Thanks Roderick;
Perhaps there was a bit of hyperbole there in the description of the decision... While we can agree to disagree on some of these points (I will need to keep on working out the implications), I appreciate your feedback. I am interested to hear that an appeal is happening in Woodland, which I think would provide a good opportunity for the SC to agree with the Australian HC that the relationship of educational authorities and minor children is a ground for non-delegable duty. Thanks in particular for your comments about the Institute and whether or not even on my preferred analysis it would have had an NDD. I tend to think it would, as it was a "body" to which parents and guardians entrusted the care of children, presumably on the basis of its reputation (as it then was) and stated aims of ministry. But I agree it is debatable.
Warm regards
Neil
Neil Foster
Associate Professor,
Newcastle Law School;
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
MC158, McMullin Bldg
ph 02 4921 7430
fax 02 4921 6931
http://www.newcastle.edu.au/staff/profile/neil.foster.html
http://works.bepress.com/neil_foster/
http://simeonnetwork.org/testimonies/119/Neil_Foster
>>> Roderick Bagshaw <roderick.bagshaw@law.ox.ac.uk> 11/22/12 11:56 PM >>>
A few thoughts prompted by Neil's stimulating post (Thanks, Neil):
a. If /Catholic Child Welfare Society v Various Claimants /[2012] UKSC
56 is 'the worst private law decision [Neil has read] from a superior
court in some time', then I think he has been unusually fortunate! My
opinion is that it's an excellent decision -- unanimous, concise, free
from cut-and-paste pseudo-analysis, and -- most of all -- decisive: it
seeks to move English law forward by deciding three contested questions:-
1. Is there a group of relationships to which vicarious liability can
apply that can be called 'the akin-to-employment group', because the
relationships are sufficiently similar to straightforward contractual
employment? Answer given: Yes. And para 47 tells us that we should look
at five 'incidents' of employment listed in para 35 to determine if a
particular relationship is sufficiently 'akin-to-employment'. I agree
with Neil that the scope of this group of relationships will generate
some uncertainty -- but at least we have a decisive answer and some
guidance.
2. Can more than one defendant be vicariously liable for a tort? (Dual
vicarious liability) Answer given: Yes. And we should use Rix LJ's
approach in /Viasystems/. (Perhaps of particular use where the primary
tortfeasor works under some sort of 'chain of command' but an important
link in the chain (eg the one that is doing most by way of day-to-day
instruction and supervision) is not his employer.)
3. How should 'closeness of connection' between 'employment' and abuse
be measured in England? Answer given:(para 86) the way in which the
'employer' deployed its 'employee' was such that it 'created or
significantly enhanced the risk that the victim or victims would suffer
the relevant abuse'. Again, there's still work to be done to clarify
this, but at least the Supreme Court has made a decisive - and
comprehensible - choice.
b. Neil suggests that what the Supreme Court said about 'control' might
cast doubt on the future of the distinction between employees and
independent contractors. I don't agree with that. I think the Supreme
Court simply recognises that 'control' [over how duties are performed]
cannot be a defining feature of employment any more. So, at para 36:
'Today it is not realistic to look for a right to direct how an employee
should perform his duties as a necessary element in the relationship
between employer and employee.' I don't think rejection of a particular
test for identifying the distinction implies an abandonment of the
distinction.
c. Neil suggests 'non-delegable' duty might have been a preferable
focus. No doubt that argument can be made forcefully. But perhaps worth
highlighting that 'non-delegable duty' might have led to a different
outcome in this case: the religious institution that the abusers were
members of did not itself own or manage the school where the pupils were
abused, so it isn't easy to see how it (the religious institution)
assumed a 'non-delegable' duty towards the pupils. (The UK Supreme Court
may soon get a chance to discuss the 'non-delegable duty' of schools
since it granted permission to appeal in /Woodland /v /Essex /(school
swimming lesson)).
d. I agree with Neil that there are a few strange moments in the
judgment -- such as para 61, which he highlights -- and that the account
of underlying policy is rather thin (though not, in my opinion, any
thinner than that offered in comparable cases elsewhere). But overall,
I'd commend the decision.
