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| Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools | |
|---|---|
| Court | UK Supreme Court |
| Citation(s) | [2012] UKSC 56, [2013] 2 AC 1 |
| Keywords | |
| Enterprise risk | |
Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools [2012] UKSC 56 is an English tort law case, concerning vicarious liability.
A group action of 170 claimants had successfully claimed that between 1958 and 1992 they were sexually abused by Brother James Carragher, and various others, at the St William’s school. The Catholic Child Welfare Society (CCWS, a charitable company, referred to as the ‘Middlesbrough defendants’) supplied the teachers and managed the school directly. The Institute of the Brothers of the Christian Schools (IBCS), an unincorporated association, also controlled where its ‘Brothers’ taught.
The Court of Appeal found that the CCWS was liable, but the IBCS was not jointly liable. CCWS appealed to the UK Supreme Court, contending that IBCS should also be vicariously liable.
The Supreme Court found the IBCS was jointly liable because it formed part of the whole.
64. Bazley v Currie (1999) 174 DLR (4th) 45 was one of two decisions involving child abuse given by the Supreme Court of Canada on the same day. A not-for-profit organisation, D2, ran two residential care facilities for the treatment of emotionally troubled children. They unwittingly employed a paedophile, D1, who sexually abused one of the children in the home. The court, in a judgment delivered by McLachlin J, held D2 vicariously liable for the abuse. The issue related to stage 2. Could acts of sexual abuse properly be the subject of vicarious liability and, if so, on what basis? The court held that this question should be directly addressed in the light of considerations of policy. Two particular principles of policy were identified. The first was that where an employer puts into the community an enterprise carrying with it certain risks and those risks materialise and cause injury it is fair that, having created the enterprise and the risk, the employer should bear the loss. The second was that holding the employer vicariously liable might have a deterrent effect, causing employers to exercise a greater degree of care in relation to the appointment and supervision of employees. So far as the legal test of liability was concerned, para 42 of the judgment summarised the position as follows:
"…there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer's enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks."65. Markesinis and Deakin's Tort Law, 6th ed (2007) describe this as the "enterprise risk" approach.
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75. In Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366 the relevant issue was whether dishonest conduct by a solicitor could involve the firm in liability under section 10 of the Partnership Act 1890 as having been carried on “ in the ordinary course of the business of the fi rm ” . Giving the leading speech Lord Nicholls held that it was necessary to apply the legal policy underlying vicarious liability, which he stated at para 21:
“is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.”
76. This has strong echoes of the “ enterprise risk ” approach of the Canadian Supreme Court and, indeed, Lord Nicholls went on at para 23 to cite with approval from the judgment of McLachlin CJ in Bazley.
Respondeat superior is a doctrine that a party is responsible for acts of his agents. For example, in the United States, there are circumstances when an employer is liable for acts of employees performed within the course of their employment. This rule is also called the master-servant rule, recognized in both common law and civil law jurisdictions.
In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish, or prove, liability.
Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. While negligence in employment may overlap with negligent entrustment and vicarious liability, the concepts are distinct grounds of liability. The doctrine that an employer is liable for torts committed by employees within the scope of their employment is called respondeat superior.
London Drugs Ltd v Kuehne & Nagel International Ltd, [1992] 3 SCR 299 is a leading decision of the Supreme Court of Canada on privity of contract.
Negligent entrustment is a cause of action in United States tort law which arises where one party is held liable for negligence because they negligently provided another party with a dangerous instrumentality, and the entrusted party caused injury to a third party with that instrumentality. The cause of action most frequently arises where one person allows another to drive their automobile.
Vicarious liability in English law is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an employee is conducting their duties. This liability has expanded in recent years following the decision in Lister v Hesley Hall Ltd to better cover intentional torts, such as sexual assault and deceit. Historically, it was held that most intentional wrongdoings were not in the course of ordinary employment, but recent case law suggests that where an action is closely connected with an employee's duties, an employer can be found vicariously liable. The leading case is now the Supreme Court decision in Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools, which emphasised the concept of "enterprise risk".
Lister v Hesley Hall Ltd [2001] UKHL 22 is an English tort law case, creating a new precedent for finding where an employer is vicariously liable for the torts of their employees. Prior to this decision, it had been found that sexual abuse by employees of others could not be seen as in the course of their employment, precluding recovery from the employer. The majority of the House of Lords however overruled the Court of Appeal, and these earlier decisions, establishing that the "relative closeness" connecting the tort and the nature of an individual's employment established liability.
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Rose v Plenty [1976] 1 WLR 141 is an English tort law case, on the issue of where an employee is acting within the course of their employment. Vicarious liability was tenuously found under John William Salmond's test for course of employment, which states that an employer will be held liable for either a wrongful act they have authorised, or a wrongful and unauthorised mode of an act that was authorised.
Doe v Bennett, 2004 SCC 17 is a legal ruling by the Supreme Court of Canada which upheld the lower court's decision that the ecclesiastical corporation, Roman Catholic Episcopal Corporation of St. George's in Western Newfoundland, was vicariously liable for sexual abuse by Father Kevin Bennett.
Bazley v Curry, [1999] 2 SCR 534 is a Supreme Court of Canada decision on the topic of vicarious liability where the Court held that a non-profit organization may be held vicariously liable in tort law for sexual misconduct by one of its employees. The decision has widely influenced jurisprudence on vicarious liability outside of Canada.
Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34 is a UK labour law case holding that an employer will be vicariously liable for the harassment of an employee by another.
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd is an important case in South African law. It was heard in the Supreme Court of Appeal on 5 November 2008, with judgment handed down on 26 November. The judges were Scott JA, Farlam JA, Brand JA, Lewis JA and Jafta JA. JH Dreyer SC appeared for the appellant, and AC Ferreira SC for the respondent.
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Kerans v. Porter Paint Co. was a leading case in Ohio on employer liability for workplace sexual harassment. In an opinion by Alice Robie Resnick, the court held that victims of harassment could bring tort claims against their employers. Resnick held that the psychological and emotional damages suffered by victims of harassment were not injuries under Ohio's workers' compensation statute, and employers were vicariously liable for the sexual harassment of their employees when they knew or should have known about the harassment.
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