On 21 November 2012, the Supreme Court handed down judgment in this appeal, and in doing so has given important guidance on the question of vicarious liability.
This litigation arose from allegations that various Claimants were physically and/or sexually abused by staff at the school they attended between 1958 and 1992. The Defendants fell into two categories: "The Managers" and "The Institute". The Managers were responsible for running the school. They employed the staff and accepted in the Supreme Court that they were vicariously liable for the actions of their employees. Whilst they were employed by the Managers, some staff was provided by The Institute, an unincorporated association of lay brothers.
Brothers usually lived in their own religious communities and took a vow of obedience which included undertaking to "go wherever I may be sent and to do whatever I may be assigned by the [Institute] or its superior". The Institute had its own hierarchy and rules of conduct. It was an agreed fact that "if a brother was sent to a school, managed by a third party, the Institute's control over his life remained complete".
The application of the doctrine of vicarious liability involves the synthesis of two stages. It is best to discuss the court's findings by applying them to those two stages:
Stage one – the relationship between the tortfeasor and the defendant – akin to employment?
The Institute argued that only a body managing a school and employing a Brother in that school as a teacher would have a sufficiently close relationship to that Brother teacher to be vicariously liable for his wrongdoing. The Supreme Court disagreed. Whilst the Institute could not control whether schools owned by third parties engaged Brothers as teachers it could control whether a Brother worked in a school which was prepared to engage him. The relationship had all of the essential elements of the relationship between an employer and an employee.
The Institute had a hierarchical structure and conducted its activities as if it were a corporate body. The Brothers were subject to the directions as to their employment within that hierarchical structure and the Institute directed the Brothers to undertake the teaching activity, and directed them to enter into teaching contracts with the Managers. The business and mission of the Institute was the common business and mission of every Brother who was a member. That was "the provision of a Christian education to boys". The Brothers undertook the employment with the Managers to further this objective/mission. The manner in which the Brother teachers were obliged to conduct themselves as teachers was dictated by the Institute's rules.
Stage two - examination of the connection which links the relationship between the defendant and the tortfeasor and the acts/omissions complained of
Historically this limb of the test has required consideration of whether or not the act complained of was closely enough connected with the tortfeasor's employment, and/or whether the act was committed in the course of his employment. The Supreme Court held that this was "not a borderline case. It is one where it is fair, just and reasonable... for the Institute to share... vicarious liability for the abuse committed by the Brothers" (paragraph 94). This was for the following reasons:
The Institute provided the headmasters and the running of the school was largely carried out by the headmasters. There was a very close connection between the relationship between the Brothers and the Institute and the employment of the Brothers as teachers in the school. The Brother headmaster was almost always the Director of the Institute's community. There was a very close connection between the Brother teachers' employment in the school and the sexual abuse that they committed.
- Whilst the judgment kills off any suggestion that the applicability of the doctrine is restricted solely to those who employ an abuser, the Institute had a great degree of control over the Brothers (arguably more so that an employer may have over an employee). The class of person, other than employers, who have a sufficient relationship for the doctrine to apply has not been extended. The court held that "The relationship between the Brothers and the Institute was much closer to that of employment than the relationship between the priest and the bishop in JGE" (paragraph 89). It seems unlikely that the doctrine will stretch much further than in JGE.
- Interestingly, the expansion of the doctrine seen in Maga v Archbishop of Birmingham and another  has perhaps now been reined in slightly. At paragraph 87 Lord Phillips states "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". This is a useful comment which may prevent the effects of this decision extending too far. The creation of the risk is merely one piece of the jigsaw which the courts will look at when considering the second limb of the test.
- At paragraph 61 Lord Phillips simplifies the approach to stage one of the test by stating "Providing that a Brother was acting for the common purpose of the Brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage one". That comment may be of concern to some other organisations, such as sports organisations where voluntary participation by coaches is common place. Whilst the element of control between the associations and their members is not as strong as that which is encountered with religious organisations, other member organisations may be vulnerable to future claims on the back of this judgment.
- Although it has always been argued that the relationship between the local authority or the fostering agency is not one of employment it is also conceivable that claimants will argue that the doctrine now applies to foster carers.
- The judgment does not specifically limit the slightly extended scope of the doctrine to abuse cases but, in the absence of exceptional circumstances, the effects of this development are unlikely to stray outside of the abuse arena in the immediate future.
For further information please contact:
Paul Donnelly, Associate on 0121 200 0439 or at firstname.lastname@example.org
Denise Brosnan, Partner on 0121 200 0415 or at email@example.com
Andrea Ward, Partner on 0191 233 9761 or at firstname.lastname@example.org
Mark Whittaker, Partner on 0207 645 9534 or at email@example.com
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