Historic sexual abuse, trustees and vicarious liability – the story continues

We posted last week on the causation and quantum hearing in Raggett v The Society of Jesus Trust 1929 for Roman Catholic Purposes & Anor [2012] EWHC 3132 (QB) (09 November 2012), which concerned a claim of damages for personal injury, loss and damage consequent upon sexual abuse when the claimant was a pupil at Preston Catholic College between 1969 and 1976. The issue has surfaced again but at a much higher level; today the Supreme Court handed down its judgment in Catholic Child Welfare Society & Ors v Various Claimants and The Institute of the Brothers of the Christian Schools [2012] UKSC 56.

The Institute, whose members are lay religious, was founded in 1680 to teach children. The question arising in this appeal was whether or not the Institute was vicariously liable for alleged acts of sexual and physical abuse of children by its members between 1952 and 1992 at St William’s School – a residential institution at Market Weighton for boys in need of care. The Institute did not own the school, which in 1973 became an assisted community home for children in the care of the local authority, managed by the Middlesbrough Diocesan Rescue Society until 1982, and thereafter by the Catholic Child Welfare Society (Diocese of Middlesbrough).

In 1990 the headmaster, Brother James, was expelled from the Institute after it was discovered he was guilty of systematic sexual abuse of boys in his care and in 1993 and 2004 he was convicted of numerous sexual offences against boys over a period of 20 years. The School was closed in 1994. Subsequently, 170 men have brought claims for damages in respect of alleged abuse, both against the managers of the school from 1973 (the “Middlesbrough Defendants”, who had inherited the statutory liabilities of the former managers and entered into contracts of employment with those teachers who were Christian Brothers) and against the Institute itself.

The brothers who taught at the school were not bound contractually to the Institute but to the Middlesbrough Defendants. On a preliminary issue the High Court held – and the Court of Appeal confirmed – that the Institute was not vicariously liable for the tortious acts committed by Christian Brothers at the school. The Middlesbrough Defendants appealed to the Supreme Court, arguing that vicarious liability should be shared between them and the Institute.

The Supreme Court allowed the appeal. Delivering the judgment of the Court, Lord Phillips began from the position that there were two factors to be examined in deciding whether or not  vicarious liability was established:

  • whether the relationship between the member and the Institute was one which was capable of giving rise to vicarious liability; and
  • the connection that linked the relationship between the member and the Institute with the member’s wrongful act or omission (para 21).
Furthermore:
“56. In the context of vicarious liability the relationship between the teaching brothers and the Institute had many of the elements, and all the essential elements, of the relationship between employer and employees:
  • The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body.
  • The teaching activity of the brothers was undertaken because the Provincial directed the brothers to undertake it. True it is that the brothers entered into contracts of employment with the Middlesbrough Defendants, but they did so because the Provincial required them to do so.
  • The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the Institute.
  • The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules.”

He next observed (at para 57) that the relationship between the teaching brothers and the Institute differed from that of employer and employee in that the brothers were bound to the Institute not by contract but by their vows – and, far from the Institute paying the brothers, they were obliged to transfer all their earnings to the Institute.  However, he did not regard those issues as material: “Indeed, they rendered the relationship between the brothers and the Institute closer than that of an employer and its employees” (para 58).

 He concluded:

  • that the necessary relationship between the brothers and the Institute and the close connection between that relationship and the abuse committed at the school had been made out (para 88);
  • that the relationship between the brothers and the Institute was much closer to that of employment than the relationship between the priest and the bishop in JGE, for which see below (para 89);
  • that the business and mission of the Institute – the provision of a Christian education to boys – was the common business and mission of every brother who was a member of it (paras 89 & 90);
  • that the relationship between the Institute and the brothers enabled the Institute to place the brothers in teaching positions and, in particular, in the position of headmaster at St William’s and there was a very close connection between the relationship between the brothers and the Institute and the employment of the brothers as teachers in the school (para 91);
  • that the children at the school were vulnerable: “The brother teachers were placed in the school to care for the educational and religious needs of these pupils. Abusing the boys in their care was diametrically opposed to those objectives but, paradoxically, that very fact was one of the factors that provided the necessary close connection between the abuse and the relationship between the brothers and the Institute that gives rise to vicarious liability on the part of the latter” (para 92); and
  • that there was a very close connection between the brother teachers’ employment in the school and the sexual abuse that, for present purposes, they must be assumed to have committed; and in the days before CRB checks the status of a brother was presumably treated by the managers as an assurance that children could safely be entrusted to his care (para 93).

In short, said His Lordship, “This is not a borderline case. It is one where it is fair, just and reasonable, by reason of the satisfaction of the relevant criteria, for the Institute to share with the Middlesbrough Defendants vicarious liability for the abuse committed by the brothers” (para 84). Appeal allowed.

Comment: The issue of claims for historic sexual abuse is controversial. We have already noted Lord Sumption’s dissenting judgment in  Birmingham City Council v Abdulla & Ors [2012] UKSC 47 (24 October 2012) on the grounds that “the decision of the deputy judge and the Court of Appeal [frustrated] the policy underlying the provisions of the Equal Pay Act relating to limitation” (para 36) and his defence of the concept of limitation on the grounds that “the litigation of stale claims is potentially a significant injustice” (paragraph 41). But the courts, as in Raggett, tend to take a fairly relaxed view of out-of-time claims of the sexual or physical abuse of children on the grounds that memories of abuse often remain buried for several years until a chance occurrence cause them to resurface.

A parallel case, JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012) has been marking time awaiting today’s judgment. In JGE the claimant sought damages for an alleged rape when resident at a children’s home in Hampshire between 1970 and 1972 by a priest who had since died; and the Court of Appeal held by two to one that the second defendant at first instance – the Trustees of the Portsmouth Roman Catholic Diocesan Trust – was vicariously liable for the alleged torts. That case might possibly go to the Supreme Court; but if it does, the effect of today’s judgment in Catholic Child Welfare Society will probably be to make a successful appeal in JGE less likely.

2 thoughts on “Historic sexual abuse, trustees and vicarious liability – the story continues

  1. Obiter J has posted an analysis of the judgment which is well worth reading. The New Law Journal suggests that the effect of the SC’s judgment is to extend the scope of vicarious liability and that this will make civil claims by victims of Jimmy Savile more likely.

  2. Pingback: Religion and Law roundup: 25th November | Law & Religion UK

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