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Articles
Personal liability, vicarious liability,
non-delegable duties and protecting
vulnerable people
Stephen Todd *
A policy concern underlying the imposition on defendants of a liability in tort which influences the courts, sometimes expressly and sometimes implicitly, is a need to protect and assist persons who may be seen to have been in a vulnerable position at the time they suffered injury or harm. Leading decisions concerning the imposition on defendants of a duty of care in negligence, of vicarious liability in respect of the deliberate or negligent actions of another person, and of a duty which cannot be delegated to another person, all have given expression to, and support for, a concept of plaintiff vulnerability. Indeed, recent decisions in the United Kingdom, Canada and Australia concerning the abuse of children by persons in a position of power and authority and which significantly extend the reach of vicarious liability provide particularly apt examples. The aim of this article is to show how the three different kinds of claim can provide a remedy for vulnerable people and to identify any links and overlaps between them. Certainly it is apparent that the idea of vulnerability can provide helpful guidance for a court faced with a novel or borderline question of liability.
It is not especially controversial to assert, at least as a broadly desirable objective, that the principles of the common law of torts should have a role to play in protecting vulnerable people.^1 But immediate difficulty is likely when we start to consider what this proposition may mean in practice and how exactly the objective may come to be achieved. The common law courts seek to lay down rules and principles of general application. They do not have the same ability or the same freedom as legislatures have to craft detailed rules that can be expressed to apply specifically to defined (and, maybe, deserving) claimants.^2 But the courts nonetheless are able to bring into account the notion of vulnerable persons as a class or category of claimant or of defendant, and in this way may accord them special treatment when resolving disputed issues of liability. The concern of this article is with the former of these categories,
- Professor of Law, University of Canterbury, New Zealand; Professor of Common Law, University of Nottingham, United Kingdom. I would like to thank my colleague Richard Hyde and the anonymous referee for their very helpful comments on a draft of this article. 1 Not everyone will agree. Rights theorists reject the relevance of policy concerns, such as, in particular, a wish to protect the vulnerable, in determining the ambit of rules of liability in tort. See especially R Stevens, Torts and Rights , Oxford University Press, 2007; A Beever, Rediscovering the Law of Negligence , Hart, 2007, especially pp 194–5. There are significant objections to a rights analysis of tort law, which will not be developed here. 2 A modern instance of special legislative attention is the protection afforded in many countries to ‘consumers’ in their dealings with commercial entities. Notable recent examples are the Competition and Consumer Act 2010 in Australia and the Consumer Rights Act 2015 in the United Kingdom.
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that is, plaintiffs who are in some sense vulnerable who are making a claim for damages.^3 We can find support for the idea that a plaintiff’s vulnerability is or may be a relevant concern in decisions on the imposition on defendants of a duty of care in negligence, in decisions governing the imposition on defendants of vicarious liability in respect of the deliberate or negligent actions of another person, and in decisions recognising that defendants may be under a duty which cannot be delegated to other persons.^4 The aim of this article is to examine these three ways in which the common law courts have given expression to, and support for, the concept of plaintiff vulnerability, and, further, to consider any links and overlaps between them. 5 The primary focus is on the decisions of the courts in the United Kingdom, Australia, Canada and New Zealand, although cases from other jurisdictions are mentioned as well. These introductory words have not addressed the question as to when, exactly, a litigant may be regarded as vulnerable. It would hardly be possible to compile an exhaustive list of qualifying circumstances or conditions, and the underlying concept is clear. Speaking broadly, our concern is with a plaintiff’s relationship or connection with a defendant where, by reason of the plaintiff’s weakness and/or the defendant’s strength or power, the plaintiff typically is at a disadvantage in relation to the other, or is open to mistreatment or exploitation, or is reliant on the other for protection.^6 One can point to common instances — children under the control of adults, prisoners supervised by custodians, religious figureheads having influence over their flock. But, as will be seen, the question ultimately will be determined on the particular facts of a case. The decisions that are examined in the article will help illuminate what ‘vulnerability’ may encompass.
Alleging personal liability for negligence
Duty formulae
The threshold condition for the imposition of liability in any negligence action is that the defendant must have owed a legal duty to the plaintiff to take care. The duty requirement exists in order to give some structure to the law of negligence, to assist in making the application of the law reasonably predictable and to confine the ambit of liability within reasonably acceptable boundaries. But quite how the question ought to be articulated and these desirable objectives achieved of course has preoccupied the courts on
3 Of course, vulnerable defendants are protected by the common law or equity in various ways. For example, the plea of non est factum was originally developed to protect those who were illiterate or blind, and the notion of vulnerability remains relevant in determining the question today. Again, the principles of equity protecting vulnerable persons from liability by reason of another person’s undue influence or unconscionable behaviour are long established. 4 This means that the defendant cannot delegate legal responsibility in respect of performance of the duty, not that the defendant cannot delegate actual performance of the task in question. 5 For an earlier examination on the theme of vulnerability, see J Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24 Aus Bar Rev 135. 6 For discussion about ‘consumers’ (with possible application of relevant concepts in the present context), see Consumer Affairs Victoria, Discussion Paper: What do we Mean by ‘Vulnerable’ and ‘Disadvantaged’ Consumers? , Australian Government, 2004; P Cartwright, ‘Understanding and Protecting Vulnerable Financial Consumers’ (2015) 38 JCP 119.
