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24 February 2014
Recent cases are changing the landscape of vicarious liability claims but have introduced less, not more, certainty. Rosalind Coe QC and Patricia Leonard report
The doctrine of vicarious liability has been developing in recent years, particularly in claims for historic sexual abuse. While this development is to be welcomed, the parameters of the doctrine are now less clear.
In Various Claimants v The Catholic Child Welfare Society and The Institute of the Brothers of the Christian Schools (2010) - known as ’the St William’s litigation’ - the Court of Appeal (CoA), developing the principle in Lister v Hesley Hall Ltd (2010), confirmed that there can be dual vicarious liability and dismissed the argument that this is limited to employment relationships.
Nevertheless, on the facts the court did not apply the doctrine to members of an institute of lay brothers.
In Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church (2010) the CoA imposed vicarious liability for acts of child abuse committed by a Roman Catholic priest, even though the claimant was not Roman Catholic nor involved with the church. The connection between the tortfeasor and the acts was clearly weaker than in Lister, but the court concluded that the ’close connection’ test was satisfied and that it was fair and just to impose vicarious liability on the archdiocese.
The court was influenced by the priest’s wearing clerical garb when with the claimant, his degree of general moral authority, his duty to evangelise and his responsibility for youth work.
In other fields the principles now confirmed in the St William’s litigation have been developed by the CoA. In Hawley v Luminar Leisure Ltd (2006) it held that a nightclub exercised such control over a bouncer’s activities that, even though he was an employee of a security company, he could be considered to be the nightclub’s “temporary deemed employee”.
In Viasystems (Tyneside) Ltd v Thermal Transfers (Northern) Ltd (2005) the court expanded significantly the doctrine, finding that dual vicarious liability is possible. It arises where there is a situation of shared control and “it is just for both employers to share a dual vicarious liability”. The inquiry should concentrate on the relevant act and whose responsibility it was to prevent it.
Saint and sinners
In light of these developments the claimants and the statutory managers of the school in the St William’s litigation (the ’Middlesbrough defendants’) argued that the De La Salle Brotherhood (the ’institute’), a Catholic order of lay teachers that provided the school with teachers and headmasters, should be vicariously liable for abuse by the brothers. It was argued that this was justified by the relationship between the institute and the brothers.
The brothers took vows of obedience, chastity and poverty. They lived their lives according to the institute’s rule, which governed all aspects of their personal lives and teaching duties. In addition, the brothers lived onsite full-time and covenanted their salaries to the institute. The institute placed brothers in and removed them from schools, sometimes against the wishes of managers, and inspected the brothers in the school as well as their community.
One brother accused of indecent assault was ’dealt with’ by the institute. He was removed from the school. Thus, although formally employed by the managers, the brothers certainly had two masters.
De La Salle’s mission is the education of children, which it fulfils through the work of the brothers, from whom it benefits financially and over whom it exercises control. It was further argued that the institute had assumed responsibility towards the boys.
This relationship is surely at least as close as employment. If vicarious liability is not confined to employment it seems surprising that it was not applied here. However, the CoA did not consider that the relationship between the institute and the brothers justified its imposition.
Moreover, the court confirmed that vicarious liability is “a loss distribution device”. As in the test for primary liability, the notions of fairness and justice are key. Nevertheless, the CoA analysed the factual matrix and concluded that, where the Middlesbrough defendants were the statutory body and formally employed the brothers, they alone were vicariously liable.
The court also dismissed the ’close connection’ argument. It stated that members of the institute “scattered all over the world did not have the required interest in the business of St William’s such as would create the necessary close connection between them and any torts committed by any brother teacher on its staff”.
Again, this is a somewhat surprising conclusion, especially as this did not concern the court in Maga. Many large organisations operate worldwide and may be vicariously liable for their individual members. Why should the fact of employment rather than membership of an international unincorporated organisation affect the principle?
Thus, while English courts have built on and developed the traditional Salmond test, focusing more on policy and the concepts of justice and fairness, there remains uncertainty for claimants as to where the boundaries of vicarious liability lie.
Don’t look back
This uncertainty was echoed by the CoA in the recent case of Brink’s Global Services Inc and Others v Igrox Ltd and Another (2010), where the court counselled against relying wholly on previous authorities in light of the current more flexible approach to vicarious liability.
It is therefore advisable for claimants to look to more recent jurisprudence when making use of the court’s more flexible approach to the doctrine.
Rosalind Coe QC and Patricia Leonard are barristers at 7 Bedford Row