PI Brief Update

Vicarious Liability: The Times, They Are a-Changing - Thea Wilson, 12 King's Bench Walk

15/10/13. “[Vicarious liability] is not a static concept and has adjusted over the centuries to provide just solutions to the challenges of changing times. And times are still a-changing … We need to adapt to the current demands.”

E v English Province of Our Lady of Charity and another¹ per Ward LJ

Introduction

Vicarious liability is a long-established doctrine of English law; dating back at least as far as the seventeenth century². The doctrine was “founded in policy rather than conceptualistic reasoning”³ and essentially creates strict liability of employers for their employees’ acts because for policy reasons it is considered right to impose liability. As with many areas of the common law, the doctrine has always been in a state of evolution, but this has particularly been the case over recent years.

There are essentially two tests to be considered in a case involving vicarious liability. First, whether the relationship between the defendant and the tortfeasor is sufficiently close to be regarded as a master/servant or employer/employee relationship. Second, whether the act complained of was within the course or “scope” of the employment relationship. Both tests have changed considerably over the last half century.

As the nature of working relationships evolved in the late 20^th and early 21^st century, so too has the test for what is an employment relationship. Where previously the Courts looked to the ‘control test’ alone, now numerous tests are considered in order to make that determination (as exemplified in E v English Province of Our Lady of Charity and another).

This article concentrates, however, on the evolution of the second half of the vicarious liability test; what acts are within the scope/course of employment. Here there have been the biggest changes. Here also, the changes have had the greatest implications for practitioners on both sides of the claimant/defendant divide.

Origins of the doctrine

Over a hundred years ago, Salmond set out the principles of vicarious liability as developed by the common law over the preceding three hundred years:

“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.”⁴

From the start of the last century until well into its closing decades, in most cases there was a narrow interpretation of what was within the scope of employment.

The case of Kirby v National Coal Board⁵is an example of this. There, the claimant sued for personal injuries caused by an explosion at the defendant’s mine. An investigation had established that the cause of the explosion was an unknown employee of the defendant striking a match in an area of the mine known as “the waste”. The defendant had strict rules prohibiting employees from entering the mine with either cigarettes or matches. “The waste” was an area of the mine behind a conveyor belt in which employees had no reason to be. Although the Court held that simply entering the mine with prohibited items did not cause the employee to be acting outside the scope of his employment, it held that “the lighting of the match for the purpose of smoking in such circumstances is not misconduct in doing the servant’s work for the master, but it is an independent act unauthorised by the employer”⁶

Since Kirby, the law has moved on. Although this process has been interrupted in places, there has been a steady relaxation of the definition of “scope of employment”.It appears that the doctrine, having evolved from policy considerations has expanded for policy reasons; the judiciary having the object of identifying solvent defendants with a connection close enough to the actual doer of wrong, whether that wrong be negligent, criminal or both, so as to enable the injured victim to recover compensation.

Development of the law

An early sign of change in the arena of vicarious liability came in Morris v CW Martin & Sons⁷. Perhaps it is unsurprising that this early evolution came in a judgment of a Court including Lord Denning MR. At first instance, the judge had held that an employee’s act of stealing the plaintiff’s expensive mink coat was outside the scope of his employment with the defendant. The employee had been employed to clean coats and had special access to the room in which the coat was stored. Lord Denning, commenting on the extensive evolution of the law over the previous hundred years, cited a 1912 decision⁸ to support the fact that an employer could be liable for the criminal act of an employee. The Court held that the ultimate analysis was it was right to impose liability because the employer owed a duty to take care of the goods.

The move towards a more expansive definition of “scope” has not been entirely consistent. Well after the move started, some areas were found outside the realm of vicarious liability. In Heasmans v Charity Cleaning Co Ltd⁹, the Court held that the claim failed because the employment relationship afforded merely the opportunity to commit the wrong (in this case, making long distance telephone calls on phones belonging to the plaintiff which the employee was employed to clean); there was no greater nexus between the wrong and the employment. Such cases can be seen as blips in the general expansion however. In Brink’s Global Services v Igrox¹⁰, the Court confirmed that in light of the decision in Lister v Hesley Hall¹¹, Heasmans should be seen as overruled.

