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Petitioner: THE CATHOLIC CHILD WELFARE SOCIETY and others VS Respondent: VARIOUS CLAIMANTS JUDGMENT
Court Name: Supreme Court of United Kingdom Judge(s): Ch. Muhammad Amin Javed Title:THE CATHOLIC CHILD WELFARE SOCIETY and others vs VARIOUS CLAIMANTS
JUDGMENT
Reported As: 2013 SCMR 787 Result: Appeal allowed Judgment JUDGMENT ' LORD PHILLIPS (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agree) Introduction 1. In 1680, in the city of Rheims, Jean-Baptiste De La Salle founded an Institute known as the Brothers of the Christian Schools ("the Institute"). The members of the Institute are lay brothers of the Catholic Church. They are now to be found in many countries, including the United Kingdom. Their Rules, approved by Papal Bull in 1724, provided that:- "they should make it their chief care to teach children, especially poor children, those things which pertain to a good and Christian life." ' That has remained the mission of the Institute and the mission and "apostolate" of each brother. This appeal is concerned with the legal implications of acts of physical and sexual abuse committed, or alleged to have been committed, by brothers who were, or should have been, pursuing that mission at a residential institution at Market Weighton for boys in need of care called St William's ("the school"). 2. The Institute is, in civil law, an unincorporated association of its membeRs, It has, however, corporate features, including a hierarchy of authority. Steps have been taken on behalf of the Institute to create legal bodies that are capable of owning property and entering into legal relations in pursuance of the Institute's mission. Some of these are reflected in the identity of the individual defendants who have been described collectively as "the De La Salle Defendants". Expert evidence was given as to the nature and status of the Institute as a matter of canon law. These
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matters have not been explored before this Court. The preliminary issue with which this Court is concerned is "whether the Institute is responsible in law for the alleged acts of sexual and physical abuse of children at St William's committed by its membeRs," ' To a large extent this preliminary issue has been canvassed as if the Institute were a corporate body having separate legal identity. I shall refer to "the Institute" as if this were the case, although it will be necessary in due course to grapple, with the nature of the Institute. 3. This appeal requires this Court to review the application of the principles of vicarious liability in the context of sexual abuse of children. Unhappily this is today not an unusual context and it is one in which vicarious liability has received recent consideration not merely by other courts in the United Kingdom, but at the highest level in Canada and Australia. 4. The claims in this group action are brought by 170 men in respect of abuse to which they allege that they were subjected at St William's between 1958 and 1992. The claims are brought against two groups of defendants. The first group consists of "the Middlesbrough Defendants". They took over the management of the school in 1973 and inherited, under statute, the liabilities of the managers of the school before that date. They, or those they represent, concluded contracts of employment with the brother teacheRs, They were held at first instance to be vicariously liable for acts of abuse by those teachers and no longer challenge that liability. By this appeal they seek, however, to challenge the judge's finding, confirmed by the Court of Appeal, that the second group of defendants, the De La Salle Defendants, were not also vicariously liable for the acts of abuse committed by members of the Institute. The claimants are content to look to the Middlesbrough Defendants for their relief and anxious not to risk liability in respect of the costs of the appeal to this Court. Accordingly they have played no part in the appeal. 5. This case is almost a carbon copy of McE v De La Salle Brothers [20071 CSIH 27; 2007 SC 566, in which a similar preliminary issue was tried. In that case a single pursuer claimed damages in respect of physical abuse to which he had been subjected by Brother Benedict, a De La Salle brother. While at a school in Scotland. The claim was however a test case as there were pending some 150 additional cases where abuse was alleged at the hands of brothers at that school The Court of Session held that there was no basis upon which the allegation of vicarious liability on the part of the Institute could succeed and the claim was accordingly dismissed. ' The facts 6. No significant challenge has been made in respect of the facts found by the judge of first instance, His Honour Judge Hawkesworth QC, sitting as a judge of the High Court and these have formed the basis of the Statement of Agreed Facts and Issues. ' The Institute 7. The head of the Institute is the Superior General in Rome, elected by the General Chapter of the brothers, which is itself made up of elected representatives of all brotheRs, For the purposes of administration the Institute is divided into districts called Provinces, each headed by a "Provincial". At different times there has been a London Province, an English Province and a Great Britain Province. Within a province the brothers live in communities, each headed by a Director. 