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Now it is true that there is no special magic in the formulation of these tests, and it is also true that the criteria may overlap or merge. The foreseeability of damage to the plaintiff or a class of plaintiffs and the degree of proximity or neighbourhood between the parties are closely related issues. Again, the proximity question is bound up with the inquiry as to what is fair, just and reasonable in the circumstances of the case, for they both fulfil a controlling function and limit the potential ambit of a defendant’s liability. Even so, the focus of each of the criteria is different. The question whether harm is foreseeable is conceptually distinct from the proximity question, although both are internal in the sense that they are concerned with the nature and the closeness of the connection between the parties. Again, determining what is fair, just and reasonable and the inquiry into external factors outside the parties’ relationship both look to the effect on non-parties and on the structure of the law and on society generally, and very arguably it is helpful to separate out this aspect of the duty issue.
Influential policies
Of course, there is a more fundamental question arising out of the Caparo or Anns approach or any other test. Whatever formula is adopted, it cannot in itself direct us towards any particular conclusion. Rather, the actual decision must depend upon a value judgment of the court concerned, based upon its assessment of all the circumstances that it considers relevant to its inquiry. So, returning to Caparo once more, Lord Oliver said that to search for any single formula which would serve as a general test of liability was to pursue a will-o’-the-wisp. He thought that the attempt to state some general principle which would determine liability in an infinite variety of circumstances served not to clarify the law but merely to bedevil its development in a way which corresponded with practicality and common sense. Yet while the view that there can be no general, all-embracing, test is hardly contestable, it does not mean that nothing in the way of substantive guidance is possible. The question we need to consider is whether we can move beyond mere structure or formulae that can help organise our thinking^13 and identify matters of substance that can provide us with some direction as to what we should be thinking about. The duty question may be argued in an almost unlimited range of circumstances, and all kinds of considerations may be taken into account, but it by no means follows that if the question has not been determined it is entirely at large or that every new decision is simply an ad hoc determination of policy. A court’s initial focus is likely to be on any possible analogies with existing case law, and the substantive policies underlying such case law equally will influence any incremental development that the court may be minded to favour. This in turn raises the question whether or to what extent we can distil some influential policies from existing cases, irrespective of the existence or the range of authority concerning the particular issue before a court. An exhaustive list of all potentially influential factors would be
13 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at 294 per Cooke P.
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impossible to compile, even assuming it would be desirable to do so,^14 yet underlying a great many of the courts’ decisions we can identify certain core conceptions of policy that can provide assistance in determining how to resolve many disputed duty issues. 15 They include, inter alia, respect for the autonomy and freedom of action of the individual in deciding whether there is a duty to help or to prevent harm to another;^16 a desire not to impose on defendants an indeterminate burden of liability; 17 a need for any new duty to operate coherently and consistently with other existing rules governing the
14 However, see the list of factors compiled by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; 259 ALR 616; [2009] NSWCA 258; BC200907980 at [103]. See also J Stapleton, ‘Duty of Care Factors: A Selection from the Judicial Menu’ in The Law of Obligations: Essays in Celebration of John Fleming , P Cane and J Stapleton (Eds), Oxford University Press, 1998, p 61. 15 This thesis is developed in S Todd, ‘A Methodology of Duty’ in Centenary Essays for the High Court of Australia , P Cane (Ed), LexisNexis Butterworths, 2004, p 221. They are at least core themes: see Houghton v Saunders [2015] 2 NZLR 74; [2014] NZHC 2229; BC201463119 at [673]–[678]. 16 This basic principle can be fleshed out by reference to the political, moral and economic considerations identified by Lord Hoffmann in Stovin v Wise [1996] AC 923 at 944; [1996] 3 All ER 801 at 819. In political terms it was less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point might be called the ‘why pick on me?’ argument. A duty to prevent harm to others or to render assistance to a person in danger or distress might apply to a large and indeterminate class of people who happened to be able to do something. Why should one be liable rather than another? Further, in economic terms, the efficient allocation of resources usually required an activity should bear its own costs. If it benefited from being able to impose some of its costs on other people, the market was distorted because the activity appeared cheaper than it really was. So there needed to be some special reason why there should be a duty to act, which might be found where a person had undertaken to do so, or had induced reliance on him doing so, or had taken on the responsibilities of the owner or occupier of property. Again, in Mitchell v Glasgow City Council [2009] 1 AC 874; [2009] 3 All ER 205; [2009] 2 WLR 481; [2009] UKHL 11 at [23], Lord Hope, giving an overview, recognised that a duty to intervene might exist where a defender (i) had created a source of danger; or (ii) had exercised control over another; or (iii) had assumed a responsibility to or induced reliance by the pursuer. See also Michael v Chief Constable of South Wales Police [2015] AC 1732; [2015] 2 All ER 635; [2015] 2 WLR 343; [2015] UKSC 2 at [97]–[101] per Lord Toulson JSC; J Goudkamp, ‘A Revolution in Duty of Care’ (2015) 131 LQR 519. 17 In New Zealand, in South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at 306, Richardson J referred to a balancing of the plaintiff’s moral claim to compensation for avoidable harm and the defendant’s moral claim to be protected from an undue burden of legal responsibility; and see North Shore City Council v Attorney-General [2012] 3 NZLR 341; [2012] BCL 280; [2012] NZSC 49; BC201262230 at [159]. In Australia, in Tame v New South Wales: Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35; BC200205111 at [5], Gleeson CJ observed that the law is concerned not only with the compensation of injured plaintiffs but also with the imposition of liability upon defendants, and the effect of such liability upon the freedom and security with which people may conduct their ordinary affairs. Examples of the so-called floodgates factor are legion: see, in particular, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; [1991] 4 All ER 907; (1991) 8 BMLR 37 (mental injury suffered by secondary victims); Caparo [1990] 2 AC 605; (1990) 1 ACSR 636; [1990] 1 All ER 568; [1990] BCLC 273; Hercules Managements Ltd v Ernst & Young [1997] 2 SCR 165 (economic loss suffered by investors in negligently audited companies); Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding [1997] 3 SCR 1210 (relational economic loss).
