Further Scottish judicial consideration of vicarious liability and the fair hearing and substantial prejudice defences in non-recent childhood abuse claims

Denis Alexander was sentenced on 30 July 2021 to four years and five months imprisonment and placed on the Sex Offenders’ Register indefinitely after pleading guilty to two charges of lewd, indecent and libidinous practices against boys aged between 12 and 14 when he was a monk and teacher at Fort Augustus boarding school in the Scottish Highlands in the 1970s. The school was run by a Benedictine community operating as a Trust.

Hugh Kennedy presently seeks £5m in compensation for injuries and related losses said to have been caused by physical and sexual abuse at the school in the mid-1970s at the hands of Mr Alexander and two lay teachers who are understood to now be deceased. The main questions for the court after hearing legal argument but no evidence in this case, Hugh Kennedy v The Right Reverend Paul Bonnici, The Right Reverend James Warren Cuthbert Madden and Denis Alexander, Lady Wolfe, Court of Session, 20 October 2021 (link here), and the court’s answers are summarised here:

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Vicarious liability: applying the brakes?

During the last 20 years, claims arising from non-recent sexual abuse have generated numerous judicial decisions. These claims often explore the concepts of limitation and vicarious liability and – on occasion – have almost redefined these concepts. The latest case is Blackpool FC Ltd v DSN [2021] EWCA Civ 1352, in which Lord Justice Stuart-Smith reviewed the authorities afresh.

DSN was 13 years old in 1987 when – along with a group of young teenage boys – he went on a footballing tour of New Zealand under the supervision of Frank Roper.  He was sexually abused by Frank Roper, a ‘terrifying experience with lasting consequences’ according to the judge at first instance.  Roper was not employed by Blackpool FC but he was closely associated with it: running an unofficial feeder club and directing promising teenagers towards Blackpool FC.  This was important to Blackpool FC whose dire financial situation was dependent on attracting and later selling valuable young players.

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Vicarious and secondary trauma in education in the wake of Everyone’s Invited

Media attention surrounding the issues raised by the spotlight shone on abuse and harassment of various forms suffered by pupils in educational settings in recent months has, and rightly so, been focused on the impact on the students themselves.  However what may be at risk of being overlooked is the potential impact on those members of staff who are involved at various stages in picking up the pieces.  In other words, to adapt a well-known maxim, Quis curabit ipsos curantes?

According to the most recently published HSE statistics for Work-related Stress, Anxiety or Depression in Great Britain, 2020, the education sector continues, as in previous years, to feature with significantly higher prevalence rates of work-related stress, depression or anxiety than the average across all industries.  The average rate according to the HSE statistics is 1570 cases per 100,000 workers; for the education sector, the rate is almost 40% higher, at 2170 cases per 100,000 workers.

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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

High Court judgment on limitation and vicarious liability

BLM has recently successfully defended a claim brought in the High Court by a claimant against the De La Salle Brotherhood  (the Order).  The Order is a Catholic Charity dedicated to the provision of Christian education.

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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