Vicarious liability and local authorities

The law of vicarious liability is on the move. Lucy Harris looks at the implications for local authorities.

The law of vicarious liability has recent been big news in legal circles and the effect of cases like The Catholic Child Welfare Society & Ors v Various Claimants, The Institute of the Brothers of the Christian Schools & Ors (21 November 2012), concerning the abuse of pupils at a Catholic Residential School for boys, raises interesting questions as to how far that could extend and the potential effect on local authorities.

The case arose out of claim of abuse that took place at St William’s Community Home, which was founded in 1865 by benefactors as a reformatory school for boys.

The benefactors entrusted the day to day running of the school to the “Institute of the Brothers of the Christian Schools,” (the “Institute”), whose purpose it was to “teach children, especially poor children, those things that pertain to a good and Christian life.” The Institute operates 1,000 schools worldwide. Its head is the Superior General in Rome and its members are lay brothers of the Catholic Church. It is an unincorporated association of its members, with corporate features, such as a hierarchy of authority and the ability to create legal entities and own property.

All members of the Institute are bound by rules laid down by the Pope in 1724 and later adapted. The rules specifically prohibit the touching of children through familiarity or playfulness.

The Institute appointed the head teacher and staff at St Williams and the staff team comprised Brother teachers and lay teachers, in varying proportions. School inspections were carried out by the Institute annually.

Government legislation in the 1960s and 1970s however, led to St. Williams’ School becoming an “assisted community home for children in the care of the local authority.” Management responsibility was initially transferred from the Institute, to the Middleborough Diocesan Rescue Society, and in 1982, it was transferred again to the Catholic Child Welfare Society.

The Institute continued to select the head teacher at St Williams’ School, albeit that his contract of employment was with the Catholic Child Welfare Society. The arrangement was such that any wages paid to the head teacher by the Society, were returned to the Institute.

In the 1990s, the head teacher of St Williams School was dismissed and later expelled from the Institute following a finding of “systemic sexual abuse of boys in his care.” The school closed in 1994. The head teacher was tried in 1994 and later in 2004 for acts of sexual abuse perpetrated upon pupils in his care. He was sentenced on both occasions to lengthy terms of imprisonment. Other staff were also implicated.

More than 170 former residents of St William’s School, have been seeking damages, since 2004.

The Catholic Child Welfare Society did not seek to challenge the finding of vicarious liability made against it in earlier proceedings. It accepted that as manager of the school, it had a responsibility towards those attending it. It did however seek to allege that the Institute should share the liability.

This stance was challenged by the Institute. The thrust of their argument was that their influence or control was too remote to attract liability.

Notwithstanding their protestations, in November 2012, the Institute was told by the Supreme Court that it must share the cost of paying an estimated £7m compensation to boys who were sexually and physically abused, the largest compensation claim arising from abuse at a single children’s home.

The Supreme Court held that the Institute was not a contemplative Order but had, from inception, existed to give a Christian education to boys. To perform that activity, it sent out Brother teachers, to teach in schools managed by other bodies, and it made Trust funds available, to fulfill this purpose.

The Supreme Court found that the Institute had elected the head teacher and directed his teaching activity. The manner in which the Brother teachers were obliged to conduct themselves was also directed by the Institute. This amounted to “a strong connection.”

The activity of providing Christian teaching, also created an opportunity, namely an opportunity to have access to boys. In turn, this created a potential risk, indeed the risk of sexual abuse was judged to be high, as boys and teachers resided together within the school grounds, and the boys themselves were vulnerable.

The Supreme Court found that the relationship between the Institute and this individual was akin to employment. Thus both the Catholic Child Welfare Society and the Institute of Christian Brothers have been judged jointly liable.

The test for vicarious liability now appears to be less concerned with whether there exists an employer/employee relationship, but rather whether the relationship between abuser and defendant is sufficiently close to render it just, fair and reasonable that the defendant should be held to account for the abuser’s actions; namely “akin to employment.”

Most initiatives and enterprises start with a positive goal in mind. Many carry inherent risks. Should it follow that when such a risk materialises, causing injury, the enterprise creators are at fault?

It is now more foreseeable than before that a local authority could be held vicariously liable for the tortious act of, for example, a foster carer.

Also, the courts might now take a different view of the tortious acts of casual workers or volunteers such as Youth or Scout and Guide leaders, and indeed the charitable organisations, companies or public service providers behind them, who permit them to access the public.

Inevitably each case will turn on its own facts. However, the law appears to have shifted. The concept of vicarious liability, previously held not to be “infinitely extendable” by Lord Steyn, might be becoming rather more pliable than many would like.

Lucy Harris is a member of the Large Loss and Complex Case Team at Forbes Solicitors. She can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..