Update | Personal injury: vicarious liability outside employer and employee relationships

As we approached the end of 2012, the Supreme Court handed down judgement in The Catholic Child Welfare Society & others v Various Claimants & The Institute of the Brothers of the Christian Schools & others [2012] UKSC 56.

Many eagerly awaited this judgment as the Supreme Court was expected to ?re-examine the tests for establishing vicarious liability outside the employer/employee paradigm.

This area has seen remarkable change, started by the House of Lords in Lister v Hesley Hall Ltd [2001] UKHL 22 where a defendant who employed a warden who abused boys at a school was found vicariously liable. This is despite the acts of abuse falling outside any of the daily tasks for which the warden was employed. The Lords therefore effectively widened the scope of negligent acts considered as being “in the course of employment” by finding that acts of abuse were “inextricably interwoven” with the warden’s duties of protecting pupils.

More recently, in JGE v Trustees of the Portsmouth Roman Catholic Diocesan [2012] EWCA 938, the Court of Appeal found the relationship between a parish priest and diocese was akin to employment even though the priest received no wage and was rarely supervised. This was because, amongst others, the diocese was considered to be an enterprise of which the priest was a part.

The Institute of Brother’s case arises from the alleged abuse by staff of some 150 or so pupils at the St Williams School, S, between 1958 and 1992. The claim was advanced against two groups of defendants: the so called, ‘Middlesbrough Defendants’, M, who took over management of S from 1973 and the second respondent, the Institute of the Brothers of the Christian Schools, IBC who never owned S, but provided many of its staff including the headmaster.

As M was the abuser’s employers, the court at first instance found they owed a duty of care. However, the judges in both the High Court and the Court of Appeal considered IBC owed no similar duty as it did not run S which meant IBC’s relationship with the abusers was not akin to employment.

The Supreme Court disagreed, ?noting IBC behaved more like a corporate body who directed the staff and the teaching being provided was in furtherance of IBC’s objectives. Also, as the risk of ?abuse was inherent in the teacher’s ?roles, it was considered to be in the ?course of employment.

While this was not the whole-scale re-examination many expected, this ruling has now affirmed the broader approach that will be adopted in such cases. Clearly therefore, the class of relationship that could be considered similar to employment is much wider as the courts will adopt a more general approach. Thankfully, this will provide redress for many who have been the unfortunate victims of abuse.

Occupier’s duty

Another area where claimants have been seeking to encourage the courts to consider establishing liability in non-employer/employee relationships is in asbestos disease cases.

In asbestos claims, it has always been traditional in the UK to sue the employer. In other jurisdictions such as the US, the position is different. The focus is on the manufacturer and claims are mainly submitted on a product liability basis. This exposed manufacturers to masses of claims causing many to enter administration. An example of this is the Johns Manville Corporation and during its insolvency proceedings, a trust was set up to fund any future claims.

This is in stark contrast to the UK where typically only employers, not manufacturers, are sued. Another unexplored area relates to possibility of suing occupiers. The High Court recently entered judgment against an occupier in Baker v Tate & Lyle Plc [2012] QBD which is understood to be the first time the court has found on this issue.

The previous reluctance to sue occupiers may have arisen due to the difficulties of establishing liability under the Occupier’s Liability Act 1957. This is clear from the Court of Appeal’s judgment in Fairchild v Glenhaven Funeral Services [2002] UKHL which confirmed the occupier’s duty arose from the physical state of the premises and not from any activity undertaken within it. Therefore, workers using or manufacturing asbestos products or materials, could not sue the occupier under this act.

There are further hurdles in common ?law as the courts have placed a less onerous duty on occupiers compared ?with employers. In particular, an employer is under a duty to find out about any potential risks whereas the occupier’s duty is not so strong.

Perhaps because of these hurdles, many have not fully appreciated or realised the potential for bringing claims under some of the other statutory regulations. However, the wording used in many regulations not only applies to employees but anyone else working in the same place. This is confirmed by an obiter dicta discussion in Fairchild. Here, the Court of Appeal accepted the occupier of a factory was liable under the Factories Act 1961 to an individual who was not an employee. However, it should be noted the occupier had already admitted liability so the issue was not contested.