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or she assumed the risk, or that he or she was guilty of contributory negligence, but it can also have a role to play in the duty inquiry.^23 If a person’s vulnerable position is a relevant concern for a court in making a duty inquiry, then clearly it is necessary to determine who is to be treated as vulnerable for this purpose. The principle cannot simply contemplate a plaintiff who is poor or ignorant or who otherwise might be thought to be in need of protection because of his or her individual circumstances. Any such principle would very likely be unworkable and impossible to administer.^24 Indeed, and obviously, it would tend to discriminate against those who are rich or clever or resourceful. So the principle needs to operate in relation to certain kinds or categories of case which typically involve vulnerable plaintiffs. An example perhaps is found in the principle that one may be under a duty to act to prevent harm if one has induced a person to rely upon one doing so. 25 In this kind of case the victim may be deprived of the chance of assistance by third parties or the opportunity to take steps by way of self-protection and may also be lulled into a false sense of security. 26 And, fairly clearly, the idea of vulnerability is implicit in the principle. The assumption of responsibility for a person or for a task may induce reliance by another, yet the cases do not indicate that reliance is always necessary. In some limited circumstances, and quite apart from contract, assuming responsibility for another or for performing a task can engender a duty to persons who are sufficiently closely and proximately affected by a failure properly to carry it out. And, usually, that person is in a vulnerable position. As regards another person, a classic instance is the duty of a parent or person in loco parentis, like a school authority, to take care to safeguard a child from danger on the road, or from dangerous premises, or from being
23 J Stapleton, ‘Duty of Care and Economic Loss: A Wider Agenda’ (1991) 107 LQR 249 at 265–6. 24 The difficulty is exemplified by the debate in jurisdictions accepting that a third party purchaser may have an action against the builder in respect of the costs of putting right defects in a building. The High Court of Australia has held that ‘commercial’ purchasers cannot sue as they are not vulnerable: Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; [2004] HCA 16; BC200401482; Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; 313 ALR 408; [2014] HCA 36; BC201408266. By contrast, one reason for the decision of the NZ Supreme Court in Body Corporate No 207624 v North Shore City Council [2013] 2 NZLR 297; [2012] NZSC 83; BC201263017 (Spencer on Byron) , declining to draw a distinction between negligence claims involving residential and commercial owners of buildings was that the position as to vulnerability did not assist. Residential owners might be very well able to protect themselves and commercial owners might be highly vulnerable. However, it might be possible to draw a distinction between different types of building rather than between the circumstances of the owners of a building, which solution was adopted in Spencer on Byron in the Court of Appeal: North Shore City Council v Body Corporate 207624 [2011] 2 NZLR 744; [2011] BCL 408; BC201161240. 25 Stovin v Wise [1996] AC 923 at 944; [1996] 3 All ER 801 at 819. 26 See, eg, Al-Kandari v J R Brown & Co [1988] QB 665; [1988] 1 All ER 833; Hamilton Jones v David & Snape [2004] 1 All ER 657; [2004] 1 WLR 924; [2003] EWHC 3147 (Ch); Kent v Griffıths [2001] QB 36; [2000] 2 All ER 474; [2000] 2 WLR 1158 at [14]; Vowles v Evans [2003] 1 WLR 1607; [2003] EWCA Civ 318; Fullowka v Pinkerton’s of Canada Ltd [2010] 1 SCR 132; 2010 SCC 5; Chandler v Cape Plc [2012] 3 All ER 640; [2012] 1 WLR 3111; [2012] EWCA Civ 525; cf Thompson v Renwick Group Plc [2014] PIQR P18; [2014] EWCA Civ 635.
