Yet more case law on vicarious liability in abuse claims

When vicarious liability is established, an “employer” is liable for the wrongful act or omission of their “employee”.

Two criteria must be met for the doctrine of vicarious liability to apply:

1. the nature of the relationship between the two persons has to be one which “makes it proper for the law to make one pay for the fault of the other” (Lady Hale, giving the opinion of the court in Barclays Bank plc v Various Claimants, [2020] UKSC 13). This typically applies in the traditional employer / employee relationship but it may also apply where the relationship is sufficiently “akin to employment”; and

2. there must be a “close” or “sufficient” “connection” between that relationship and the wrongdoing (Lord Reed, giving the opinion of the court in Wm Morrisons Supermarkets plc v Various Claimants, [2020] UKSC 12).

The boundaries of these two criteria have come under close - and continuing - judicial scrutiny in recent months and years. Outcomes have often been intensely fact-specific. C & S v Norman Shaw (first defender) and Live Active Leisure Ltd (second defender), Lord Brailsford, Outer House, Court of Session, 14 February 2023, link here, is the latest reported decision in this area and the first reported Scottish decision on vicarious liability in abuse cases following the 2017 Scottish limitation reforms.   

Mr Shaw sexually abused two boys, C and S, during the mid-1980’s. He was convicted for this in a criminal court. Mr Shaw, as an individual, is also personally liable to pay civil damages to the boys for personal injury caused by the abuse. The overarching question for the court in C & S was whether vicarious liability should attach to the second defender leisure company who had employed Mr Shaw as a head caretaker for approximately five years. Because of the employment relationship, the first of the two criteria was met. The key - more focused - question for the court was whether there was a close or sufficient connection between the employee / employer relationship and Mr Shaw’s wrongdoing such that the second defender would be vicariously liable to pay civil damages to C and S, on Mr Shaw’s behalf. Lord Brailsford, in acknowledging that an evaluative approach was required to all the circumstances and the case law, answered “no” to this question such that vicarious liability did not attach to the second defender. His Lordship reached this conclusion in this way:

• For the close or sufficient connection test to be met, “there must be a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm”.
• The court acknowledged the close connection test had been applied differently in sexual abuse cases, tailored to emphasise particular factors including the conferral of authority (particularly in religious cases).
• To consider close connection, the court examined the duties and responsibilities, including the job description, and noted Mr Shaw’s duties as a head caretaker “did not create the risk (of abuse) or significantly enhance it”, nor did the duties place him in proximity to children with the risk having been created, and with the abuse commenced by Mr Shaw, during his pre-employment relationship with the family. Whilst acknowledging that in principle vicarious liability could attach where abuse had commenced earlier but continued during employment, the court distinguished the present circumstances from Barry Congregation (considered further below) and indicated that the pursuers were misplaced in their reliance on Barry Congregation for contending that pre-employment abuse did not negate vicarious liability for later abuse since, in the absence of conferral of authority, the pursuers failed to identify any other connecting factor to impose vicarious liability.
• Any “authority” that Mr Shaw may have exercised over the boys could not “be said to have arisen from what he was authorised to do by the second defender.”
• On the remaining  particular duty of ensuring that adults and children adhered to the rules of the sports centre, this would not have been likely to place Mr Shaw “in isolated contact with the children”. Hence “the abuse itself was not perpetrated within the second defenders’ field of activities. It was done in a private capacity once the public nature of (Mr Shaw’s) role, at least insofar as it relates to engaging with users of the sports centre, had been subverted”, with the result that vicarious liability did not attach.

As it happens, the decision in C & S (where evidence was heard last June) has been issued on the same day as the UK Supreme Court finished hearing the appeal in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB, link here. The overarching question for the court in Barry Congregation is “did the court of appeal wrongly find The Trustees of the Barry Congregation of Jehovah’s Witnesses to be vicariously liable for a rape committed by one of their elders?”. The latest appeal hearing in Barry Congregation was held on 13 and 14, both February 2023, involving detailed submissions on the applicability, or otherwise, of both of the two criteria for vicarious liability to be established and also on the question of any possible “synthesis”, or overlap, between the two criteria. UKSC’s judgment in Barry Congregation will likely be handed down within the next 3-9 months.