8. The brothers are bound together by lifelong vows of chastity, poverty and obedience and by detailed and very strict rules of conduct ("the Rule"). The Rule has its origin in the rules approved by the Pope in 1724, but these were amended from time to time. During the period to which this action relates the relevant rules were the Common Rules of 1947. The vow of obedience carries the obligation to obey the superiors of the Institute, including the Provincial and the Director of the community. Each brother undertakes to "go wherever I may be sent and to do whatever I may be assigned by the [Institute] or its superior"'
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9. The Rule is highly particular and governs all aspects of the life and conduct of a brother including such matters as the taking of communal meals and other required communal activities. It contains provisions governing how the children taught are to be treated, including a chapter on correction or punishment which prohibits touching a child or corporal punishment. One chapter deals with chastity and this includes a provision that "They shall not touch their pupils through playfulness or familiarity, and they shall never touch them on the face". There is a requirement to advertise to each other any faults of which they are conscious and extreme reserve is required. For example in speaking to women. Pursuant to the vow of poverty, any brother who is employed to teach by an outside body has to 'hand over all his earnings to the. Institute. In England this duty is performed by entering into a deed of covenant to pay the earnings to a charitable trust. The pleadings disclose that there is a 1947 Trust relating to property held in connection with first the London province and subsequently the Great Britain province, and a 1953 trust relating to property held in connection with the England province. Judge Hawkesworth at paras 30 and 31 recorded that Brother Thomas gave evidence that "the DLS trust had ,ubstantial funds derived from the sale of its properties and from the covenanted funds of the brothers employed in education at St William's and elsewhere". The Institute provides the brothers with the "wherewithal to live" and looks after them after their retirement. 10. The Institute owns schools, presumably through its charitable trusts. Where it does so the teaching is provided by a community of brothers who will usually live within the school. The Director of the community almost always acts as the headmaster of the school. However the Institute never owned St William's. ' St William's 11. In paras 25 to 34 of the leading judgment in the Court of Appeal [2010] EWCA Civ 1106 Hughes LJ has set out the history of St William's, as found by Judge Hawkesworth. It was founded in or about 1865 by a group of Catholic benefactors who placed the school in the ownership of a charitable trust. It was managed by a group of local people as a reformatory school for boys. They entrusted the running of the school to a religious congregation called the Rosminians. They did not prove satisfactory and, in 1912 the managers replaced them with the Institute, under a formal agreement made with the Superior. General of the Institute. This agreement effectively delegated the running of the school to the Institute. Thereafter, up to 1933, the school was entirely staffed by brothers of the Institute. These were members of a community whose bedrooms and refectory were within the school grounds. Most of the brothers in the community worked in the school, but there were some who did not The Director of the community was almost always the headmaster of the school. 12. In 1933 the regime changed pursuant to provisions of the Children and Young Persons Act 1933. St William's became an approved school, for the detention of boys up to the age of 17 who had been convicted of custodial offences. Under the 1933 Act, and the Approved School Rules 1933 made under it, the staff became the direct statutory responsibility of the manageRs, All teaching staff had to be employed by, them under written contracts and the headmaster was made responsible to the managers for the efficient conduct of the school. The managers at this time, as described by the judge, at para 25, were "a self-perpetuating group of like-minded people, linked by their Catholic faith, who would be appointed subject to the Bishop's approval". From this time the managers began to employ lay teachers in addition to the brothers and the proportion of brother teachers to lay teachers fluctuated but generally diminished. In 1954 there were 5 brother teachers and 5 lay teacheRs, 13. The regime changed again in 1973 when the provisions of the Children and Young Persons Act 1969 took effect. St William's then became an "assisted community home" for children in the care of the local authority. Under section 42 of the 1969 Act the responsibility for managing. St William's was vested in "the voluntary organisation responsible for its management, equipment and
