Supreme Court backs extension of vicarious liability to sex abuse cases

The Supreme Court has given its backing to the development of vicarious liability to cover sex abuse cases.

The case involved a Yorkshire children’s home managed by the Catholic Child Welfare Society, but with a headmaster and other teachers from the Institute of the Brothers of the Christian Schools, founded by Jean-Baptiste De La Salle in 1680.

Giving judgment today, Lord Phillips said the courts had “succeeded in developing the law of vicarious liability so as to ensure that a remedy for the harm caused by abuse is provided by those that should fairly bear that liability”.

He said it was “particularly significant” that the Institute provided the school’s headmasters, because the running of the school was largely carried out by them.

“The brother headmaster was almost always the director of the Institute’s community, living on the school premises,” Lord Phillips said.

“There was thus a very close connection between the relationship between the brothers and the Institute and the employment of the brothers as teachers in the school.

“Living cloistered on the school premises were vulnerable boys. They were triply vulnerable. They were vulnerable because they were children in a school; they were vulnerable because they were virtually prisoners in the school; and they were vulnerable because their personal histories made it even less likely that if they attempted to disclose what was happening to them they would be believed.”

Delivering judgment on behalf of the Supreme Court in Catholic Child Welfare Society and others v The Institute of the Brothers of the Christian Schools [2012] UKSC 56,

Lord Phillips said the claims of sex abuse at St William’s school in Market Weighton were brought by 170 men and related to the period 1958 to 1992.

He said the High Court and Court of Appeal held that the organisations responsible for the management of the school, including the Catholic Child Welfare Society, were vicariously liable but not the Institute.

“Where those who have abused children have been members of a particular church or religious order and have committed the abuse in the course of carrying out activities in that capacity claimants have had difficulty in establishing the conventional relationship of employer/employee.

“What has weighed with the courts has been the fact that the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them both as teachers and as men of god.”

Lord Phillips said the precise criteria for imposing vicariously liability for sex abuse were “still in the course of refinement by judicial decision” but a common theme had emerged through case law both at home and abroad.

“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 own 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 thus involves a strong causative link.”

Lord Phillips allowed the Catholic Child Welfare Society’s appeal. Lady Hale and Lords Kerr, Wilson and Carnwath contributed to the judgment.