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assaulted or abused.^27 As regards the taking on of a task, an example is White v Jones.^28 A testator instructed solicitors to draw up a new will giving a benefit to the plaintiffs, but died before the solicitors had acted on the instructions. The plaintiffs alleged that the solicitors were negligent in failing to carry out the instructions with due diligence. The House of Lords held that the solicitors were under a duty to take care, and one reason was that the solicitors, by accepting their instructions, had assumed responsibility for the task of procuring the execution of a skilfully drawn will knowing that the beneficiary was wholly dependent upon them carefully carrying out their function. The decision can be seen as creating a ‘pocket of liability’^29 in circumstances where nobody else could protect the beneficiaries and they were the only persons likely to suffer loss if the will was negligently drawn. Other cases have declined to apply the White principle in arguably analogous circumstances where the plaintiff was not in a vulnerable position or dependent on the defendant or was reasonably able to take self-protective measures. 30 This brief sketch of the apparent influence of a vulnerability principle on the question whether a person is under a duty to take care no doubt deserves to be explained and developed in a good deal more detail. For present purposes, however, it serves as a suitable introduction to the theme of this article. For just as the principle may sometimes bear upon the duty inquiry, it may also have an important role to play in relation to a person’s possible vicarious liability for another’s conduct or to whether a person may be held to be under a non-delegable duty to take care in respect of a task that has been delegated to another. In a number of recent — and major — decisions the courts have been extending and clarifying the circumstances in which these special forms of liability, both arising through someone else’s conduct, can be held to exist. As will be explained, they constitute particularly clear instances where the courts can be seen to be providing special protection to vulnerable or defenceless persons. Indeed, they provide a very suitable setting for the courts in undertaking their task of developing the relevant principles.^31
27 Parents: McCallion v Dodd [1966] NZLR 710; Tweed Shire Council v Howarth [2009] NSWCA 103, (2009) Aust Torts Reports 82–101; BC200903619. Local authority: Barrett v Enfield London Borough Council [2001] 2 AC 550; [1999] 3 All ER 193; [1999] 3 WLR 79; BC9903369. Schools: Barnes v Hampshire County Council [1969] 1 WLR 1563; Hahn v Conley (1971) 126 CLR 276; [1972] ALR 247; BC7100610; Geyer v Downs (1977) 138 CLR 91; 17 ALR 408; BC7700096; Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577; BC8200087 ( Introvigne ); Myers v Peel County Board of Education [1981] 2 SCR
28 [1995] 2 AC 207; [1995] 1 All ER 691; and see Gorham v British Telecommunications Plc [2000] 4 All ER 867; [2000] 1 WLR 2129. 29 J Stapleton, ‘Comparative Economic Loss: Lessons From Case-Law-Focused “Middle Theory”’ (2002) 50 UCLA LR 531 at 531. 30 For example, Brownie Wills v Shrimpton [1998] 2 NZLR 320 (no duty owed by solicitors to a director who had guaranteed a loan to the director’s company where the solicitors, in breach of the lender’s instructions, had negligently failed to explain to the director the nature of the guarantee); and see Wells v First National Commercial Bank [1998] PNLR 552; Briscoe v Lubrizol Ltd [2000] ICR 694; but compare Kapfunde v Abbey National Plc (1998) 45 BMLR 176; [1999] ICR 1; [1998] IRLR 583, where the plaintiff seemingly was vulnerable. 31 Sometimes both forms of liability may be found to arise out of the one set of facts. In
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rather than the result of any clearly developed and logical legal principle. 38 The recent decisions in the United Kingdom all tend to illustrate this proposition.
In the Christian Brothers case,^39 Lord Phillips said that the policy objective underlying vicarious liability was to ensure, insofar as it was fair, just and reasonable, that liability for tortious wrong was borne by a defendant with the means to compensate the victim. Such defendants could usually be expected to insure against the risk of such liability, so that this risk was more widely spread. It was for the court to identify the policy reasons why it was fair, just and reasonable to impose vicarious liability and to lay down the criteria that had to be shown to be satisfied in order to establish vicarious liability. Where the criteria were satisfied the policy reasons for imposing the liability should apply. His Lordship considered that there was no difficulty in identifying a number of policy reasons that usually made it fair, just and reasonable to impose vicarious liability on an employer where an employee committed a tort in the course of his employment. They were: (i) the employer was more likely to have the means to compensate the victim than the employee and could be expected to have insured against that liability; (ii) the tort would have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity was likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity would have created the risk of the tort committed by the employee; (v) the employee would, to a greater or lesser degree, have been under the control of the employer. Importantly, his Lordship subsequently added that where the defendant and the tortfeasor were not bound by a contract of employment, but their relationship had the same incidents, that relationship could properly give rise to vicarious liability on the ground that it was ‘akin to that between an employer and an employee’. In Cox Lord Reed discussed and commented on these views. 40 He maintained that the five factors which Lord Phillips mentioned were not all equally significant. The first — the defendant’s means and the likelihood he was insured — did not feature in the remainder of the judgment and was unlikely to be of independent significance in most cases, for neither was a principled justification. 41 The mere possession of wealth was not in itself any ground for imposing liability. As for insurance, employers insured themselves because they were liable: they were not liable because they had insured themselves. The significance of the fifth of the factors — the employer’s
38 A seminal discussion is that of McLachlin CJ in the Supreme Court of Canada in Bazley v Curry [1999] 2 SCR 534 ( Bazley ); P Cane, ‘Vicarious Liability for Sexual Abuse’ (2000) 116 LQR 21; R Townshend-Smith, ‘Vicarious Liability for Sexual (and other) Assaults’ (2000) 8 TLR 108; N des Rosiers, ‘From Precedent to Prevention — Vicarious Liability for Sexual Abuse’ (2000) 8 TLR 27; P Giliker, ‘Rough Justice in an Unjust World’ (2002) 65 MLR 269. 39 [2013] 2 AC 1; [2013] 1 All ER 670; [2012] 3 WLR 1319; [2012] UKSC 56 at [34]–[35], [47]. 40 Cox [2016] AC 660; [2016] 2 WLR 806; [2016] ICR 470; [2016] UKSC 10 at [19]–[24]. 41 It is notable that in Christian Brothers [2013] 2 AC 1; [2013] 1 All ER 670; [2012] 3 WLR 1319; [2012] UKSC 56 the claimants certainly had a good claim against an insured defendant, and the question was whether that defendant could recover a contribution from another insured defendant: see below nn 47 and 61 and accompanying text.
