The applicability of a two-stage test to establish vicarious liability may seem trite law. In the context of abuse claims, cases such as Various Claimants v Institute of the Brothers of the Christian School 2012 and Armes v Nottinghamshire County Council 2017, are examples of where vicarious liability has been found to attach to an organisation for abusive acts perpetrated by another (in the contexts of teachers at a residential school and foster carers appointed by a local authority – subjecting those in their care to acts of abuse).
But as more cases have been decided, the two-stage test has been refined. This gives better guidance than was previously available, albeit there remains no prescriptive test on when vicarious liability will attach and when it will not.
A key decision this year is undoubtedly the Supreme Court’s ruling in the case of Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB 2023. This case involved consideration of whether the faith establishment should be held vicariously liable for a rape perpetrated by one of its elders against an adult member of the congregation. Overturning the High Court and Court of Appeal, the Supreme Court ruled that vicarious liability could not attach. This was because, specifically, stage two of the well-established test for vicarious liability could not be made out for want of a sufficiently close connection between the elder’s position and the abhorrent act committed.
Lord Burrows, with whom all other members of the Supreme Court agreed, concluded that it was now possible to pull together the most important 21st century decisions on vicarious liability and encompass them into five principles:
- There are two stages to determine vicarious liability. The first stage concerns the relationship between the defendant organisation and the wrongdoer. Stage two concerns the connection between the wrongdoing complained of and the ‘employment’ relationship.
- Stage one depends on features such as whether the wrongdoer’s work is paid for, how integral to the organisation it is, and the extent of control the organisation has over the wrongdoer to determine if the relationship is ‘akin to employment’.
- Stage two concerns how ‘closely connected’ the wrongdoing was to the acts that the wrongdoer was authorised to do, so that it can fairly be regarded as done in the course of employment. Sexual abuse of a child by someone employed and authorised to look after that child will generally satisfy the test (such as Christian Brothers). However, carrying out a wrongful act in pursuance of a personal vendetta against an employer will not (WM Morrison Supermarkets plc v Various Claimants 2016).
- The majority of cases can be determined without the need to consider the underlying policy justification for vicarious liability.
- The same two tests and stages apply equally to cases involving allegations of sexual abuse.
Set against other decisions, such as Blackpool Football Club v DSN 2021 and TVZ v Manchester City Football Club 2022, it might reasonably be said that a body of case law has developed which will be welcomed by defendants. Each case stands as an example of where the defendant organisation has not been held vicariously liable for the actions of another who is guilty of perpetrating abusive acts.
The claimant in DSN failed at stage one of the test as the volunteer scout accused of sexual abuse was not in a relationship akin to employment with the defendant football club. Although TVZ was primarily a case about limitation, the coach who was guilty of abusing the claimants was not in a relationship of employment with the club and, even if he had been, there would not have been the requisite close connection between such a relationship and the abuse perpetrated.
A recent judgment which may further indicate the direction of travel is DJ v Barnsley Metropolitan Borough Council & AG 2023, which was handed down in July. This case concerned the sexual abuse of a child in the foster care of his uncle. At first instance, the court held that the relationship between the foster carer and the defendant authority was not akin to employment and therefore did not satisfy the first stage test. The matter then went to the Court of Appeal and, before giving judgment, Lambert J awaited the decision in BXB. She carefully worked through the five principles and concluded that the arrangement was a family one and not one akin to employment. As such, the defendant was not vicariously liable.
While it remains accurate that each case will turn on the facts, it is important to understand the detailed nature of the relationship between the wrongdoer and the defendant and how it came to be. It is then necessary to consider the nature of the role and how closely it is connected to the wrongdoing complained of. Recent decisions make it clear that the courts would not endorse any prescriptive test, but the principles set out in BXB and the examples of other recent decisions can certainly assist when considering vicarious liability in abuse cases.