Vicarious liability for abuse

We look at the legal principle of vicarious liability for abuse

The legal concept of vicarious liability involves the principle that a faultless defendant can be legally liable for wrongdoing committed by an employee. But what about vicarious liability for abuse?

In the notorious case of Lister – v – Hesley Hall Limited (2002) I AC 215 an employer was found to be liable for a wrong committed by his employee where the wrongdoing was ‘closely connected’ to the employment.  In this case the school warden had been sexually abusing pupils in the defendant’s boarding school.  The court decided in that case that the wrongful actions were seen as ways in which the employee was carrying out work which the employer had authorised.  The court went on to say that had the abuser been a groundsman, without any duties to care for the children, the claimant’s case would have failed.  The question therefore as to a ‘close connection’ is very much case sensitive and varies according to the specific facts involved.  This has led to numerous cases on this point.

Initially, the courts interpreted ‘close connection’ in a broad manner, such as is the case of Bernard – v – Attorney General of Jamaica [2004] UKPC 47 where the employers of an off duty Police Officer were held liable to a member of the public who was shot by that officer when the claimant refused to hand over a public telephone.

In Y – v – London Borough of Wandsworth [2006] I WLR2320 a school was found vicariously liable when a tutor sexually assaulted pupils despite the fact the abuse occurred off school premises.

The concept of a ‘close connection’ therefore has been viewed widely by the courts.  That is until a recent flurry of appeals which have muddied the waters.

In Weddall – v –  Barchester Healthcare Limited [2012] I RLR 307 the claimant was a deputy manager of a care home.  A member of staff had phoned in sick so he needed to find cover.  He telephoned another employee at 6.00pm as he was entitled to do, but when the call was made the employee was drunk.  The employee in question was verbally abusive on the phone and then decided to cycle to the care home where he proceeded to physically assaulted the duty manager.  Whilst the claimant succeeded at first instance, the defendant appealed and the Appeal Court ruled that the attack could not be closely connected to the man’s employment because he was off duty and the assault took place some time after the telephone call.  Contrast this case with Bernard where the court had found in the claimant’s favour even where the incident occurred off duty and away from the workplace.

The courts have again exercised their discretion in two recent cases,EL – v – Children’s Society [2012] EWHC 365 (QB) and XVW & YZA – v – Gravesend Grammar Schools for Girls & Adventure Life Signs Ltd [2012] EWHC 575 (QB).  In EL, the claimant sued the children’s home because he had been abused by the son of the home owners.  The son had been entrusted with running the home when his parents were out, allowing him power over the children in his charge.  This case was rejected by the High Court who decided the son was never in charge of the home and his authority over the residents was purely as a consequence of being the owner’s son and as such was not an employee, or servant or agent.

This is an odd decision and certainly a step back from cases such as the Wandsworth case.

Similarly in XVW, two school pupils sued their school and a travel company which had co-organised a trip to Belize.  During the trip the girls were raped by a man on the farm where they were staying.  He had allocated some work to them during their stay and had the power to licence the girls to stay on his farm.  The court found that neither the school nor the travel company were held vicariously liable for his actions as the court decided it would not be fair to imply a relationship between either defendant or the man akin to employment.  Thus the generous doctrine of vicarious liability failed to operate in the claimant’s favour in this case.

Contrast the Gravesend case with the decision in JGE –v- The Trustees of the Portsmouth Roman Catholic Diocesan Trust & another [2012] 1All ER 72.   This case involved a Catholic priest who had sexually abused a child.  The Church denied liability arguing the priest was not an employee of the diocese or bishop, he was not paid by the church and the priest was considered an office holder and not an employee by HM Revenue and Customs.  Furthermore, whilst the bishop could deploy a priest in the parish of his choosing, he could not dismiss him as this could only be exercised by the Pope.  Despite these factors the judge still found the church was vicariously liable for the priests’ actions and he adopted the close connection test. The priest was appointed by the church to undertake work for its benefit and he had been trained and ordained by the church for that purpose.  The priest misused the position of trust and the power and authority in the local community which he had be given.

The current test for vicarious liability can be summarised as follows:-

  • There can be vicarious liability for wrongful actions which were wholly authorised, deliberate and criminal.
  • If the wrongful act was so closely connected with acts which the wrongdoer was authorised to do, then it may apply if it is fair and just to hold the defendant responsible for the harm caused.
  • In applying this test, did the defendants enterprise have control of the wrongdoer such to influence their performance of the tasks they were authorised to do.  Was there a risk of wrongdoing that the defendants could have influenced?

These cases are therefore very fact sensitive and each case will turn on the individual circumstances.  However, the generous nature of this doctrine to claimants and the court’s movement towards controlling its scope is an issue to bear in mind.

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Vicarious liability for abuse