light of recent events. Moving beyond the concept of “ordinary course of employment” to establish the necessary close connection, Lord Phillip’s suggestion at para 92 that “abusing the boys in their care was diametrically opposed to  [the Institute’s stated] objectives but, paradoxically, that very fact was one of the factors that provided the necessary close connection between the abuse and the relationship between the brothers and the Institute that gives rise to vicarious liability”. This seems consistent with Lord Hobhouse in Lister, who relied on the idea of the voluntary assumption of the relationship and the duties that arise from that to establish vicarious liability.