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Catholic Child Welfare Society v Various Claimants & The Institute of the Brothers of the Christian Schools & Ors, Supreme Court, 21 November 2012

7 December 2012
The issues

Sexual abuse – vicarious liability

The facts

The institute had been founded for the purposes of teaching children. In law it was an unincorporated association. It had corporate features, including a hierarchy of authority. Claims against the institute had been brought by 170 men in respect of abuse to which they allege they were subjected to at a residential institution at Market Weighton for boys in need of care called St Williams between 1958 and 1992.

Was the relationship between the individual brothers who taught at the school, and the institute, such as to give rise to vicarious liability on the part of the Institute for acts of sexual abuse committed in the school?

The claims were brought against two groups of defendants. The first group consisted of the ‘Middlesbrough defendants’ who took over the management of the school in 1973, inheriting under statute the liabilities of the managers of the school before that date. They had been held at first instance to be vicariously liable for acts of abuse by teachers. That finding was not challenged. They appealed however for the purposes of challenging the judge’s finding that the second group of defendants, the ‘De la Salle defendants’, were not also vicariously liable for the acts of abuse committed by the members of the institute. The head of the institute was the Superior General in Rome, elected by the General Chapter of the Brothers, which was itself made up of elected representatives of all ‘brothers’. For the purposes of administration, the institute was divided into districts, called provinces, each headed by a ‘provincial’. Within the province the brothers live in communities, each headed by a director. The head teacher and some other teachers at the school were supplied by the institute. The alleged abusers included institute brothers as well as non-institute members of staff.

Vicarious liability required a two stage test. The first stage was to consider the relationship of D1 and D2 to see whether it was one that was capable of giving rise to vicarious liability. The second stage required an examination of the connection that linked the relationship between D1 and D2 and the act or omission of D1.

Was the relationship between the individual brothers who taught at the school, and the institute, such as to give rise to vicarious liability on the part of the Institute for acts of sexual abuse committed in the school? The first stage of the enquiry was to consider the essential elements of the relationship.

The relationship between the teaching brothers and the institute had many of the elements, and all of the essential elements, of the relationship between employer and employees:

  1. The institute was sub-divided into hierarchical structure and conducted its activities as if it were a corporate body.
  2. The teaching activity of the brothers was undertaken because the provincial directed the brothers to undertake it.
  3. The teaching activity undertaken by the brothers was in furtherance of the objective of the institute.
  4. The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute’s rules.

There were differences. The brothers were bound to the institute by their vows, not by contract. The brothers were not paid by the institute but entered into deeds under which they were obliged to transfer all of their earnings to the institute. The institute catered for their needs from this fund.

Neither difference was material however and indeed they rendered the relationship between the brothers and the institute closer than that of an employer and its employees. For these reasons the Supreme Court considered that the relationship between the teaching brothers and the institute was sufficiently akin to that of employer and employees to satisfy the first stage of the test of vicarious liability. The second stage required an examination of the connection between the acts of abuse and the relationship between the brothers and the institute.

Lister v Hesley Hall Ltd was a decision of the House of Lords which had reversed previous authority in respect of the test for vicarious liability. It was not easy to deduce from Lister the precise criteria that would give rise to vicarious liability for sexual abuse. The test of ‘close connection’ approved by all members of the house said nothing about the nature of the connection. Only one of the law lords, Lord Millett, expressly endorsed the approach taken by the Canadian Supreme Court in Bazley v Currie, in which it identified two principles of policy, the first being where an employer puts into the community an enterprise carrying with it certain risks and those risks materialised and caused injury; that it was fair that having created the enterprise and the risk, the employer should bear the loss. Second was that holding the employer vicariously liable might have a deterrent effect causing employers to exercise a greater degree of care in relation to the appointment and supervision of employees.

The precise criteria for imposing vicarious liability for sexual abuse was still in the course of refinement by the courts. However, starting with the decision of the Supreme Court of Canada, a common theme could be traced through most of the cases. Vicarious liability were to be 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, had done so in a manner which had 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 tort feasor and the acts of abuse involved a strong causative link. These were the criteria that established the necessary close connection between relationship and abuse. Creation of risk was not enough of itself to give rise to vicarious liability for abuse, but it was always likely to be an important element in the facts that gave rise to such liability. In this case, both the necessary relationship between the brothers and the institute and the close connection between the relationship and the abuse committed at the school had been made out.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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