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

Vicarious liability is not confined to a contract of employment. A relationship may suffice where its essential incidents make it akin to employment. Relevant considerations include whether the tortfeasor furthered the defendant’s activities, was integrated into its organisation, created risks on its behalf and remained subject to its direction.

Where two defendants may be liable, the tortfeasor’s relationship with each must be assessed independently. For child sexual abuse, the close-connection requirement is satisfied where the defendant uses the abuser to advance its activities in circumstances which create or significantly enhance the risk of abuse. Risk creation alone is insufficient, but is ordinarily important. A religious institute may therefore share liability where it directs members to teach and places them in authority over vulnerable children.

The claims were brought by 170 men alleging physical and sexual abuse at St William’s residential school between 1958 and 1992. Most alleged that members of the Institute of the Brothers of the Christian Schools had abused them while serving as teachers or headmasters.

The school’s managers employed the brothers and had been held vicariously liable. The High Court and the Court of Appeal, in [2010] EWCA Civ 1106, held that the Institute was not additionally liable. The Middlesbrough Defendants appealed that conclusion. The claimants did not participate in the appeal.

The central issues were whether the relationship between the Institute and its teaching brothers was capable of attracting vicarious liability, and whether that relationship was sufficiently connected with the alleged abuse.

1. Appeal allowed unanimously. Lord Phillips delivered the judgment, with which Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agreed. The Institute was required to share with the Middlesbrough Defendants vicarious liability for abuse committed by its brothers.

2. Vicarious liability required a synthesis of two stages. The court first had to decide whether the relationship between the tortfeasor and the defendant was capable of attracting vicarious liability. It then had to examine the connection between that relationship and the tort. The relevant connection was not merely between the defendant and the tort, but between the relationship itself and the tort: paras 20–22.

3. A contract of employment was not essential. A relationship could attract liability where it contained the essential incidents of employment. Those incidents included the defendant’s means to compensate, activity undertaken on its behalf and as part of its enterprise, creation of the relevant risk, and control. Modern control concerned what activity was undertaken, rather than detailed direction about how it was performed: paras 34–36 and 47.

4. Dual vicarious liability did not depend upon the stringent transfer-of-control test in Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1. Each defendant’s relationship with the tortfeasor had to be examined independently. In Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151, Rix LJ’s organisational approach was preferable to May LJ’s reliance on control: paras 37–45.

5. The Institute’s relationship with the brothers was akin to employment and, in important respects, closer. Its hierarchy directed where they taught; its rules governed their conduct; their teaching advanced its mission; and they transferred their earnings to funds from which their needs and the teaching mission were supported. Their vows, rather than contracts, supplied the bond. The Institute could also be liable as an unincorporated association where a brother acted for its common purpose: paras 56–61.

6. At the second stage, the close-connection test for sexual abuse incorporated enterprise risk. Drawing upon Lister v Hesley Hall Ltd [2001] UKHL 22, Bazley v Curry (1999) 174 DLR (4th) 45 and related authorities, liability arose where the defendant used the abuser to advance its enterprise or interests in a manner which created or significantly enhanced the risk of the abuse. Risk creation was not sufficient by itself, but was an important criterion and supplied a strong causative link: paras 62–87.

7. The Institute placed brothers, including headmasters, in positions of authority and close physical proximity to exceptionally vulnerable boys. Their religious status encouraged the school’s managers to entrust the boys to them. Although abuse was diametrically opposed to the Institute’s mission and rules, those responsibilities and the resulting trust greatly enhanced the risk. This was not a borderline case; imposing shared liability was fair, just and reasonable: paras 88–94.

1. United Kingdom Supreme Court: In The Catholic Child Welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools and others [2012] UKSC 56, the court unanimously allowed the appeal and held the Institute jointly vicariously liable with the Middlesbrough Defendants.
2. Court of Appeal: In [2010] EWCA Civ 1106, the court confirmed that the Institute was not vicariously liable for abuse committed by its teaching brothers.
3. High Court: His Honour Judge Hawkesworth QC held the school managers vicariously liable but rejected additional vicarious liability on the part of the Institute. No citation is stated in the judgment.