Best wishes
Roderick
The Catholic Child Welfare Society and others (Appellants) v Various
Claimants (FC) and The Institute of the Brothers of the Christian
Schools and others (Respondents)
On 22/11/2012 00:38, Neil Foster wrote:
> Dear Colleagues;
> Thanks for noting this, Phillip. This decision, /Catholic Child
> Welfare Society v Various Claimants /[2012] UKSC 56 (21 Nov 2012) is
> perhaps the worst private law decision I have read from a superior
> court in some time.
>
> Let me make it clear from the outset that I do not object to the
> /outcome/, holding the De La Salle Brothers civilly liable for the
> consequences of the horrendous cases of child abuse committed by the
> members of the order. This has become a huge issue in Australia in the
> last week, with the Prime Minister here announcing a national Royal
> Commission to investigate cases of institutional child abuse and
> alleged cover-up by the authorities, not only in the Roman Catholic
> church but in other private and Government institutions. Locally, in
> my city of Newcastle, the State Government previously announced that
> it would run an inquiry into allegations of cover-up of abuse by
> church authorities. That may lead to successful claims for damages in
> the future, and if it does, I completely support the outcome. Indeed,
> as a Christian, I completely agree with recent comments to the effect
> that : "If it comes to it, the church must be willing to embrace
> bankruptcy, lose property and all power, not in employing lawyers to
> protect it, but in doing whatever it takes to seek recompense for
> those damaged under its care."
>
http://publicchristianity.org/library/whatever-it-takes-sexual-abuse-and-the-church#.UK1yi4V16Kw
> *BUT*- distorting the established rules of private law liability to
> achieve this result is not a good policy. And that is what this
> decision does.
>
> The facts of the case were that abuse had been committed over some
> years by Brothers, some of whom were employees of a range of bodies
> whom the court calls the "Middlesborough Defendants" (the Employers).
> It was accepted in the lower courts, and not challenged in the SC,
> that those who employed the Brothers could be held vicariously liable
> for their sexual assaults. (I completely accept that is right, of
> course, under established precedent.) But those Defendants wanted to
> also have a ruling that the De La Salle Institute were vicariously
> liable for the actions of the Brothers (and whatever the status of the
> Institute as an unincorporated body, they were accepted not to be the
> employers of the brothers.) Note up front that what we have here is in
> effect an action between 2 insurance companies- the claimants who have
> been harmed are already going to recover damages from the Employers;
> the issue is whether the damages will be also apportioned to the
> Institute.
>
> There is a complexity about the legal personality of the Institute, as
> I mentioned; I don't really object to the way that the SC deals with
> that, at least on first reading. So I will assume that in one way or
> another one could access the funds of the local representatives of the
> Institute if other principles of vicarious liability were established-
> see eg [33].
>
> In brief, on vicarious liability (VL) in the SC here (Lord Phillips,
> with whom 4 other members of the Court agree) we see that:
>
> (1) the decision of the CA in /Viasystems/ should be accepted as good
> law- see [20](iv) where the principle is said to be that "two
> different defendants, D2 and D3 [may] each.. be vicariously liable for
> the single tortious act of D1; and in [21] this is said to be
> unchallenged by counsel and to represent a "sound and logical
> incremental development" of the law.
> I cannot quite believe that counsel for the Institute chose not to
> challenge /Viasystems/. I have thought this decision was bad law since
> it was first handed down (indeed, I see on going back to the ODG
> archives that it was the first case I posted about on this forum in
> 2005!) It represented a major transformation of the law of vicarious
> liability. It was unclear at the time whether it meant that a worker
> could have 2 employers, or simply that we would extend the
> circumstances in which vicarious liability would apply beyond that of
> employment. It now seems that the authoritative interpretation of the
> case is that of Rix LJ (see [45]), noted at [43] here- and the test is
> said to be : is the employee "so much a part of the work, business or
> organisation of both employers that it is just to make both employers
> answer for his negligence"? In one sense I suppose this is just an
> extension of the "organisation" test for employment which has been
> followed in the UK (but clearly rejected by the High Court of
> Australia since /Stevens v Brodribb/.)
