Vicarious liability and the systematic sexual abuse of children under the care of trained staff, becomes the nucleus of a collective suit against the abuser’s employer, in the wake of criminal allegations leading to a conviction.
Between 1979 and 1982, the respondents employed the services of a warden for the purposes of managing a boarding house designated the care of emotionally troubled and vulnerable children.
Of the eighteen boys resident to the property, a number of them were subjected to numerous forms of sexual abuse, achieved through careful grooming and insidious manipulations by the offender.
While the acts themselves went unreported, a criminal investigation revealed the identity of the accused; and following summary conviction, he was sentenced to seven years imprisonment.
Almost fifteen years later, the appellants issued claims against the owners of the boarding house on grounds of vicarious liability and negligence.
In the first instance, the claim for negligence was dismissed, while the accusation of liability for the abuse fell victim to the existing position as determined by the verdict in Trotman v North Yorkshire County Council; in which, a disabled pupil had been sexually abused by the deputy headmaster while on a school trip abroad.
When assessing the culpability of the local authority, Butler-Sloss LJ concluded that:
“[I]n the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”Trotman v North Yorkshire County Council
Subsequently holding that the employers in question, could not be held liable for the individual actions of a sick mind, despite having harmed the child while under the employment of the authority at the time of the abuse.
When heard by the Court of Appeal, who themselves adhered to the principles ascribed in Trotman, the decision was taken to award damages based on the wardens failure to report his actions to his employer.
This was expressed by Waller LJ, who explained:
“The simple point in this case is that if wrongful conduct is outside the course of employment, a failure to prevent or report that wrong conduct cannot be within the scope of employment so as to make the employer vicariously liable for that failure when the employer was not vicariously liable for the wrongful conduct itself.”
Granted leave to appeal, the case was presented again to the House of Lords, who took issue with the decision in Trotman, while clarifying the very principles of vicarious liability.
The essence of vicarious liability rests upon the timeless principles espoused in academic text; which state that a wrongful act undertaken by an employee in the course of his employment is recognised where:
‘it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master’.
This is further supported by the principle that:
‘a master…is liable even for acts which he has authorised, provided they are so connected with acts which he has authorised, that they may rightly be regarded as modes-although improper modes-of doing them’.
In Lloyd v Grace, Smith & Co, a firm of solicitors were held liable for the manipulation of their client by a manager who used the acquired property for his own benefit, while in Williams v A & W Hemphill Ltd, it was expressed by Lord President Clyde that:
“[W]here the workman does some work which he is appointed to do, but does it in a way which his master has not authorised and would not have authorised had he known of it, the master is nevertheless still responsible, for the servant’s act is still within the scope of his employment. On the other hand…if the servant is employed only to do a particular work or a particular class of work, and he does something outside the scope of that work, the master is not responsible for any mischief the servant may do to a third party.”Williams v A & W Hemphill Ltd
However, in Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co, Cullen LJ argued that:
“The question is not to be answered merely by applying the test whether the act in itself is one which the servant was employed or ordered or forbidden to do. The employer has to shoulder responsibility on a wider basis; and he may, and often does, become responsible to third parties for acts which he has expressly or impliedly forbidden the servant to do.”Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co
While further remarking that:
“An honest master does not employ or authorise his servant to commit crimes of dishonesty towards third parties; but nevertheless he may incur liability for a crime of dishonesty committed by the servant if it was committed by him within the field of activities which the employment assigned to him, and that although the crime was committed by the servant solely in pursuance of his own private advantage.”
In a more recent Canadian case Bazley v Curry, involving the sexual abuse of children by an employee of a children’s foundation who had been assigned a parental/ carer role, the court found the employers vicariously liable and awarded damages accordingly.
In ‘Vicarious Liability in the Law of Torts’ it was also suggested that:
‘The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on’
While in Dyer v Munday, the court agreed that there was no reason why the doctrine of vicarious liability ought not operate where a tort becomes a crime.
It was for these reasons, as well as the ignorance shown in Trotman, that the House agreed the judgment was to be overruled, and that in this matter, the appeal was to be upheld on grounds that the proximity between the wardens actions, his duty to his employers and conversely theirs to the appellants, left no doubt as to where liability lay, while the court reminded the parties that:
“Vicarious liability is a species of strict liability. It is not premised on any culpable act or omission on the part of the employer; an employer who is not personally at fault is made legally answerable for the fault of his employee.”