Various Claimants v Institute of the Brothers of the Christian Schools
Catholic Child Welfare Society v Various Claimants
Citations:  UKSC 56;  2 AC 1;  3 WLR 1319;  1 All ER 670;  IRLR 219;  ELR 1.
The defendant was the board of managers for a school. The school was connected to an unincorporated association which was aimed at bringing religious education to children (‘the Institute’). To this end, the Institute provided the school with lay brothers from their organisation as teachers and other school staff. The school employed the lay brothers. Several of these brothers sexually abused the claimants. The defendant was held vicariously liable at trial for the torts committed by the lay brothers.
The claimants argued on appeal that the Institute was also vicariously liable. The Institute was arranged in a corporate-style hierarchy. However, the lay brothers were not the Institute’s employees and had no contractual relationship with the Institute. However, the brothers had a moral obligation to obey the Institute and in practice it exercised a great deal of control over their lives. For example, all the brothers’ earnings were given to the Institute. The Institute saw to the brothers’ needs using their funds. The Institute were heavily involved in running the school, since a senior brother was normally provided as the school’s headmaster.
- Could the Institute be liable for the acts of non-employees?
- Was the sexual abuse committed in the course of the brothers’ engagement by the Institute?
The Supreme Court held in favour of the claimants. The relationship between the Institute and the brothers could give rise to vicarious liability: it was ‘akin to contract’. The torts were sufficiently connected to that relationship.
This Case is Authority For…
The Supreme Court reformulated the test for vicarious liability. To establish vicarious liability, the claimant must now show that:
- There is a relationship between the tortfeasor and employer which is capable of giving rise to vicarious liability. This is not a fixed category, and includes employees and relationships ‘akin to contract’;
- There is a sufficiently close connection between that relationship and the tort.
Lord Phillips explained that the fact that the relationship creates or significantly enhances the risk of the tort occurring is a strong indication that there is a sufficiently close connection. He also endorsed the ‘enterprise risk’ theory of vicarious liability. He argued that there were five factors which would make it fair, just and reasonable to impose vicarious liability:
- The defendant is more likely to have the resources to compensate the claimant than the primary tortfeasor;
- The tort was caused by activities done on the defendant’s behalf;
- The tortfeasor is likely a part of the defendant’s business activities;
- The defendant created the risk of the tort by employing the primary tortfeasor;
- The defendant is likely to have some control over the primary tortfeasor.
Not all of these factors need to be present, and as Lord Reed made clear in Cox v Ministry of Justice  UKSC 10, some have more significance than others.