VARIOUS CLAIMANTS V THE CATHOLIC CHILD WELFARE SOCIETY AND OTHERS AND THE INSTITUTE OF THE BROTHERS OF THE CHRISTIAN SCHOOLS AND OTHERS [2010] EWCA Civ 1106
FACTS:-
This case involved around 150 Claimants who asserted that they were physically and/or sexually abused by staff at a school, St William’s which they attended. There were some 35 Defendants. Only one of the Defendants was an individual alleged to be an abuser and sued personally. All the others were sued in one way or another as representing either the managers of the school (“the Middlesbrough Defendants”) who were emanations of the Catholic diocese of Middlesbrough or the Institute of the Brothers of the Christian Schools (also known as the De La Salle Institute) (“the Institute”).
The Middlesbrough Defendants were vicariously liable for the boards of managers only from 1st October 1973. Although there were managers prior to that date, there was no Defendant sued as representing them. The Claimant relied upon a transfer of liabilities provision in an Order made by the Secretary of State in 1973. Thus it was argued that the Middlesbrough Defendants had inherited the liabilities of the pre 1973 boards of managers, but those Defendants disputed that transfer.
The alleged abusers were:-
JUDGEMENT:-
Lord Justice Hughes described the statutory framework for the school. After 1933 the school had been an approved school and then in 1973 until closure in 1992, it was an assisted community home. Under the Approved School Rules 1933, the staff were the direct statutory responsibility of the managers and all teaching staff had to be employed by them under written contract. Following the Children and Young Persons Act 1969, the school converted to an assisted community home and the Secretary of State made an Instrument of Management. The employment of any person at the home was reserved for the decision of the responsible organization, subject to certain powers of veto or direction in the local authority.
The Institute was an ancient Catholic organization, which undertook teaching, principally of the poor. Its brothers were subject to strict rules and their deployment was subject to the control of the Provincial, a senior officer of the Institute. The communities of the Institute did remain subject to the authority of the diocesan bishop, but it was clear from the evidence that the bishop did not exercise de facto authority over brothers at St William’s school nearly as immediate as that exercised by the Provincial and the Institute generally.
The Institute did not own St Williams, but rather supplied teachers to the school.
Hughes LJ considered the law on vicarious liability. The first issue was whether vicarious liability could exist between one member of an unincorporated association and another. He could see no reason why vicarious liability might not sometimes exist between the members of an unincorporated association, as well as between the members on the one hand and an employee of the association. However although agency might often create vicarious liability, it did not follow that the position of an agent was simply the same as that of an employee.
The second issue was whether the employee/agent who committed a tort outside his authority could make his employer/principal vicariously liable. The two cases of Lister v Hesley Hall Ltd [2001] UKHL 22 and Dubai Aluminium v Salaam [2002] UKHL 48 gave support to the employer/principal being vicariously liable for criminal acts. However in Lister the House of Lords said that it would not sufficient for the imposition of vicarious liability, that the employment afforded the employee/agent the opportunity to commit the offence. In Lister which concerned abuse perpetrated on boys at a school by a warden, the House of Lords said that there were two questions to be answered:-
So the risk of wrongdoing had to be inherent to the operation carried out by the employee/agent.
Finally Hughes LJ said that it was now recognized to be possible for there to be a dual concurrent vicarious liability for two employers/principals, after the case of Viasystems (Tynside) Ltd v Thermal Transfer (Northern) Ltd and Others [2005] EWCA Civ 1151.
However in this case, the trial judge had found that the Institute did not run the school and it did not exercise effective control over its brother teacher’s way of doing his job. Hughes J considered the evidence and he agreed with that finding.
The Claimants’ counsel had not contended for any primary liability on the part of the Institute unless it was also vicariously liable, therefore the allegation of primary liability should be rejected.
Hughes LJ then turned to the transfer of liability question. The relevant order had been the St William’s: the Cessation of Approved Institutions (St William’s School) Order 1973 and the running of the school had been taken over by the Middlesbrough Defendants. Under this Order the position was exactly the same as would be the position in relation to a liability for a personal injury accident which had occurred owing to a defect in the premises in 1973 before the making of the Order.
Tomlinson LJ agreed with Hughes LJ.
Pill LJ considered the development of the law on vicarious liability. It had been submitted that the Institute was not an ordinary educational or professional organization. By its strict control over the lives and activities of the brothers, it assumed a responsibility for their conduct while they are carrying out its mission. Pill LJ said that these submissions were not without force. However St William’s was managed by a Board created by a statutory scheme. Therefore Pill LJ would agree with Hughes LJ on the vicarious liability point.
