The Catholic Child Welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools and others

Vicarious liability for sexual abuse is not confined to conventional employer–employee relationships; rather, a body that puts a person into a position to further its enterprise and thereby creates or materially increases the risk of abuse can be vicariously liable where there is a close connection between the relationship and the wrongful act. Dual vicarious liability is possible where the tortfeasor is so integrated into the activities of two entities that both have responsibility for the risk.

This appeal concerned whether an unincorporated religious Institute could be vicariously liable for sexual and physical abuse committed by its members while serving as teachers at a residential school. The underlying claims were brought by numerous former pupils against two sets of defendants: local managers (the Middlesbrough defendants), who employed the brothers for the school, and the De La Salle defendants, representing the Institute and its associated trusts. The High Court (Hawkesworth J) and the Court of Appeal found that the Institute was not vicariously liable; the Supreme Court considered whether the relationship between brothers and the Institute was akin to employment and whether there was a sufficiently close connection between that relationship and the abuse to impose vicarious liability. The Court allowed the appeal and held that the Institute shared vicarious liability with the local defendants.

1. Disposition. The appeal is allowed. The Institute is vicariously liable, jointly with the Middlesbrough defendants, for the sexual and physical abuse committed by brothers at the school. (See paras 88–94.)
2. Stage 1 — Relationship. The court held that the relationship between the teaching brothers and the Institute was sufficiently akin to employment to satisfy stage 1 of the vicarious liability test. The Institute possessed a hierarchical structure, directed the deployment of brothers to teach, dictated standards of conduct through its Rules and retained the financial and organisational framework that made the brothers’ teaching activity central to the Institute’s mission. The differences arising from vows rather than contracts and from brothers remitting earnings to the Institute did not prevent the relationship being treated as akin to employment. (See paras 33, 56–61.)
3. Stage 2 — Close connection/enterprise risk. The court endorsed an approach that requires identification of a close causal connection between the relationship and the wrongful act. It adopted and developed the “enterprise risk” principle: where an organisation places a person into activities that further its own enterprise and thereby creates or materially increases the risk of a type of wrongdoing, a strong connection can exist such that vicarious liability follows. The court held that creation or augmentation of risk is not merely a policy consideration but may be a central factual element in demonstrating the requisite close connection. (See paras 62–77, 86–87.)
4. Application to the facts. The Institute placed brothers in residential teaching roles, often as headmasters living on school premises, thereby integrating them into the Institute’s enterprise and exposing vulnerable pupils to persons in positions of authority and proximity. That placement materially increased the risk of abuse; the abuse was closely connected to the functions the brothers were required to perform. On these facts the Institute was rightly held vicariously liable. (See paras 91–94.)
5. Dual liability and precedent. The Court accepted that dual vicarious liability is possible (Viasystems) and preferred the analytical approach that treats the relationship with each potential defendant independently, assessing whether each relationship is capable of giving rise to vicarious liability, applying an Rix LJ–style synthesis rather than the more stringent Mersey Docks test for transfer of liability. The court applied and reconciled relevant authorities (including Lister, Bazley, John Doe v Bennett and Dubai Aluminium) in support of its reasoning. (See paras 40–46, 64–77.)
6. Practical and policy considerations. The court emphasised the remedial and deterrent policy aims of vicarious liability: distributing loss to defendants with means to compensate and incentivising appropriate selection and supervision where an enterprise places workers in proximity to vulnerable persons. These policy aims support, but do not replace, the factual legal test of a close connection. (See paras 34–36, 83–87.)
7. Order. Appeal allowed; the finding that the De La Salle defendants are vicariously liable is restored. The court did not disturb the Middlesbrough defendants’ liability. (See para 94.)

• Supreme Court: Allowed the appeal and held Institute vicariously liable ([2012] UKSC 56).
• Court of Appeal: [2010] EWCA Civ 1106 — held that the De La Salle defendants were not vicariously liable (leading judgment Hughes LJ).
• High Court (King's Bench/Queen's Bench Division): HHJ Hawkesworth QC — first instance trial of the preliminary issue; factual findings recorded and formed basis of appeal.