There appear to be two factors which have influenced the general expansion. One was the influence of decisions in other areas. Caparo Industries plc v. Dickman¹² pushed the Courts to look at proximity and whether it would be fair, just and reasonable to impose liability. Fairchild v. Glenhaven Funeral Services Ltd¹³ broadened the doctrine of causation to ensure ‘justice’. The cases have appeared to make a difference to the attitude of the Court; shifting the focus towards looking to ensure justice for a wronged Claimant and to ensure the availability of a remedy. The other factor has been the influence of cases involving serious sexual offenses.

Sexual Offenses cases

The first attempt to deal with this difficult and distressing area of vicarious liability came in the decision of the Court of Appeal in T v North Yorkshire CC¹⁴. There, a Council-operated school for mentally handicapped children organised a school trip to Spain. During the course of the trip, the claimant shared a bedroom with the deputy headmaster and was sexually assaulted. There was no suggestion that the Council itself had been negligent in organising the trip or in assigning the claimant to share a room with the deputy headmaster; the issue was simply whether they were vicariously liable for his acts. The Court held that the sexual tort was not an unauthorised mode of performing an authorised act; it was an independent act “far removed from an unauthorised mode of carrying out a teacher’s duties on behalf of his employer”¹⁵

In the three years between this decision, and the House of Lords’ decision in Lister, a sea-change in policy occurred. Several of their Lordships in Lister were influenced by the explicitly policy-based approach of the Canadian Supreme Court in the combined cases of Bazley v Curry and Jacobi v Griffiths¹⁶. Although not binding on the English Courts, these decisions had a profound impact on English Judges.

Bazley and Jacobi involved the grooming and sexual abuse of a young and vulnerable young boy by an employee of the defendant non-profit organisation at their residential care home. The parties agreed that vicarious liability was governed by the Salmond test, but diverged on its meaning. McLauchlin J, considered that the Court should first look to whether there was clear precedent on the issue. Where, as in these cases, there was no helpful authority, the policy rationales behind finding a defendant strictly liable should be explored. McLachlin J held that Courts should openly confront the issue rather than hide behind semantic discussions of “scope of employment”. The fundamental question was whether the wrongful act was sufficiently related to the authorised conduct to justify vicarious liability; whether there was sufficient connection between the creation/enhancement of risk and the wrong that accrued from that risk. In deciding that, subsidiary factors including the opportunity for wrong afforded by the enterprise; the extent to which the wrongful act furthered the employer’s aims; the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the enterprise; the extent of power conferred on the employee relative to the victim; and the vulnerability of potential victims to wrongful exercise of power, could be considered.

The expansion of approach to sexual offenses cases in the English Courts started in Lister v Hesley Hall. The facts of this case are well-known. The warden of a boarding annex employed by the defendant school for children with emotional and behavioural difficulties sexually abused a number of boys in his care. The Court of Appeal, bound by T v North Yorkshire CC, found there to be no vicarious liability in the circumstances of the case. The Court of Appeal’s finding and the finding in T v North Yorkshire CC were unanimously overruled, albeit for different reasons, by the House of Lords.

Lord Steyn (with whom Lord Hutton agreed) and Lord Clyde both considered with weight the Canadian decisions. Lord Steyn held that the question was whether the warden’s torts were so closely connected with his employment for vicarious liability to exist. He held that they were “inextricably interwoven”. Lord Clyde placed weight on the fact that the defendant had delegated to the warden the duty of care that they owed to the boys. Lord Hobhouse also laid weight on the assumption of duty of care by the warden’s employer as a crucial factor. Lord Millet looked to whether the employer has created a risk inherent to the nature of the business.

The current position

Whilst Lister expanded the law significantly, a Claimant is far from guaranteed to succeed in every case involving a criminal sexual act. In N v CC Merseyside Police¹⁷, Nelson J held that the police constable was not vicariously liable for the actions of an off-duty probationary police constable. The PC had picked the claimant up outside a club when she was severely intoxicated. He had gained the confidence of the club’s first aider and the claimant by wearing his uniform and showing his warrant card. He offered to take the claimant to a police station and the claimant got into his car. He took her to his home and raped and sexually assaulted her whilst she was unconscious; filming the assaults. Nelson J’s decision rested heavily on the absence of any duty of care owed by the employer to the claimant (it is of course established law that the police do not owe the general public a duty of care in advance of a crime being committed). He also considered that the employer did nothing to introduce the risk of the employee committing the act. Here, the employer had merely, through providing a uniform and warrant card, given their employee the opportunity to commit a tort.