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maintenance" or "the responsible organisation". The Middlesbrough Diocesan Rescue Society ("MDRS") undertook this role, replacing the previous manageRs, The MDRS was an unincorporated association consisting of the Catholic bishop of the diocese, as President, and priests appointed by him. On 28 July 1982 the Catholic Child Welfare Society (Diocese of Middlesbrough) ("CCWS"), an incorporated charitable company, replaced the MDRS as the responsible organisation. 14. After 1973 the proportion of brother teachers to lay staff diminished further. After 1976 there were never more than two brother teachers and for much of the time there was only one, while there were as many as a dozen lay teacheRs, Some of these lived on the site in premises apart from those of the dwindling community of brotheRs, Other lay teachers lived in the town. 15. At all times the managers chose to leave it to the Institute, in the form of the relevant Provincial, to designate a brother to act as headmaster of the school. In 1976 the headmaster, Brother Reginald, retired. With the agreement of the MDRS the Provincial replaced him with Brother James, who had been a brother teacher and housemaster at St William's since 1968. Brother James is now Mr Carragher, having been expelled from the Institute. This expulsion followed his dismissal in disgrace from the post of headmaster in 1990 because it had been discovered that he had been guilty of systematic sexual abuse of the boys in his care. In. 1993 Mr Carragher pleaded guilty to a number of offences of sexual abuse and was sentenced to 7 years imprisonment. In 2004, after a 10 week trial, he was found guilty of 21 counts of serious sexual offences against boys, spanning a period of some 20 years, and sentenced to 14 years imprisonment. Some of the claimants allege that they were abused by Mr Carragher. Others allege abuse by other brotheRs, Of the 150 claimants on whose behalf particulars have been given, 146 allege that they were abused by members of the Institute. 16. After the dismissal of Mr Carragher the number of boys at the school dwindled. The Institute disengaged from the school and it finally closed in 1994. Control 17. The undertaking by each brother to go wherever he might be sent meant that the Institute controlled where it was that the brothers taught. The Institute could not, of course, control whether schools owned by third parties engaged brothers as teacheRs, It could, however, control whether a brother worked in a school that was prepared to engage him. Because the managers of St William's were always keen to have a brother as headmaster of the school, the Institute in effect determined who the headmaster of the school should be. Thus in 1963 the Provincial informed the managers of the school that Brother Dominic would replace Brother Vincent as headmaster and this was accepted. In 1965, by decision of the Superior General in Rome responsibility for St William's was transferred from the English province to the London province. This resulted in the three brothers, including the headmaster and the deputy headmaster, resigning and being replaced by other brotheRs, The managers, with a degree of reluctance, accepted this. 18. It is an agreed fact that "If a brother was sent to a school managed by a third party. The Institute's control over his life remained complete". He remained bound by his vows, and every year the Provincial made an annual visit of inspection of the community and the brothers living in it, which embraced their role within the school. ' An overview of the issues 19. The law of vicarious liability is on the move. On 12 July 2012, shortly before the hearing of the appeal in this case, the Court of Appeal handed down its judgments in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938. That case was concerned with the preliminary issue of whether the Diocesan Trust could be vicariously liable for acts of sexual abuse committed by a parish priest in the diocese. The court held, by a majority, that he could. Before us Mr Leggatt QC, for the Middlesbrough Defendants, suggested that the Court would no doubt wish to read the judgments in full. He was right to do so. The hearing of that case before the