FACTS:-
This case involved around 150 Claimants who asserted that they were physically and/or sexually abused by staff at a school, St William’s which they attended. There were some 35 Defendants. Only one of the Defendants was an individual alleged to be an abuser and sued personally. All the others were sued in one way or another as representing either the managers of the school (“the Middlesbrough Defendants”) who were emanations of the Catholic diocese of Middlesbrough or the Institute of the Brothers of the Christian Schools (also known as the De La Salle Institute) (“the Institute”).
The Middlesbrough Defendants were vicariously liable for the boards of managers only from 1st October 1973. Although there were managers prior to that date, there was no Defendant sued as representing them. The Claimant relied upon a transfer of liabilities provision in an Order made by the Secretary of State in 1973. Thus it was argued that the Middlesbrough Defendants had inherited the liabilities of the pre 1973 boards of managers, but those Defendants disputed that transfer.
The alleged abusers were:-
- Institute brothers who were on the teaching staff
- Lay members of the teaching staff
- Social work staff
- Domestic staff
- One volunteer helper
- A chaplain to the school appointed to the school by the diocesan bishop
JUDGEMENT:-
Lord Justice Hughes described the statutory framework for the school. After 1933 the school had been an approved school and then in 1973 until closure in 1992, it was an assisted community home. Under the Approved School Rules 1933, the staff were the direct statutory responsibility of the managers and all teaching staff had to be employed by them under written contract. Following the Children and Young Persons Act 1969, the school converted to an assisted community home and the Secretary of State made an Instrument of Management. The employment of any person at the home was reserved for the decision of the responsible organization, subject to certain powers of veto or direction in the local authority.
The Institute was an ancient Catholic organization, which undertook teaching, principally of the poor. Its brothers were subject to strict rules and their deployment was subject to the control of the Provincial, a senior officer of the Institute. The communities of the Institute did remain subject to the authority of the diocesan bishop, but it was clear from the evidence that the bishop did not exercise de facto authority over brothers at St William’s school nearly as immediate as that exercised by the Provincial and the Institute generally.
The Institute did not own St Williams, but rather supplied teachers to the school.
Hughes LJ considered the law on vicarious liability. The first issue was whether vicarious liability could exist between one member of an unincorporated association and another. He could see no reason why vicarious liability might not sometimes exist between the members of an unincorporated association, as well as between the members on the one hand and an employee of the association. However although agency might often create vicarious liability, it did not follow that the position of an agent was simply the same as that of an employee.
The second issue was whether the employee/agent who committed a tort outside his authority could make his employer/principal vicariously liable. The two cases of Lister v Hesley Hall Ltd [2001] UKHL 22 and Dubai Aluminium v Salaam [2002] UKHL 48 gave support to the employer/principal being vicariously liable for criminal acts. However in Lister the House of Lords said that it would not sufficient for the imposition of vicarious liability, that the employment afforded the employee/agent the opportunity to commit the offence. In Lister which concerned abuse perpetrated on boys at a school by a warden, the House of Lords said that there were two questions to be answered:-
- Did the employers entrust to the warden the performance of a task which they, the employers had undertaken and,
- If so, was there a sufficiently close connection between the torts and the warden’s employment for it to be fair and just to hold the employers vicariously liable.
So the risk of wrongdoing had to be inherent to the operation carried out by the employee/agent.
Finally Hughes LJ said that it was now recognized to be possible for there to be a dual concurrent vicarious liability for two employers/principals, after the case of Viasystems (Tynside) Ltd v Thermal Transfer (Northern) Ltd and Others [2005] EWCA Civ 1151.
However in this case, the trial judge had found that the Institute did not run the school and it did not exercise effective control over its brother teacher’s way of doing his job. Hughes J considered the evidence and he agreed with that finding.
The Claimants’ counsel had not contended for any primary liability on the part of the Institute unless it was also vicariously liable, therefore the allegation of primary liability should be rejected.
Hughes LJ then turned to the transfer of liability question. The relevant order had been the St William’s: the Cessation of Approved Institutions (St William’s School) Order 1973 and the running of the school had been taken over by the Middlesbrough Defendants. Under this Order the position was exactly the same as would be the position in relation to a liability for a personal injury accident which had occurred owing to a defect in the premises in 1973 before the making of the Order.
Tomlinson LJ agreed with Hughes LJ.
Pill LJ considered the development of the law on vicarious liability. It had been submitted that the Institute was not an ordinary educational or professional organization. By its strict control over the lives and activities of the brothers, it assumed a responsibility for their conduct while they are carrying out its mission. Pill LJ said that these submissions were not without force. However St William’s was managed by a Board created by a statutory scheme. Therefore Pill LJ would agree with Hughes LJ on the vicarious liability point.