On the other hand, it does appear almost impossible for the Catholic Church to escape vicarious liability in such cases. In Maga v Archbishop of Birmingham¹⁸, the claimant was sexually abused by a Roman Catholic priest. The claimant was not Catholic and had met the priest because he had been admiring the priest’s car. The priest had never attempted to get the claimant involved in church services and the claimant had only once attended the Church. Lord Neuberger considered vicarious liability attached on the grounds that (1) the priest was normally dressed in clerical garb and it was his employment that gave him authority; (2) the priest’s employment required him to evangelise; (3) the priest had responsibility for youth activity in the church and developed his relationship with the claimant at a church-organised function; (4) the claimant occasionally helped out (cleaning/ironing/etc) on church premises and several acts of abuse (including the first) occurred on church premises; and the role as a priest gave him the status and opportunity to draw the claimant into his sexually abusive orbit. Longmore LJ disagreed that the duty to evangelise was an important element, but agreed with Lord Neuberger’s finding. He held that the grooming of the claimant was only possible because of the position as a priest and laid importance on the fact that the archdiocese had a special concern for the vulnerable and oppressed.

On the face of it, it is difficult to distinguish the circumstances of N and Maga. Ultimately the difference appears to comes down to the fact that in Maga the Church was found to have materially increased the risk of the tort, whereas there was no such finding in N. However the factors that influenced the Courts to make such findings were almost identical; both the priest and the PC used their uniforms and positions of authority to gain advantage of and access to the vulnerable claimant. Whilst acts of abuse took place on the employer’s premises in Maga, the Church was also liable for those acts which took place at the priest’s home and in his car and this alone seems insufficient to justify the difference in finding. Although the police clearly did not owe the claimant a common law duty of care, it is difficult to see why the Catholic Church should have been found to owe a greater duty of care than the police; the police arguably do have a special concern for the vulnerable and oppressed (just as the Church was found to have) and the priest’s duty to evangelise was not acted upon and was not a unanimous part of the Court’s reasoning.

Various Claimants v Catholic Child Welfare Society¹⁹ has recently considered the issue again. Although both cases were cited in argument, only Maga was considered in the Court’s decision and there was no reference to the inconsistency between the cases. The case involved the serial sexual abuse of boys at a school/community home for vulnerable boys between 1958 and 1992. Lord Phillips gave the leading decision of the Supreme Court. Having found, despite the absence of an employment contract between the defendant and the abusers that there was a quasi-employment relationship between them, he went on to consider whether the abuse was within the scope of this relationship. He held:

“The precise criteria for imposing vicarious liability for sexual abuse are still in the course of refinement by judicial decision. … A common theme can be traced; it is imposed where D, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse.”

Creation of risk was a key test although, alone, it was not enough to impose vicarious liability.

The future of vicarious liability

In the last twelve months, historic sexual abuse cases have never been far from the headlines. There currently is potential for numerous cases involving employers in many different industries, notably the BBC, to be sued for their vicarious responsibility for these assaults and criminal acts. In the absence of any fault on the part of the employers themselves, there is potential for questions to be raised over vicarious liability which may well lead to consideration of the issue by the Government (particularly in light of their views on strict liability of employers in the context of health and safety²⁰). In contrast to attitudes to health and safety, however, public opinion does not appear to be against such strict liability. Since Lister, now over 10 years old, there has been no statutory attempt to reverse the law.

In the absence of intervention, we are left with a situation considerably expanded, though with some limits²¹. The test is still in evolution and the exact considerations will continue to be looked at. Does the Court look to the creation of risk? Is it the existence of a duty of care owed by the employer to the wronged party? Or must the case simply involve a situation where the Courts, for policy reasons, consider it “fair, just and reasonable” to impose liability on an employer whose deep pockets (or whose insurer’s deep pockets) are perfectly capable of compensating the claimant who would otherwise receive nothing from the actual tortfeasor? As Ward LJ observed, the times clearly are a-changing; it remains to be seen how much further they will change or whether our current law will pause somewhat in its continued evolution over the next few years.