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Court of Appeal lasted but a day, but the impressive leading judgment of Ward LJ evidences consideration of case-law and academic writings that goes far beyond the material to which counsel can have had time to refer in that short hearing. At paras 20 and 21 of his judgment Ward Li traces, the origin of vicarious liability back to the middle ages, but rightly identifies that the law upon which he and I cut our teeth rendered the employer. D2, liable for the tortious act of the employee. DI, provided that the act in question was committed "in the course of the employee's employment". Thus, in a case about vicarious liability, the focus was on two stages: (1) was there a true relationship of employer/employee between D2 and Dl? (2) was DI acting in the course of his employment when he committed the tortious act? 20. Since Ward LJ and I cut our teeth the courts have developed the law of vicarious liability by establishing the following propositions: (i) It is possible for an unincorporated association to be vicariously liable for the tortious acts of one or more of its members: Heaton's Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15, 99; Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20, 66-7; Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366. (ii) D2 may be vicariously liable for the tortious act of D1 even though the act in question constitutes a violation of the duty owed to D2 by D1 and even if the act in question is a criminal offence: Morris v CW Martin & Sons Ltd [1966] 1 QB 716; Dubai Aluminium; Brink's Global. Services v Igrox [2010] EWCA Civ; [2011] IRLR 343. (iii) Vicarious liability can even extend to liability for a criminal act of sexual assault: Lister v Hesley Hall [2001 ] UKHL 22; 12002] 1 AC 215. (iv) It is possible for two different defendants, D2 and D3, each to be vicariously liable for the single tortious act of Dl: Viasystems D (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151; [2006] QB 510. 21. None of these= developments of the law of vicarious liability has been challenged by Lord Faulks QC, who has represented the Institute. I consider that he was right not to challenge them, for they represent sound and logical incremental developments of the law. They have, however, made it more difficult to identify the criteria that must be demonstrated to establish vicarious liability than it was 50 years ago. At para 37 of his judgment in this case Hughes LJ rightly observed that the test requires a synthesis of two stages: (i) The first stage is to consider the relationship of Dl and D2 to see whether it is one that is capable of giving rise to vicarious liability. (ii) Hughes LJ identified the second stage as requiring examination of the connection between D2 and the act or omission of D1. This is not entirely correct. What is critical at the second stage is the connection that links the relationship between and D2 and the act or omission of D1, hence the synthesis of the two stages. 22. Both stages are in issue in the present case. There is an issue as to whether the relationship between the Institute and the brothers teaching at St William's was one that was capable of giving rise to vicarious liability. There is also an issue as to whether the acts, or alleged acts, of sexual abuse were connected to that relationship in such a way as to give rise to vicarious liability. 23. It is the Institute's case that the relationship of the individual brothers to the Institute, considered as a body, is insufficiently close to give rise, of itself, to vicarious liability on the part of the Institute for sexual abuse by brother teacheRs, Only a body managing a school and employing a brother in that school as a teacher, will have a sufficiently close relationship to that brother teacher to be vicariously liable for his wrongdoing. That is why the Middlesbrough Defendants are liable and the De La Salle Defendants are not, as held by the courts below. 24. It is the Middlesbrough Defendants' case, as developed by Mr Leggatt, that the courts below have failed to give effect to the principles properly to be derived from the relevant authorities,
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particularly those dealing with vicarious liability for sexual abuse. The necessary closeness of connection between the relationship between the Institute and the brothers and the abuses committed by the brothers is provided by the fact that the Institute sent the brothers to St William's to further the purpose of the Institute, clothed with the status of members of the Institute, and thereby significantly increased the risk that brothers would sexually abuse the children with whom they were in close physical proximity. This is indeed a synthesis of stage 1- the relationship of the brothers with the Institute and stage 2 - the connection between that relationship and the acts of abuse. ' A closer view of the issues 25. I turn then to the central issue that divides the parties. Is the relationship between the individual brothers who taught at the school and the Institute such as to give rise to vicarious liability on the part of the Institute for acts of sexual abuse committed in the school? The Institute accepts that the relationship between the brother teachers and the Middlesbrough Defendants has given rise to vicarious liability on the part of the latter, but contends that this is