Employers' liability for child abuse

The case of Catholic Welfare Society v Institute of the Brothers of the Christian Schools [2012] UKSC 56 (commonly known as “Christian Brothers”) was heard by the Supreme Court of England and Wales in July 2012. The judgment given on 21 November 2012 endorses the principle of vicarious liability. It maintains the judicial stance that employers may be vicariously liable for employees who abuse the vulnerable individuals whom they were employed to care for or educate.

The classic definition of vicarious liability was established by Sir John Salmond in  the first edition of “Law of Torts” (1907). Salmond stated that the “master” (the employer) incurs liability if the “servant” (the employee) executes either a wrongful act authorised by the master or an act authorised by the master but in a wrongful or unauthorised mode. An important qualification is that vicarious liability tends to apply only if the wrongful act occurred in the furtherance of the employer’s business.

The principle has recently been applied to a series of child abuse cases in the UK and abroad. The Canadian case of Bazley v Curry [1999] 2 SCR 534 established that those who employ teachers or carers of children are liable if those employees abuse their wards. It seemed a bizarre judgment since such abuse is diametrically opposed to the furtherance of an educational or pastoral enterprise. McLachlin J explained it with reference to the risks that employers take in appointing teachers or carers to positions of potentially dangerous influence over vulnerable individuals. Imposing vicarious liability deters employers from carelessly hiring abusers while providing a remedy to victims of abuse.

This reasoning was adopted in the English case of Lister v Hesley Hall [2001] UKHL 22, which extended vicarious liability to acts of sexual assault. The judgment held a school liable for the abuse of pupils by the school’s warden. The key issue for the establishment of vicarious liability was not the satisfaction of Salmond’s test but the close connection between the employee’s wrongful act and the nature of his employment. In Lord Steyn’s words, “the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties” and, therefore, the school was liable for it.

Christian Brothers
The case of Christian Brothers is an addition to the unhappy line of cases involving vicarious liability for child abuse. It centred upon an action brought by 170 men who were abused as boys by members of the Christian Brothers between 1952 and 1992.

The Brothers is a Catholic lay order composed of men dedicated to giving children a Christian education. Members of the order had been retained by a school in Middlesbrough where the abuse occurred. The De La Salle Institute, which manages the order, had resisted vicarious liability by claiming that it did not have an employer/employee relationship with the culpable Brothers. The court disagreed and held that the relationship was sufficiently proximate to render the institute vicariously liable along with the school.

The Supreme Court’s judgment confirms that unincorporated associations or non-legal entities (like the Catholic Church) may be vicariously liable in the same way as any corporate body. Churches and religious orders further their purposes by appointing individuals to positions of responsibility.

Such positions can facilitate the commission of sexual assault upon vulnerable people. This meets the test of close connection and renders it just, fair, and reasonable to hold these organisations vicariously liable for the assaults they facilitate, even if unknowingly. Christian Brothers clarified that this applies regardless of whether the organisation’s members are bound to them by vows rather than contracts.

The judgment increases the likelihood that any sexual assault committed by a member of a Church or religious order will provide grounds for an action against the Church or equivalent managing organisation that employed the wrongdoer.