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control over the tortfeasor — was that the defendant could direct what the tortfeasor did, not how he did it. So understood, it was a factor which was unlikely to be of independent significance in most cases. On the other hand, the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.
Lord Reed said that the remaining factors — (1) activity by the tortfeasor on behalf of the defendant; (2) which was likely to be part of the business activity of the defendant; (3) which would have created the risk of the tort being committed — were interrelated. The first had been reflected historically in explanations of the vicarious liability of employers based on deemed authorisation or delegation. The second contemplated that, since the employee’s activities were undertaken as part of the activities of the employer and for its benefit, it was appropriate that the employer should bear the cost of harm wrongfully done by the employee within the field of activities assigned to him. The third factor was very closely related to the second: since the risk of an individual behaving negligently, or indeed committing an intentional wrong, was a fact of life, anyone who employed others to carry out activities was likely to create the risk of their behaving tortiously within the field of activities assigned to them. The essential idea was that the defendant should be liable for torts that might fairly be regarded as risks of his business activities, whether they were committed for the purpose of furthering those activities or not. Christian Brothers wove together these related ideas so as to develop a modern theory of vicarious liability.
It is apparent from this brief account that the core policy favouring the imposition of vicarious liability and identified in Christian Brothers and Cox is founded on the defendant’s business or activity having created the risk of the harm, rendering it just that the defendant should pay for it. We will be considering in more detail quite what is contemplated by this notion of risk and, in particular, how it protects vulnerable people. Furthermore, and crucially, that policy can be seen as driving the expansion in the reach of vicarious liability that was achieved in Christian Brothers and applied in Cox. It also tends to promote a coming together or fusion of the orthodox requirements for the imposition of vicarious liability, viz, establishing (i) the kind of relationship between the defendant and the wrongdoer; and (ii) the kind of link between that relationship and the conduct of the wrongdoer, which are necessary to found such liability.
How, then, did Christian Brothers move the law forward? It did so in three critical respects. 42 First, the orthodox relationship founding vicarious liability is, of course, that between an employer and an employee, and Christian Brothers extended the law by including relationships ‘analogous to employment’. Second, leading authority in the UK took the view that only one defendant could be vicariously liable for a tortious act, but Christian Brothers accepted and applied the concept of dual vicarious liability. Third, the earlier
42 As will be explained, in all three respects the movements in the law achieved in Christian Brothers [2013] 2 AC 1; [2013] 1 All ER 670; [2012] 3 WLR 1319; [2012] UKSC 56 were foreshadowed by earlier movements in the law in Canada.
