BXB: “the latest episode in the attempts of religious organisations to escape vicarious liability in claims for damages for sexual offences”

This striking description of a defendant’s unsuccessful appeal – it was roundly dismissed by all three members of the court – comes at the end of the recent judgment in The Barry Congregation Of Jehovah’s Witnesses v BXB. The decision probably does not develop the law on vicarious liability as such (as will be seen below from what Nicola Davies LJ said) but mark its application on appeal in a matter involving sexual abuse of an adult. Relevant passages from each of the three judicial opinions are set out below.

Contained within the tailored test [of whether the relationship between the wrongdoer and the defendant company/body is sufficient to justify the imposition of vicarious liability on the latter for the acts of the former] in cases of sexual abuse is the concept of the conferral of authority upon the tortfeasor by the defendant. In my judgment, the tailored version of the test applies in cases in which adults are alleged to have been sexually abused as it does in such cases involving children because the rationale for the test is the same. The issue is the connection between the abuse and the relationship between the tortfeasor and the defendant. It is not the particular characteristics of the victim. [Nicola Davies LJ at 87.]

In principle, however, the test must be equally applicable to cases involving the sexual abuse of adult victims, although its application will need to take account of the differences between children and adults. In such a case [ie involving adults] the relationship is less likely to be a relationship in which the tortfeasor exercises power over the victim and the victim is dependent on or subservient to the tortfeasor. Whether such a relationship exists, however, will be a question of fact in each case. [Males LJ at 96.]

This appeal is the latest episode in the attempts of religious organisations to escape vicarious liability in claims for damages for sexual offences committed by those whom they have placed in positions of responsibility and moral authority … even an adult may be susceptible to relationships which involve a risk of abuse, particularly in the context of those spiritual beliefs and doctrines which promote a culture of unquestioned obedience to religious leaders. [Bean LJ at 105.]


Alistair Kinley, Director of Policy & Government Affairs
alistair.kinley@blmlaw.com

Vicarious liability – recent decisions in England and Wales

There has been much recent comment on the Supreme Court decisions in the Morrisons and Barclays cases. Two other recent judgments in abuse cases are also worthy of consideration. The cases as demonstrated below show that whilst the scope of various liability has increased over time, the issue is very much assessed on a case by case basis and still has its limits.

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French Surgeon suspected of assaulting 250 children

Following on from our blog last week dealing with the sexual abuse of children in Europe, there have been further developments in France, where French surgeon Joël Le Scouarnec is currently being investigated in relation to the alleged rape of two girls, aged four and six in Western France.

Le Scouarnec denies raping the girls but his lawyers have indicated that he has admitted to “deviant behaviour” with them. He is currently remanded in custody with the criminal trial scheduled to proceed before the end of the year.

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Living vicariously in Vicarious liability

As the decision of Various v Barclays Bank [2018] EWCA Civ 1670  heads to the Supreme Court in November an interesting case which addressed the  principle of vicarious liability in another medical context took an unexpected turn in the case of Brayshaw v Partners of Apsley Surgery [2018] EWHC 3286 (QB).

The claimant contacted the Apsley Surgery (“the practice”) on 17 August 2012, with low mood and feeling desperate. The locum GP, Dr Thomas O’Brien, spoke with her, raised with her issues of faith and later that day attended the claimant’s home, with his wife, to discuss religion as a “faith healer”.  The claimant thereafter accompanied them to church, restaurants and their log cabin whilst also  continuing to attend the practice in respect of her mental health issues. In January 2013, the claimant attended church as usual to experience something similar to an exorcism. Subsequent to this the claimant felt suicidal and developed a phobia of owls. The claimant alleged the O’Brien’s had indoctrinated her into their faith and encouraged her to stop her medication and attending psychiatric appointments. She said that that she suffered psychiatric harm as a result of the religious indoctrination. She made a complaint to the GMC as a result of which Dr O’Brien was struck off for having abused his position of trust. She then pursued a claim alleging that the treatment amounted to an intentional infliction of harm/harassment and that the practice was vicariously liable for Dr O’Brien’s behaviour.

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Vicarious liability temporarily halted

Shelbourne v Cancer Research UK [2019] EWHC 842(QB)

The facts

On 7 December 2012, a Christmas party was held at the Cambridge Research Institute of Cancer Research UK (CRUK). This was the third Christmas party that had taken place and was organised by volunteers who worked for CRUK. The party consisted of a buffet, games, music, singing and a disco. The event was for ticket holders only and was open to the defendant’s staff and their guests.

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Various Claimants v Barclays Bank PLC in the Court of Appeal – confirmation of incursion of the defence of the Independent Contractor

The Court of Appeal has unanimously endorsed the approach taken at first instance in finding Barclays Bank (‘the Bank’) vicariously liable for the sexual assaults of a doctor retained to conduct pre-employment medical examinations of prospective employees.   The Bank’s defence that the doctor was an independent contractor was once again rejected.   Continue reading

Vicarious liability – an ever moving target

One of the most difficult challenges when responding to claims for damages consequent upon sexual abuse is trying to determine who is potentially liable for payment of claims, provision of care or other rehabilitation services.

It is clear that anyone who abuses another person will bear personal responsibility but they are often not a real target for reparations as they often have limited assets or, as in many non-recent cases, they have died or cannot be located.

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Extension of vicarious liability to independent contractors

In advance of what may be a large number of claims against sports organisations, particularly football teams, legal determination on the extent of vicarious liability for independent contractors is timely. A trial of a preliminary issue in Various Claimants v Barclays Bank Plc [2017] EWHC 1929 (QB) concluded that Barclays (“the Bank”)  was vicariously liable for the intentional sexual assaults of a doctor retained to conduct pre-employment medical examinations of prospective employees.

A group of 126 claimants are pursuing claims against the Bank for damages for alleged sexual assaults perpetrated by a Dr G Bates between 1968-1984. The allegations emerged in 2013, when a police investigation took place, but the doctor had died in 2009 so there was no criminal prosecution.

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Sexual abuse and foster care

The issue of vicarious liability for foster parents in cases where there have been allegations of sexual abuse remains a fertile ground for litigation with another judgment handed down this week, whilst the Supreme Court is likely to hear the appeal in NA in early 2017.

In VN & SN v London Borough of Brent, VK & AK [2016] EWHC 936 (QB). the claimants alleged that they were physically, sexually and emotionally abused by their foster carers.

It was contended on behalf of the claimants that the defendant local authority was:

  1. Negligent in its approval and supervision of the foster carers and placement of the claimants; and
  2. Strictly liable on the basis of vicarious liability and a non delegable duty.

Sir Robert Nelson found that the claimants had not established their allegations of abuse.  However in obiter comments he noted that had abuse been established he would have been bound by the NA decision and thus have rejected the claimants’ arguments on both vicarious liability and non delegable duty. He considered that the claimants attempt to distinguish their claim from that in NA did not succeed because “the Children Act 1989 and subsequent regulations did not affect the heart of the decision in NA.”

It is clear that vulnerable children when placed in foster care should be safe and any abusive behaviour can only be condemned. However extending vicarious liability or the doctrine of a non-delegable duty to cover foster parents seems to be an extension too far because of the wider implications that would have for the ability of foster parents to provide a family environment to the children in their care. It is clear however that this will continue to be a subject for consideration by the courts and in due course possibly by the IICSA.


Author

Amy Clarke, associate