Historic Abuse

There has been much media coverage of historical abuse claims recently, with some arrests suggesting that the abuse may have been far more prevalent than many people ever suspected. It is an area of law that poses many difficulties, for both the claimant and the defendant companies or organisations that may have unwittingly employed an individual likely to have been both cunning and manipulative.

The precise criteria for vicarious liability, in cases of sexual abuse cases specifically, are still being refined by judicial decisions.

Broadening the scope

The recent case of The Catholic Child Welfare society and others v Various Claimants and The Institute of the Brothers of the Christian Schools and others [2012] UKSC 56, shows the broadening scope of vicarious liability and the challenges it poses to defendants. A group of 170 claimants alleged that they were subjected to physical and sexual abuse while at St. William's approved school. The claims were brought against two groups of defendants; the Middlesbrough defendants, consisting of various bodies and representatives of the Diocese of Middlesbrough, and the Institute.

At first instance, the Middlesbrough defendants alone were held to be vicariously liable for all acts of abuse by the teaching brothers at the school. The institute argued that the relationship between the teaching brothers and the institute itself was not close enough to hold the institute vicariously liable for the alleged assaults perpetrated by the teaching brothers.

The institute argued that only the body who managed and employed the brothers in their role as teachers in the school, had a sufficiently close relationship with them for vicarious liability to be established. The matter was then appealed to the Supreme Court.

Relationship

The Supreme Court found that it was fair, just and reasonable for the Institute of the Brothers of the Christian Schools to share vicarious liability for abuse committed by its brothers. The Supreme Court held that vicarious liability could be established where a relationship, "akin," to employment existed, as was found to be the case between the Institute and the teaching brothers. This relationship was held to have all the essential elements of that between employer and employee.

On the facts, the relationship between the teaching brothers and the Institute were arguably much closer than that of employer and employee.

The court also found that the close relationship between the teaching brothers and the Institute facilitated the acts of abuse in that it placed the abuser in a position of authority and in close physical proximity to the victims. The Institute, in appointing various brothers in teaching positions, and in its placing a brother as a headmaster responsible for running the school, had significantly increased the risk of abuse against vulnerable children in the residential school.

This was not regarded as a borderline case. It was found just and reasonable to find the Institute vicariously liable along with the Middlesbrough defendants.

Criteria

Whilst the precise criteria for imposing vicarious liability for sexual abuse are still in the course of refinement by judicial decision, this decision further broadens the scope of vicarious liability in sexual abuse cases.

This decision highlights the need to consider potential vicarious liability between each defendant for the acts of a wrong doer. Careful consideration should be given to each potential defendant in order to determine who should be liable and/or whether there is scope for liability to be apportioned between those parties.

The application of ‘dual’ vicarious liability in abuse claims is a key issue in certain abuse cases. Where an employee is found to be a part of the work/business of more than one employer, at any rate and for a relevant period, liability may be apportioned between those employers making each answerable for that employee's behaviour.

Examples of such an application of dual vicarious liability may arise were a local authority provides services to individuals who are also under the care of a private company/ charity. This may be relevant, to care homes in which social services also have involvement; where a charitable organisation has links with private companies; or local authorities providing partnership services or under umbrella service provision contracts.

Causation

Causation remains a complex area in these types of cases - particularly those cases involving emotional and sexual abuse. Claimants are often already vulnerable and have difficult personal circumstances which can include physical and mental health issues. Establishing the causative role of the abuse in any (psychiatric) injury remains a complex issue. It is crucial to establish the extent to which the acts of abuse alleged have caused and/or exacerbated any pre-existing condition.

Thorough reviews of all available documentation and medical records should take place at the earliest possible opportunity. It is critical to preserve all evidence. There are often reams of relevant records such as social care, antecedents and probation records.

Abuse cases are always highly sensitive especially in the light of the recent flurry of public and media attention. The involvement of high profile personalities has raised the profile of issues surrounding abuse. This will inevitably lead to an increase in the number of injury claims.

Abuse claims remain complex and are often difficult, but not impossible, to defend. As with all types of cases they are subject to opportunism, exaggeration and even fraud. This puts even more significance and importance on ensuring that the most appropriate defence strategy and tactics are established at the outset.