Appeal Court Verdict Could Open the Door for Vicarious Liability Claimants

The Guardian
October 27, 2010

A preliminary ruling in the St Williams's boys school abuse case has ramifications for future legal actions against the care system

This week, the question of who is potentially liable for the alleged physical and sexual abuse of 150 pupils at St William's boys' school in east Yorkshire between 1960 and 1992 was considered by the court of appeal. In 2004 the main abuser, Brother James Carragher, headmaster during this period, was convicted of abusing boys at the home.A judge in a preliminary hearing last year ruled that, if the claimants succeed in this litigation, the Catholic Child Welfare Society and the Middlesbrough Diocesan Rescue Society will be liable on the basis that they ran, controlled and managed the school. They face an ?8m compensation claim.

The Middlesbrough defendants (as the court called them) and the claimants appealed against this decision, arguing that the De La Salle Institute, a Catholic order of lay brothers, should also be vicariously liable because it was involved in running the school and provided teaching staff. The court of appeal disagreed, holding that the religious order was not vicariously liable for any acts of abuse carried out by the De La Salle brothers and others.

Vicarious liability is sometimes described as "no fault" liability. In abuse cases it allows a victim to recover from a third party, such as a local authority employer, on the basis of that party's relationship with the abuser. This is despite the fact that the abuser's acts were not authorised, allowed by, or even known to the local authority employer. With this in mind, the judgment has ramifications for future abuse cases, particularly within the care system.

While vicarious liability was not extended to the De la Salle Institute on the facts of this case, the judgment is good news for claimants generally. The court of appeal confirmed that a deliberate, unauthorised act can attract vicarious liability, and refused to accept that vicarious liability is limited to formal employment relationships.

Some may see this as a missed opportunity. A number of examples of the institute's control and discipline were provided during the appeal. The court heard that the brothers took a strict vow of obedience and that their lives were governed by very strict rules, which included directives on how to dress, pray and conduct themselves. The institute frequently nominated particular brothers for teaching positions within the school, and a brother was headmaster throughout the period when the abuse is alleged to have happened. On one occasion, the De La Salle Institute assumed responsibility for investigating and dealing with an allegation of indecent assault, rather than leaving it to the managers of the school.

Given the evidence pointing to the degree of control and discipline that the De La Salle Institute exercised over its members, it would not have been an unimaginable leap to impose liability in this case on the basis of fairness. So why did the court rule that they were not liable? The court found that the brotherhood had not undertaken, and then delegated, "a duty of caring" for the pupils, and that they were not teaching on behalf of the other members of the brotherhood "scattered all over the world".

This judgment will, however, have wider implications for religious orders. While the fact that a religious order is involved in teaching or caring for children is unlikely to be enough to ensure it is legally responsible for any abuse, vicarious liability of institutions such as religious orders has not been ruled out. The court of appeal said that the task of imposing legal responsibility carries a "high level of fact sensitivity", therefore a future case with slightly different facts might be enough to warrant the imposition of legal responsibility. So religious orders have not found a safe haven in the ongoing storm of historical sexual abuse.

The Middlesbrough defendants have indicated a possible appeal to the supreme court in order to establish the legal responsibility of the De La Salle Institute, and this is likely to cause some nervousness among religious orders.

Rosalind Coe QC and Patricia Leonard are barristers at 7 Bedford Row. Both are currently representing the claimants in a group action by former pupils who resided at St William's boys' school


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