The Catholic Child Welfare Society v Various Claimants & The Institute of the Brothers of the Christian Schools [2012] UKSC 56 (21 November 2012)

Victims of child abuse at a residential school sued the religious institute whose members committed the abuse. The Supreme Court held the institute vicariously liable, finding the relationship between the institute and its members was 'akin to employment', broadening liability beyond formal employment.

Facts

Multiple claimants brought actions for damages arising from physical and sexual abuse they suffered as children while resident at St William’s Community Home in Yorkshire between the 1950s and 1990s. The abuse was perpetrated by members of the Institute of the Brothers of the Christian Schools (‘the Institute’), a Roman Catholic religious order. The members, known as Brothers, had taken vows of chastity, poverty, and obedience. The Institute assigned the Brothers to teach at the school, which was managed by a separate board of managers but was organised based on the Institute’s principles. The Brothers were not paid a salary; the Institute was paid a capitation fee for their services and in turn provided for all their material needs. The claimants argued that the Institute should be held vicariously liable for the abuse committed by its members.

Issues

The Supreme Court had to determine two primary legal issues:

1. Whether the Institute, which was not the employer of the Brothers in a conventional contractual sense, could be held vicariously liable for the torts committed by them. This required the court to consider if vicarious liability could extend to relationships that are ‘akin to employment’.
2. Whether it was possible for two different defendants (in this case, the Institute and the school’s managers) to be held vicariously liable for the same tort committed by one individual (dual vicarious liability).

Judgment

The Supreme Court unanimously dismissed the Institute’s appeal and allowed the claimants’ cross-appeal, holding the Institute vicariously liable for the abuse committed by the Brothers.

Relationship Akin to Employment

Lord Phillips, giving the single judgment of the court, held that the principle of vicarious liability is not confined to strict contracts of employment but can apply to relationships which are ‘akin to employment’. He identified five policy reasons that justify the imposition of vicarious liability: (1) the ’employer’ is more likely to have the means to compensate the victim; (2) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (3) the employee’s activity is likely to be part of the business activity of the employer; (4) the employer, by employing the employee, created the risk of the tort; (5) the employee will have been, to a greater or lesser degree, under the control of the employer.

Applying these principles, the court found the relationship between the Institute and the Brothers was one that could give rise to vicarious liability. Lord Phillips stated:

The five incidents that I have identified at para 35 were all present in the relationship between the brothers and the Institute. (i) The Institute was more likely to have the means to compensate the victims of the brothers’ torts than the brothers themselves. (ii) The torts were committed by the brothers as a result of the activity that the Institute had assigned to them… (iii) That activity was being carried on by the brothers for the furtherance of the objective, or ‘mission’, of the Institute. (iv) The risk that the brothers would commit the torts of the kind that they did was created by the Institute when it placed them in the school… (v) The Institute exercised a degree of control over the brothers…

The ‘Close Connection’ Test

The court affirmed the ‘close connection’ test from Lister v Hesley Hall Ltd. The Brothers’ roles were to provide care and education, and their positions of authority and trust were central to the abuse they perpetrated. The court found that the abuse was inextricably interwoven with the duties they were assigned by the Institute. The Institute had created the risk by placing the Brothers in a position where they could commit such abuse, thus establishing a sufficiently close connection between their wrongdoing and the relationship with the Institute.

Dual Vicarious Liability

The Court held that there was no legal principle preventing the imposition of vicarious liability on two separate defendants for the same tort. Both the Institute and the school’s managers had a relationship with the Brothers that satisfied the criteria for vicarious liability. The managers directed their day-to-day work, while the Institute directed their vocations and lives more broadly. As both relationships contributed to the situation in which the abuse occurred, it was just and fair for both to be held liable.

There is no reason in principle why the employee’s tort should not at the same time be the tort of two different employers… Where the employee has two employers and his tort is committed in the course of the employment of both of them, there is no reason why both should not be vicariously liable for his tort, with the right of one to claim a contribution from the other.

Implications

This landmark decision significantly expanded the scope of vicarious liability in English law. By establishing the ‘akin to employment’ test, the judgment confirmed that liability can be imposed on organisations, particularly religious bodies and unincorporated associations, for wrongful acts committed by their members, even without a formal employment contract. It clarifies that the substance of a relationship, its inherent risks, and control are more important than its form. The confirmation of dual vicarious liability also offers greater recourse for claimants, allowing them to seek compensation from multiple responsible parties, who can then apportion liability between themselves.

Verdict: The Supreme Court dismissed the Institute’s appeal, holding the Institute vicariously liable for the abuse committed by the Brothers. The claimants’ appeal was allowed, establishing that the school’s managers could also be held vicariously liable, thus confirming the principle of dual vicarious liability.

Source: The Catholic Child Welfare Society v Various Claimants & The Institute of the Brothers of the Christian Schools [2012] UKSC 56 (21 November 2012)