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Institute), founded by Jean-Baptiste De La Salle in 1680, was responsible for sexual and physical abuse of children committed by its brothers at a residential institute for boys (St William’s) who were in need of care and protection. Claims had been brought by the victims against two groups of defendants. The first (called the Middlesbrough defendants), who were the managers of the school and the employers of the brother teachers, were held at first instance to be vicariously liable in respect of abuse by those teachers. The second (the Institute defendants) were found not to be vicariously liable, on the basis that the Institute did not employ the brothers at St William’s. Rather, it sent its brothers to teach there. The Court of Appeal upheld the judge’s decision,^48 and the Middlesbrough defendants appealed, on the ground that the Institute should share joint vicarious liability for the acts of its brother members. The Supreme Court was unanimous in upholding this contention. Lord Phillips (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Carnworth agreed) explained first how the Institute operated. 49 Its members were bound by lifelong vows of poverty, chastity and obedience and lived a communal life together as brothers, following a strict code of conduct. The Institute’s mission was to provide a Christian education to boys, and in pursuance of that activity it owned and managed schools in which its members taught, and it sent its members to teach at schools managed by other bodies (as was the case with St William’s). The brothers renounced any salaries payable for their teaching, which were instead paid to charitable trusts for the benefit of the Institute and used to meet the needs of the brothers and the financial requirements of the teaching mission. The Institute itself was not itself a corporate body, but the trusts through which it operated had recognised legal personality, and in the circumstances Lord Phillips saw it as appropriate to approach the case as if the Institute were incorporated, able to own property and possessing substantial assets. On these findings his Lordship was satisfied that the relationship between the defendant and the tortfeasor had the same incidents as that of a contract of employment and could properly give rise to vicarious liability, on the ground that it was ‘akin to that between an employer and an employee’.^50 That was the approach adopted by the Court of Appeal in E v English Province. And in the instant case the relationship between the teaching brothers and the Institute had all the essential elements of the relationship between employer and employee: the Institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body; the teaching activity of the brothers was undertaken because the provincial head directed the brothers to undertake it; the teaching activity undertaken by the brothers also was in furtherance of the objective, or mission, of the Institute; and the manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. The relationship between the teacher brothers and the Institute differed from that of the relationship between
48 Various Claimants v Catholic Child Welfare Society [2010] All ER (D) 241 (Oct); [2010] EWCA Civ 1106; P Giliker, ‘Taking Vicarious Liabiliy to the Brink: Vicarious Liability in the English Court of Appeal’ (2011) 19 TLJ 76. 49 Christian Brothers [2013] 2 AC 1; [2013] 1 All ER 670; [2012] 3 WLR 1319; [2012] UKSC 56 at [8]–[10], [32]–[33]. 50 Ibid, at [47], [56]–[58].
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employer and employee in that the brothers were bound to the Institute not by contract, but by their vows, and the brothers entered into deeds under which they were obliged to transfer all their earnings to the Institute, but neither difference was material. Indeed, they rendered the relationship closer than that of an employer and its employees.^51
Let us turn now to Cox.^52 The question in this case was whether the UK Ministry of Justice could be held vicariously liable for the negligence of a prisoner assisting with work in the prison kitchen who dropped a heavy bag of rice onto the prison catering manager and injured her. Here, then, the wrongdoer was not an employee of the prison authority. Lord Reed affirmed that the general approach in Christian Brothers was not confined to some special category of cases, such as the sexual abuse of children.^53 By focusing upon the business activities carried on by the defendant and their attendant risks, it directed attention to the issues which were likely to be relevant in the context of modern workplaces, where workers might in reality be part of the workforce of an organisation without having a contract of employment with it, and also reflected prevailing ideas about the responsibility of businesses for the risks which were created by their activities. It extended the scope of vicarious liability, but not to the extent of imposing such liability where a tortfeasor’s activities were entirely attributable to the conduct of a recognisably independent business of his own or of a third party. That extension enabled the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and members of their workforces which might be motivated by factors which had nothing to do with the nature of the enterprises’ activities or the attendant risks. Lord Reed said also that it not necessary that the defendant be carrying on activities of a commercial nature: it was sufficient that the defendant be carrying on activities in the furtherance of its own interests. 54 The individual for whose conduct it might be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those activities to him, have created a risk of his committing the tort. A wide range of circumstances could satisfy those requirements. Applying this approach, Lord Reed was satisfied that the requirements laid down in the Christian Brothers case were met and that the ministry was vicariously liable. 55 The prison service carried on activities in furtherance of its aims. The fact that those aims were not commercially motivated, but served the public interest, was no bar to the imposition of vicarious liability. Prisoners working in the prison kitchens were integrated into the operation of the prison,
51 See also A v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722, applying Christian Brothers [2013] 2 AC 1; [2013] 1 All ER 670; [2012] 3 WLR 1319; [2012] UKSC 56 to cover the elders and ministerial servants of congregations of the Jehovah’s Witnesses. 52 [2016] AC 660; [2016] 2 WLR 806; [2016] ICR 470; [2016] UKSC 10; P Morgan, ‘Certainty in Vicarious Liability: A Quest for a Chimaera?’ (2016) 75 CLJ 202. 53 Cox , ibid, at [29]. 54 Ibid, at [30]. 55 Ibid, at [32]–[44].
