CATHOLIC CHILD WELFARE SOCIETY V VARIOUS CLAIMANTS AND THE INSTITUTE OF THE BROTHERS OF THE CHRISTIAN SCHOOLS AND OTHERS [2012] UKSC 56
FACTS:-
The case concerned claims brought by 170 men in respect of abuse to which they alleged they were subjected at St William’s school between 1958 and 1992. There were two groups of Defendants. The first group consisted of the Middlesbrough Defendants, who took over the management of the school in 1973 and inherited the liabilities of the previous managers. They were held at first instance to be vicariously liable for abuse committed by teachers, which finding was not challenged. However the Claimants sought to challenge the trial judge’s finding (confirmed by the Court of Appeal) that the second group of Defendants, the “De La Salle” Defendants (the Brothers of the Christian Schools or the Institute) were not also vicariously liable for acts of abuse committed by their teachers.
JUDGEMENT:-
Lord Phillips (with whom the other law lords agreed) gave judgment. He considered the organisation and rules of the De La Salle Defendants (“the Institute”), who were in effect a holy order with their Superior General in Rome. The order was set up to teach children and owned a number of schools, but it never actually owned St Williams. The running of this school was delegated to the Institute, and in 1933 it became an approved school for the purposes of the Children and Young Persons Act 1933. The regime then changed in 1973 when St Williams became an assisted community home. Management was vested in the Middlesbrough Diocesan Rescue Society (“MDRS”) and then in 1982 that changed to the Catholic Child Welfare Society (“CCWS”). Over the years the proportion of brother teachers diminished and the school closed in 1994.
The Institute could not control whether schools owned by third parties engaged its brothers as teachers, but it could control whether a brother worked in a school, which was prepared to engage him and they had complete control on what he did. Because the managers of St Williams were keen to have a brother as a headmaster, the Institute in effect determined who the headmaster of the school should be.
Lord Phillips said that the law of vicarious liability was on the move, and he considered the latest developments in particular the case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938. There were two stages to the test:-
· The relationship of the brothers with the Institute
· The connection between that relationship and the acts of abuse
In relation to the identity of the Institute, Lord Phillips said that it was more realistic to view the brothers as members of the relevant unincorporated association rather than the Order as a whole. However he doubted it made any difference in principle. It was appropriate to approach this case as if the Institute were a corporate body existing to perform the function of providing a Christian education to boys, able to own property and in fact, possessing substantial assets.
Lord Phillips considered the first stage of the test. Where the Defendant (here the Institute) and the tortfeasor were not bound by a contract of employment, but their relationship had the same incidents, that relationship could properly give rise to vicarious liability on the ground was it was akin to that between an employer and an employee. That was the approach adopted by the Court of Appeal in JGE. In fact the case for finding vicarious liability in this case was much stronger than in JGE because of the close means of control the Institute exercised over its brothers. Consequently Stage 1 was satisfied.
In relation to Stage 2, Lord Phillips considered the caselaw including the case of Lister v Hesley Hall Ltd [2002] 1 AC 215. In that case, Lord Millett in the House of Lords appeared to endorse the idea that if an organisation creates a risk of abuse by its own enterprise, that would form the basis of a finding of vicarious liability. Lord Phillips said that a common theme could be traced through most of the cases to which he had referred. Vicarious liability would be imposed where a Defendant, whose relationship with the abuse put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the Defendant and the tortfeasor and the acts of the abuse thus involves a strong causative link. Creation of risk was not enough, but it was always likely to be an important element.
Consequently the Institute would be vicariously liable for the abuse carried out by the brothers. They would share that responsibility with the Middlesbrough Defendants.
FACTS:-
The case concerned claims brought by 170 men in respect of abuse to which they alleged they were subjected at St William’s school between 1958 and 1992. There were two groups of Defendants. The first group consisted of the Middlesbrough Defendants, who took over the management of the school in 1973 and inherited the liabilities of the previous managers. They were held at first instance to be vicariously liable for abuse committed by teachers, which finding was not challenged. However the Claimants sought to challenge the trial judge’s finding (confirmed by the Court of Appeal) that the second group of Defendants, the “De La Salle” Defendants (the Brothers of the Christian Schools or the Institute) were not also vicariously liable for acts of abuse committed by their teachers.
JUDGEMENT:-
Lord Phillips (with whom the other law lords agreed) gave judgment. He considered the organisation and rules of the De La Salle Defendants (“the Institute”), who were in effect a holy order with their Superior General in Rome. The order was set up to teach children and owned a number of schools, but it never actually owned St Williams. The running of this school was delegated to the Institute, and in 1933 it became an approved school for the purposes of the Children and Young Persons Act 1933. The regime then changed in 1973 when St Williams became an assisted community home. Management was vested in the Middlesbrough Diocesan Rescue Society (“MDRS”) and then in 1982 that changed to the Catholic Child Welfare Society (“CCWS”). Over the years the proportion of brother teachers diminished and the school closed in 1994.
The Institute could not control whether schools owned by third parties engaged its brothers as teachers, but it could control whether a brother worked in a school, which was prepared to engage him and they had complete control on what he did. Because the managers of St Williams were keen to have a brother as a headmaster, the Institute in effect determined who the headmaster of the school should be.
Lord Phillips said that the law of vicarious liability was on the move, and he considered the latest developments in particular the case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938. There were two stages to the test:-
· The relationship of the brothers with the Institute
· The connection between that relationship and the acts of abuse
In relation to the identity of the Institute, Lord Phillips said that it was more realistic to view the brothers as members of the relevant unincorporated association rather than the Order as a whole. However he doubted it made any difference in principle. It was appropriate to approach this case as if the Institute were a corporate body existing to perform the function of providing a Christian education to boys, able to own property and in fact, possessing substantial assets.
Lord Phillips considered the first stage of the test. Where the Defendant (here the Institute) and the tortfeasor were not bound by a contract of employment, but their relationship had the same incidents, that relationship could properly give rise to vicarious liability on the ground was it was akin to that between an employer and an employee. That was the approach adopted by the Court of Appeal in JGE. In fact the case for finding vicarious liability in this case was much stronger than in JGE because of the close means of control the Institute exercised over its brothers. Consequently Stage 1 was satisfied.
In relation to Stage 2, Lord Phillips considered the caselaw including the case of Lister v Hesley Hall Ltd [2002] 1 AC 215. In that case, Lord Millett in the House of Lords appeared to endorse the idea that if an organisation creates a risk of abuse by its own enterprise, that would form the basis of a finding of vicarious liability. Lord Phillips said that a common theme could be traced through most of the cases to which he had referred. Vicarious liability would be imposed where a Defendant, whose relationship with the abuse put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the Defendant and the tortfeasor and the acts of the abuse thus involves a strong causative link. Creation of risk was not enough, but it was always likely to be an important element.
Consequently the Institute would be vicariously liable for the abuse carried out by the brothers. They would share that responsibility with the Middlesbrough Defendants.