The Supreme Court has recently determined that for an employer to be liable for the tortuous act (wrong doing) of their employee (vicarious liability), some work related relationships are “closer than that of an employer and its employees.”
In this case “the relationship differed from that of the relationship between employer and employee in that:
(i) the brothers were bound to the institute not by contract, but by their vows; and
(ii) far from the institute paying the brothers, the brothers had entered into deeds under which they were obliged to transfer all their earnings to the institute. The institute catered for their needs from those funds.”
The court said that neither of those differences was material and the relationship as described (between the brothers and the institute) was capable of giving rise to vicarious liability.
It is important to remember that Vicarious liability can be imposed where a defendant (an employer), whose relationship with the abuser (the employee) put it in a position to use the abuser to carry on its business or to further its own interests AND had done so in a manner which had created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. Thus the issue of essential closeness of connection between the relationships is essential show establish a strong causative link.
It might be argued that these circumstances were unique, in that these lay teachers were abusers of children and this case is specific to the nature of the wrong.
However be defining that some relationships are closer than that of an employer and its employees” and removing some of the barriers, such as pay and reward, liability by employers can now be widened to include other areas of work that do not have a contractual but both parties are reliant on each other.
This case might be of particularly concern to the voluntary sector and other where there is an:
(i) existence of a promise to perform task, other than a contract; and
(ii) element of mutuality or care arising out of that promise.
The sole issue on the appeal heard by the Supreme Court was whether the Institute of the Brothers of the Christian Schools (De La Salle), whose members had been employed by the school management bodies to teach at and run the school, should be jointly vicariously liable for the abuse.
The employer was a lay Catholic teaching order whose brother members were assigned by it to teach at various schools (jointly vicariously liable with the school management body) for acts of physical and sexual abuse committed by the brothers while employed by the school management body at a residential school.
Further, that they alone, as the bodies which had been successively responsible for managing the school and employing teachers during the relevant period, were vicariously liable for acts of physical and sexual abuse of boys alleged to taken place over a period of 35 years at St William’s School in Market Weighton.
Citation:  UKSC 56;  WLR (D) 335
Various Claimants v Catholic Child Welfare Society and others
Linked cases:  EWCA Civ 1106