Sexual Abuse and the Changing Nature of Vicarious Liability

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Case note
Sexual abuse and the changing nature of vicarious liability
Case: Various Claimants v Institute of the Brothers of the Christian Schools [2012] UKSC 5: [2012] 3 W.L.R. 1319 (SC) According to Steele, vicarious liability is defined as an employer being found liable for the tort of his or her employee, provided that tort is sufficiently connected with the individual’s employment. On the face of it, this definition seems straightforward and clear, however you only need to look at the plethora of cases which have come to light in recent years to see that the reality is very different. The case of Various Claimants v Institute of the Brothers of the Christian Schools, (CCWS) is the latest case which has served to further develop the doctrine of vicarious liability. I will begin this case note by setting out the facts of the case and what the court held. After analysing the reasoning of the court, I will explain why this case will have minimal implications on future ones. Facts

This case concerns a group action by 170 men in respect of abuse to which they allege they were subjected at the School, by Brother James and by other brothers. The claims are against two groups of defendants. The first group consists of the managers of the school from 1973, who inherited the statutory liabilities of the former managers and entered into contracts of employment with the brother teachers (‘the Middlesbrough Defendants’). The second group consisted of members of the Institute (‘the Institute Defendants’). As a preliminary issue, the High Court held that the Institute Defendants were not vicariously liable for the acts of abuse committed by brothers at the School. The Court of Appeal upheld that ruling. The Middlesbrough Defendants sought to establish that the institute shared dual vicarious liability with them and appealed to the Supreme Court. Held

It was held by the Supreme Court that in addition to the Middlesbrough defendants, the institute was vicariously liable for the torts committed by the brothers. Lord Phillips delivered the judgment of the court and applied a two stage test to find vicarious liability. In stage 1, he found that the relationship between the institute and the tortfeasors was akin to that between an employer and employee. In coming to this conclusion, Lord Phillips considered whether there was a degree of control from the institute over the tortfeasors and if the tortfeasors were acting in the aims of the institute. He found that because the brothers activity of teaching the boys was inline with the aims of the institute and because the institute controlled where to locate the brothers, a relationship akin to that of an employee and employer existed between them. Stage 2 focused on the connection between the relationship and the committing of the abuse. Phillips held that there was a close connection between the act and the relationship between the brothers and the institute. When looking at dual vicarious liability Phillips considered the reasoning given by Rix LJ in the case of Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others. It was found to be fair, just and reasonable for the institute to share vicarious liability with the middlesborough defendants. Stage 1 – Relationship akin to employment

The concept of a relationship which was akin to employment giving rise to vicarious liability, was only explored in the recent case of JGE v The English Province of Our Lady of Charity and The Trustees of the Portsmouth Roman Catholic Diocesan Trust, (JGE). The facts of the two cases are similar in that they both involve sexual abuse of children by members of religious organisations. On the facts of the CCWS case, Phillips was right to find that the relationship between the institute and the brothers was akin to that of an employer and employee. The test for this was outlined in JGE, it looks at the control that the organisation has over the tortfeasor. Phillips correctly identified...
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