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vicarious liability was possible. Rix LJ took a rather different approach.^60 He noted that the courts had imperceptibly moved from using the test of control as determinative of the relationship of employer and employee to using it as the test of vicarious liability of a defendant, and questioned whether vicarious liability was to be equated with control. Rather, what one was looking for was a situation where the employee in question was so much part of the work, business or organisation of both employers that it was just to make both employers answer for his negligence. In Christian Brothers, Lord Phillips approved the decision in Viasystems and applied it to the facts of the case. 61 He noted that the brothers who taught at St William’s were not contractually employed by the Institute; rather, they were employed by or on behalf of the Middlesbrough defendants. But dual liability could be imposed. Where two defendants were potentially vicariously liable for the act of a tortfeasor it was necessary to give independent consideration to the relationship of the tortfeasor with each defendant in order to decide whether that defendant was vicariously liable. And in considering that question in relation to each defendant, the approach of Rix LJ was to be preferred to that of May LJ. In Cox , Lord Reed observed that a lesson to be drawn from these recent cases was that defendants could not avoid vicarious liability on the basis of technical arguments about the employment status of the individual who committed the tort. What weighed with the courts in E v English Province and Christian Brothers was that the abusers were placed by the organisations in question, as part of their mission, in a position in which they committed a tort whose commission was a risk inherent in the activities assigned to them.^62 So the approach taken to cases of dual vicarious liability reinforces the argument already advanced, that finding a relationship between the parties that can support the imposition of vicarious liability and finding a close connection between that relationship and the wrongdoing, are intimately related inquiries, and both tend to operate to protect those who are particularly vulnerable to suffering harm at the hands of the wrongdoer.
The close connection test
The classic approach to the question whether there is a sufficient link between an employer and the tort of his or her employee so as to make the employer vicariously liable is elaborated in the first edition of Salmond on Torts and has become known as the ‘Salmond test’. 63 It must be asked whether the wrongful act was committed ‘in the course’ or ‘within the scope’ of employment, 64 with the relevant act being ‘either (a) a wrongful act authorised by the master, or
60 Ibid, at [64], [79]. 61 Christian Brothers [2013] 2 AC 1; [2013] 1 All ER 670; [2012] 3 WLR 1319; [2012] UKSC 56 at [40]–[45]. 62 Cox [2016] AC 660; [2016] 2 WLR 806; [2016] ICR 470; [2016] UKSC 10 at [31], citing Bell, above n 32, for this proposition. 63 See J W Salmond, The Law of Torts: A Treatise on the English Law of Liability for Civil Injuries , Stevens and Haynes, 1907, pp 83–4. 64 Salmond used these expressions interchangeably, and while the former subsequently gained the greatest currency the latter arguably is less restrictive, and, as will be seen, reflects recent developments.
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(b) a wrongful and unauthorised mode of doing some act authorised by the master’. The second limb is amplified by the proposition that a master is liable for acts which he has not authorised if they are ‘so connected with acts which he has authorised, that they may rightly be regarded as modes — although improper modes — of doing them’.
The first limb of this test may provide a means of establishing vicarious liability for agents who are not employees, or constitute a form of accessory liability. The second limb raises the problem of deciding whether conduct is an unauthorised mode of doing something or simply is not authorised at all. While the test is reasonably workable where an employee is alleged to have been negligent during his or her employment, there is obvious difficulty in finding that it can be satisfied in cases where an employee has engaged in deliberate wrongdoing for his or her own benefit. Indeed, it would be impossible to satisfy in the context of claims alleging sexual abuse by employees or persons in analogous positions: such conduct must be the very antithesis of what the person concerned would be expected to do. Unless all such claims are to fail another approach needs to be taken.
The judgment of McLachlin J in the Supreme Court of Canada in Bazley^65 introduced a different and a more satisfactory approach. Her Honour maintained that vicarious liability was generally appropriate where there was a significant connection between the creation or enhancement of a risk and the wrongful act, even if unrelated to the employer’s desires. Relevant factors might include the opportunity that the enterprise afforded the employee to abuse his or her power; the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; the extent of power conferred on the employee in relation to the victim; and the vulnerability of potential victims to wrongful exercise of the employee’s power.
Applying these principles to the particular facts, it was held that a foundation operating residential care facilities for troubled children was vicariously liable for paedophilic assaults by a caregiving employee. There was a strong connection between the role that the employee was required to carry out and the opportunities to commit the wrongful acts. The employee’s duties included general supervision and also intimate activities like bathing and putting the children to bed, and in these circumstances the employer was seen as having created or enhanced the risk of his sexual wrongdoing. By contrast, in Jacobi v Griffıths ,^66 another decision of the Supreme Court delivered on the same day as Bazley , it was held that a children’s club was not vicariously liable for sexual abuse by an employee away from the club premises and outside working hours. The employment gave the opportunity to commit the assaults, but the employee was not placed in a special position of trust with regard to ‘care, protection and nurturing’, and the actual work
65 [1999] 2 SCR 534 at 559–60. 66 (1999) 174 DLR (4th) 71; [1999] 2 SCR 570 ( Jacobi ).
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should be applied, but only Lord Millett endorsed the importance that the Canadian decisions attached to the creation of risk. In Christian Brothers the Supreme Court took the further step and held that there needed to be proof that the defendant caused a material increase in the risk that abuse would occur. In Lord Phillips’s words:
Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.