> A key fact about /Viasystems/ is that since it was decided in 2005 it
> has *never been applied!* That is, while its authority has been
> conceded in a couple of cases, no other case has come down on the side
> of actually finding dual vicarious liability. But now it seems we have
> an explanation for this in Lord Phillip's judgment at [46]- those
> cases were just plain wrong! Rix LJ's test should have been applied,
> as it is "arguable that the facts of each case could have supported a
> finding of dual vicarious liability".
> So we end up with a situation where the new test is that a
> relationship can give rise to vicarious liability if it is "akin to
> that between an employer and an employee".
>
> (2) This was the approach of the CA in /JGE v The Trustees of the
> Portsmouth Roman Catholic Diocesan Trust /[2012] EWCA Civ 938, which
> we have commented on here previously and which I also criticised at
> the time. I must say I have never before seen an appeal where the
> appellate court has decided to dispense its opinion on a case which is
> not before it so freely, as in this decision and its comments on
> /JGE/. Clearly Lord Phillips thinks the decision of Ward LJ in that
> decision was brilliant: "the impressive leading judgment" he calls it
> in [19], lauding its scholarship. But it was not the decision under
> appeal! I have no idea whether an appeal is pending, but after these
> gratuitous comments one would have to say that any appeal would be
> useless. So serious arguments that might have been presented on either
> side are not to be heard by the SC, who have effectively decided two
> appeals for the price of one.
>
> (3) The distinction between an employee and an independent contractor,
> illogical as it may sometimes seem, is still a part of the common law.
> But the comments at [36] virtually wipe out the difference. Lord
> Phillips says:
>
> "Today it is not realistic to look for a right to direct how an
> employee should perform his duties as a necessary element in the
> relationship between employer and employee. Many employees apply a
> skill or expertise that is not susceptible to direction by anyone else
> in the company that employs them. Thus the significance of control
> today is that the employer can direct what the employee does, not how
> he does it."
>
> But the right to direct /what/ is done, not /how/ it is done, is
> precisely the defining characteristic of an "independent contractor"
> relationship. Is the SC saying that we should just abandon this
> distinction altogether? Allow vicarious liability for all independent
> contractors? The massive implications of such a shift (including, of
> course, in the calculation of risk involved in issuing insurance
> policies) is not discussed at all in this throw-away line.
>
> (4) The bottom line? We now have a new test for what is called "stage
> 1" of the question of vicarious liability. See [60]: VL can exist
> where the relationship between [D1 and D2] is "sufficiently akin to
> that of employer and employees".
>
> Bizarrely, after formulating a foundational change to private law, in
> para [61] Lord Phillips blithely suggests that the case could have
> been decided on simpler grounds! VL could be established if a brother
> was "acting for the common purpose of the brothers as an incorporated
> association". This may or may not represent the rule for VL of members
> of an unincorporated association, but of course it was clearly not
> relevant to this case, where sexual abuse could not in any way have
> been described as the "common purpose" (one would sincerely hope!) of
> the association. It is very hard to know where para [61] fits, since
> his Lordship then goes on to discuss the real issue here: in what
> sense is sexual abuse part of the "scope of employment" (or, we now
> presumably have to say, the "scope of the quasi-employment"?)
>
> (5) There is a sound review of this issue in the recent cases on VL
> for sexual abuse in employment situations. I have to concede that his
> Lordship is justified in his comment at [82] that the High Court of
> Australia's decision on the matter in /Lepore/ shows "a bewildering
> variety of analysis". But it does at least stand in the line of
> /Bazley/ and /Lister/ in holding that VL for sexual abuse is possible.
