Vicarious Liability — Various Claimants v Catholic Child Welfare Society

Facts

The claimants were boys who had been pupils in the 1970s at St William's School, a residential school for boys with emotional and behavioural difficulties. The school was managed by the Catholic Child Welfare Society, a diocesan body. The Institute of the Brothers of the Christian Schools, a religious order, supplied members of the order, called Brothers, to teach at the school, including the headmaster. The claimants alleged that they had been sexually abused by Brothers who taught there, and sued the Institute and the Society.

Issue

Whether the Institute could be vicariously liable for torts committed by its members at the school although they were not its employees in the legal sense, and whether the sexual abuse was sufficiently closely connected with the relationship to make it fair to hold the Institute liable; and whether more than one defendant could be vicariously liable for the same tort.

Held

The Institute was vicariously liable for the abuse committed by its Brothers. The relationship between the Institute and the Brothers was one akin to employment, and the abuse was closely connected with the activities that the Brothers were carrying out as teachers. The Court accepted that two defendants may each be vicariously liable for the same wrong.

Ratio

• Vicarious liability is not confined to contracts of employment: it extends to a relationship that is akin to employment, which is shown by features such as the tortfeasor carrying out activities as an integral part of the defendant's business and for its benefit, in circumstances where the defendant has created the risk of the tort and the tortfeasor is under its control.
• Two or more defendants may be vicariously liable for the same tort committed by one individual, because the relationship of each with the individual may satisfy the requirements for vicarious liability.

The judgments

Key reasoning

• The policy reasons for vicarious liability apply where a person carries out activities as an integral part of the business of another and for its benefit, and that does not depend on the formality of a contract of employment.
• The Institute was an organisation which undertook the work of teaching, in line with its aims, and the Brothers were bound by vows of obedience, so that the Institute had control over their work, and the abuse of the pupils was a risk created by placing the Brothers in teaching roles.
• The fact that the Society might also be vicariously liable did not prevent liability from falling on the Institute, because the question for each defendant is whether its relationship with the wrongdoer meets the test, and both may do so.

Where it fits in the module

In Tort (FHS), on Employment and relationships akin to employment, Catholic Child Welfare Society is the leading authority on the extension of vicarious liability. It is read with Lister v Hesley Hall Ltd [2001] UKHL 22, Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, Cox v Ministry of Justice [2016] UKSC 10, Armes v Nottinghamshire CC [2017] UKSC 60, Barclays Bank plc v Various Claimants [2020] UKSC 13 and Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15. Candidates consider whether the five incidents are a test or a list of factors, how far liability should extend to independent contractors and volunteers, and whether the policy underlying vicarious liability is deterrence, enterprise risk, loss distribution or something else.

Criticisms

• The test of relationships akin to employment is vague, and the five incidents are not a clear set of conditions, so it is uncertain when a relationship will be treated as close enough, leading to inconsistent decisions in later cases.
• The deep pockets reasoning that the defendant is likely to have means is not a principle of fault and, if given weight, would extend liability to any wealthy organisation connected with a wrongdoer.
• Permitting dual vicarious liability makes it unclear which institution should bear the loss and insure against it, and risks imposing liability on bodies that did not control the wrongdoer's conduct.
• Placing liability on a religious order for abuse that the order opposed, in a relationship founded on vows and not on commercial exchange, goes beyond the economic rationale of enterprise liability that the court itself invoked.