These are the criteria that establish the necessary ‘close connection’ between relationship and abuse. I do not think that it is right to say that creation of risk is simply a policy consideration and not one of the criteria. Creation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability.^70
In the instant case the close connection between the relationship between the brothers and the Institute and the abuse committed at the school was made out. The relationship between the Institute and the brothers enabled the Institute to place the brothers in teaching positions and, in particular, in the position of headmaster at St William’s. So there was a very close connection between the relationship between the brothers and the Institute and the employment of the brothers as teachers in the school. Living cloistered on the school premises were boys who were vulnerable because they were children in the school, because they were virtually prisoners, and because their personal histories made it very unlikely that if they attempted to disclose what was happening to them they would be believed. The brother teachers were placed in the school to care for the educational and religious needs of these pupils. Abusing the boys in their care was diametrically opposed to those objectives but, paradoxically, that very fact was one of the factors that provided the necessary close connection between the abuse and the relationship between the brothers and the Institute that gave rise to vicarious liability on the part of the latter. It was not a borderline case. It was one where it was fair, just and reasonable, by reason of the satisfaction of the relevant criteria, for the Institute to share with the Middlesbrough defendants vicarious liability for the abuse committed by the brothers.^71
70 Christian Brothers [2013] 2 AC 1; [2013] 1 All ER 670; [2012] 3 WLR 1319; [2012] UKSC 56 at [86]–[87]. 71 The close connection test also has been applied where the link was more tenuous. In Maga v Archbishop of Birmingham [2010] All ER (D) 141 (Mar); [2010] 1 WLR 1441; [2010] EWCA Civ 256 (see J Bell, ‘Vicarious Liability for Sexual Abuse’ (2010) 69 CLJ 440; P Morgan, ‘Distorting Vicarious Liability’ (2011) 74 MLR 932; L Hoyano, ‘Ecclesiastical Responsibility for Clerical Wrongdoing’ (2010) 18 TLR 154; P Giliker, ‘Lister revisited: Vicarious Liability, Distributive Justice and Course of Employment’ (2010) 126 LQR 521) a claim was brought against the Birmingham Archdiocese of the Roman Catholic Church in respect of sexual abuse committed by a priest upon the claimant when a boy. The Court of Appeal held unanimously that vicarious liability was established. Various reasons were given, including ‘a degree of general moral authority’ vested in the priest by the church: at [45]. Yet it is hard to see that the relationship between them had a close connection with the
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The decision of the High Court of Australia in Lepore^72 was out of step with these developments. In this case Gleeson CJ and Kirby J, relying on Bazley and Lister , were prepared to accept that an institution might be held vicariously liable for sexual abuse committed by a teacher. However, the other members of the court took different and contrasting views. Gaudron J considered that the only principled basis upon which vicarious liability could be imposed for deliberate criminal conduct was that the defendant was estopped from asserting that the person whose acts were in question was not acting as his or her servant, agent or representative when the acts occurred. Gummow and Hayne JJ, in a joint judgment, considered that recovery against the employer in the case of an intentional tort should be limited to where the conduct was done in the intended pursuit of the employer’s interests or the apparent execution of the authority which the employer held out the employee as having, and there was not the slightest semblance of proper authority to sexually assault a pupil.^73 Callinan J thought that claims of abuse had to fail because deliberate criminal misconduct lay outside, and usually far outside, the scope or course of an employed teacher’s duty. However, an alternative analysis favoured by McHugh J was that sexual abuse by a teacher of a child amounted to a breach of a non-delegable duty owed by the institution to the child. We will be returning to this last question. In Prince Alfred^74 the High Court of Australia recognised that, as a result of the differing views expressed in Lepore , there was a need for some guidance to be provided to lower courts so as to reduce the risk of unnecessary appeals arising out of its uncertainties. French CJ, Kiefel, Bell, Keane and Nettle JJ, in a joint judgment,^75 noted that recent decisions in Canada and the United Kingdom had developed tests for imposing vicarious liability which had regard to the connection between the wrongful act concerned and the employment and, in the United Kingdom, to what a judge determined to be fair and just. These new tests of connection were devised not only to provide an explanation for cases of the kind to which they were initially addressed — involving the sexual abuse of children in educational, residential or care facilities by employees having special positions with respect to the children — but also to serve as a basis for vicarious liability which might apply more generally. But general principle of that kind depended upon policy choices and the allocation of risk, which were matters upon which minds might differ. An acceptable general basis for liability had eluded the common law of Australia,
acts of abuse. The claimant was not a Roman Catholic and did not engage with the priest on a religious level. The ‘grooming’ that preceded the abuse occurred in the course of youth work carried on by the priest for the benefit of Catholics and non-Catholics alike. The case looks like one where the wrongdoer’s position as priest gave him the opportunity to commit the abuse, but no more than that. 72 (2003) 212 CLR 511; 195 ALR 412; [2003] HCA 4; BC200300126. 73 C Beuermann, Strict Liability for the Wrongdoing of Another in Tort , PhD Thesis, Australian National University, 2012, argues that authority is significant because of the potential it provides for abuse. The potential exists because of the risk that an employer will abuse his or her authority by creating a conflict between a person’s duties as employee and a person’s duties under the general law. There is no real potential if the person’s conduct is intentional or wilful, and thus, on this view, no basis for imposing vicarious liability. 74 [2016] HCA 37; BC201608462. 75 Gageler and Gordon JJ delivered a brief concurring judgment.
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