because the Middlesbrough Defendants entered into contracts of employment with the brothers ant managed and controlled both them and the school. The Institute contends that the relationship between the brothers and the Institute lacks these critical features. The Institute further contends that it cannot be held to be vicariously liable in addition to the Middlesbrough Defendants unless the criteria for dual liability laid down by the Court of Appeal in Viasystems are demonstrated. It contends that these criteria are not demonstrated. Hughes LJ reached a similar conclusion. His judgment focussed largely on the extent to which the brothers were under the control of the Institute, and he concluded that this was insufficient to give rise to vicarious liability. 26. The Middlesbrough Defendants rely on the recent decisions on vicarious liability for sexual abuse as demonstrating that the relationship of employer/employee is not an essential prerequisite. They submit that the closeness of the relationship between brothers and the Institute, the fact that the brothers were sent out to further the object of the institute, namely to teach boys, and the fact that this created a risk of sexual abuse of the boys by the brothers, sufficed to render the Institute vicariously liable for the abuse committed by the brotheRs, ' The nature of "the Institute" 27. Before considering stage 1 of the test for vicarious liability I must address the problem of the Institute. Hughes LJ held, and Lord Faulks now accepts, that it is possible for vicarious liability to arise out of the relationship between one member of an unincorporated association and the other members, at least where the former acts on behalf of the otheRs, He held, however, at para 57 that there was not a sufficiently close connection between the brothers of the Institute scattered all over the world and the torts committed by the brother teachers at St William's to give rise to vicarious liability. This raises the question of whether it is right to treat the De La Salle Defendants as being simply an unincorporated band of brothers scattered around the world. 28. A similar problem perplexed Ward LJ in JGE. The issue in that case was whether there was vicarious liability for sexual abuse committed by a Roman Catholic priest. He observed at para 5 that there had been other occasions on which the Church had been called on to answer for the acts of its clergy and that JGE was the first occasion on which the Church had challenged the allegation that it was the employer of its clergy. The issue had always before been simply whether the acts of abuse had been committed in the course of that employment. 29. The defendants against whom the claim was brought were "the Trustees of the Portsmouth Roman Catholic Diocesan Trust". Ward LJ observed at para 8 that because English law did not recognise the Catholic Church as a legal entity in its own right but saw it as an unincorporated association with no legal personality, the diocese usually established a charitable trust to enable it to own and manage property and otherwise conduct its financial affairs in accordance with
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domestic law. At para 18 Ward LJ remarked that there had been understandable confusion as to whom to sue and that the case had proceeded effectively against the Bishop, though it was the trustees who would be covered by the relevant insurance should liability be established. He added that intuitively one would think that, as a priest is always said to be "a servant of god", the Roman Catholic Church itself would be the responsible defendant, but the Roman Catholic Church could not be a party as it had no legal personality. In those circumstances Ward LJ treated the Bishop as being the person whose vicarious liability was in issue. 30. There are parallels between this aspect of JGE and the present case. The choice of defendants suggests that the claimants may well have been in doubt as to whom they should sue, as they have adopted something of a- scatter gun approach. Of the 35 defendants on the pleadings, the action has proceeded against 13. Of these I select as a typical De La Salle defendant the 10th defendant, Patrick Joseph Campbell "sued on his own behalf and as a former trustee of the 1947 trust and as representing all persons (other than any other party to the claim) who were at any time relevant to the claimant's claims: (i) members of the Order (ii) members of the English Province or the Great Britain Province (iii) responsible for the supervision management or direction of brothers carrying on the work of the England Province or the Great Britain Province, or (v) Trustees of the 1947-trust before 14 July 1992." 31. I can appreciate Hughes LJ's difficulty in accepting that a De La Salle brother in Australia could be vicariously liable for the sexual assault by a brother at St William's. Indeed, there is something paradoxical in the concept of an attempt to…
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