In this case, Mr Baker, B, was employed by Climax Insulation & Packaging Ltd, and C as a labourer who assisted asbestos laggers. During the tax years 1963-64, C sent him to work at various places which included the Tate & Lyle (T) Sugar Factory in Silvertown, London. As in many other asbestos disease cases, T has long since ceased to trade and is impecunious. Also, its employer’s liability insurers could not be traced. This left B with no option but to pursue T.

In particular, it was pleaded T owed B duties under the Asbestos Regulations 1931 to provide adequate ventilation and also to not employ any young persons (B was aged 16 or 17 at the time) in any areas where asbestos is mixed, blended, or stripped; the latter tasks are commonly undertaken by laggers. They also claimed breaches under the Factories Act 1961 which required “so far as is reasonably practicable” there to be provided a safe means of access to every place and also that such places be kept safe for “any person working there”.

Senior Master Whitaker held T did owe duties as occupier under these regulations and because they had failed to serve any evidence of them complying with those duties, judgment was entered for B.

This case will provide much hope to many asbestos disease victims. The problems of identifying defendants ?and insurers can be insurmountable. Therefore, the possibility of suing an occupier is welcome. However, one potential difficulty may lie in claims involving cumulative diseases which include asbestosis (essentially a fibrosis of the lung) and lung cancer.

In these cases, a negligent defendant is only responsible for a proportion of the damages which usually equates to the percentage of asbestos exposure for which they are responsible. Therefore, if an individual worked for a company for many years and spent say a week at premises where there was asbestos at a time when the relevant regulations were in force, the damages for which the occupier would be responsible may be slight. Fortunately, this difficulty will not affect mesothelioma sufferers who are able to claim 100 per cent of their damages under the Compensation Act 2006.

Long latency period

Industrial disease claimants can also face difficult issues on limitation as shown in Court of Appeal decision of Patricia Gibson v Jobcentre Plus [2012] EWCA Civ 1885.

The claimant G issued proceedings against her employers, J in September 2006 claiming she suffered from repetitive strain injury (RSI) symptoms from December 2003 onwards. Her medical records on the other hand showed she experienced pain in her arms from 1998. Her GP wrote a letter at the time saying these symptoms showed she had either developed, or was going to develop, RSI.

He considered the GP letter was an indication that her employers might be liable which would have alerted her to the fact she may have a claim against them which satisfied the knowledge test under section 14 of the Limitation Act 1980.

However, both sides served expert evidence from consultant orthopaedic surgeons. J’s expert denied any association with RSI, claiming they were associated with osteoarthritis of the cervical spine.

G’s expert agreed osteoarthritis played ?a “substantial role”, but considered that after December 2003, her symptoms were RSI related. In his written report however, he did not address G’s arm symptoms before 2003.

At trial, and for the first time, he sought to distinguish the two, but the judges both at first instance and in the Court of Appeal were unconvinced by the basis of his assertions. It was held therefore that the same condition persisted from 1998 onwards meaning G failed on the limitation.

She was also not granted discretion under section 33 as it would be prejudicial to the defendant to go back to 1998 to investigate circumstances then.

Then, and as if to hammer the final the nail in the coffin, the court considered whether there had been any breach of statutory duty or negligence. It is not clear why the court considered this issue given their stance on limitation. In any event, no such breach was found, as, amongst others, there were no obvious features of G’s workplace which could cause the symptoms complained of.

This is unfortunately a common ?problem in industrial disease cases which gradually develop over a period of time. The discretion offered by section 33 offers some solace, but this is more useful in ?cases involving ‘long tail’ diseases where there is a long latency period between the breach and illness. In these cases, and ?given the time period that has passed already, it is more difficult for a defendant to argue prejudice. However, cases such as this can create many unjust outcomes as many claimants are unaware of the ins and outs of the limitation act.