> In the end I agree with the conclusion that, if the relationship
> between the Institute and its Brothers /were/ legally sufficient to
> create vicarious liability, the abuse here would have fallen within
> the class of activities for which VL should be imposed, as the D
> "created or significantly enhanced the risk that the victim would
> suffer the relevant abuse"- [86].
>
> To conclude: there is a very significant comment at [85] which I think
> arguably provides a clue to the way that this case was resolved:
> "There is currently concern at the possibility that widespread sexual
> abuse of children may have occurred within the entertainment
> industry". Even to an observer outside the UK it seems that the shadow
> of Jimmy Saville lies over these proceedings. The outrage and anger at
> what happened in the BBC is perfectly justified. But I have to say it
> may also have had an impact on the way that this decision is framed.
>
> Lord Phillips is perfectly correct to note at [34] that VL is a
> "longstanding and vitally important part of the common law of tort".
> But I disagree with his too simplistic formulation that
>
> "*The* policy objective underlying vicarious liability is to ensure,
> insofar as it is fair, just and reasonable, that liability for
> tortious wrong is borne by a defendant with the means to compensate
> the victim." (emphasis added)
>
> This is one of the mix of "policy objectives" but it is not the only
> reason that the law has had for the doctrine. The too-great emphasis
> on simply looking around for someone with deep pockets who is
> "connected" to the harm in some way is not sufficient. This judgment
> will open up a wide and unpredictable area for "quasi-employment"
> relationships to create vicarious liability.
>
> The fact is that the common law already has a doctrine under which
> strict liability can be imposed for the actions of non-employees. It
> is called the doctrine of "non-delegable duty". This post is already
> too long but I only want to say that I think this doctrine, with
> appropriate and genuinely "incremental" tweaking, could have provided
> a perfectly orthodox ground for finding the Institute liable here. The
> tweaking that would be needed would be (1) for the UK courts, as has
> been done in Australia for some years, to recognise the relationship
> between an educational institution and the minor pupils it takes care
> over, as one creating a "non-delegable duty"; (2) for courts
> generally, as sadly is precluded by the illogical ruling in /NSW v
> Lepore/ in Australia, to recognise that a non-delegable duty can
> create liability for intentional torts in the same way that it creates
> liability for negligence.
>
> Regards
> Neil
>
>
>
> *
> *
> On 21/11/2012, at 9:36 PM, Phillip Morgan wrote:
>
>> Dear List Members,
>>
>> This morning the United Kingdom Supreme Court gave judgment in the
>> CCWS case, another vicarious liability abuse case, this time
>> concerning vicarious liability in the context of an unincorporated
>> association, The Institute of Brothers of the Christian Schools.The
>> case looks at vicarious liability in the context of unincorporated
>> associations, and examines (rather briefly) the role of risk at the
>> second stage of establishing vicarious liability.
>>
>>
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0230_Judgment.pdf
>>
>> Kind regards,
>>
>> Phillip
>> _______________________
>> Phillip Morgan,
>> Lecturer in Law,
>> York Law School,
>> The University of York,
>> Freboys Lane,
>> York,
>> YO10 5GD,
>> United Kingdom,
>>
https://www.york.ac.uk/law/staff/morgan/
>>
https://www.york.ac.uk/law/
>>
>
> Neil Foster
> Associate Professor in Law,
> Newcastle Law School;
> Faculty of Business & Law
> University of Newcastle
> Callaghan NSW 2308
> AUSTRALIA
> Room MC158,
> McMullin Building
> ph 02 4921 7430
> fax 02 4921 6931
>
>
http://www.newcastle.edu.au/staff/profile/neil.foster.html
>
>
http://works.bepress.com/neil_foster/
>
>
http://simeonnetwork.org/testimonies/119/Neil_Foster
>
>
>
>
>
>