The issue in the Supreme Court:
The Supreme Court's website states that the question is whether the defendant Institute is vicariously liable for acts of sexual and physical abuse committed by its members who were working at a School.
170 pupils, who attended the School in Market Weighton between 1958 and 1992, brought claims alleging sexual and physical abuse by teachers and staff at the school. The claims were against 35 defendants, some representing the Roman Catholic Diocese of Middlesbrough, which appointed managers of the school and others connected with the Institute of the Brothers of the Christian Schools, of which some of the teachers had been members.
The Court of Appeal's judgment:
In the Court of Appeal, Hughes LJ described vicarious liability as "derivative liability without fault, under which D2 carries liability for the tort of D1, without being himself a tortfeasor, on the grounds of the relationship between himself and D1 and his connection to D1’s tort." Hughes LJ offers a useful summary of vicarious liability at paragraphs 35 to 45 of his judgment. He noted (para 35):
"There is not much doubt about the principal rationale for this non-fault liability, which is loss distribution, D2 being more able to bear the loss than D1, often (although not always) because he can and will in practice insure against it. Where there is such insurance, the cost is often in effect passed on to the buyers or users of the service or goods provided by D2."
Hughes LJ also noted the recent case of Bernard v Attorney General of Jamaica  UKPC 47, where the Judicial Committee of the Privy Council, held that, on the facts, a policeman’s use of his service gun whilst acting qua police officer fixed the Attorney General with vicarious liability, warned that there was a need to keep vicarious liability within clear limits and that the principle was not infinitely extendable. (Lord Steyn's judgment at paras. 21 to 23).
The Court of Appeal held that the Institute did not, as an unincorporated association, carry either vicarious or primary liability for any acts of abuse which may be proved in this litigation.
The JGE case:
Earlier this year. another case on vicarious liability reached the Court of Appeal - JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust  EWCA Civ 938, where the court held that a bishop could be vicariously liable for abuse carried out by a parish priest.
“We acknowledge that the Court’s judgment in this case has widened the scope of vicarious liability extending it from well established situations of employment to relationships that are “akin to employment”. This has ramifications in other areas of the law and to that extent this case does raise a matter of some public importance . . . Nonetheless, we have decided, after some hesitation, to refuse permission to appeal. Rather than deal with a case decided as a preliminary issue, the Supreme Court may prefer to wait till they have a case fought out on all factual issues with a judgment at the conclusion of a fully contested trial. Secondly we are aware that the Supreme Court are hearing the case of Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & Ors on 23rd July ..... , the Supreme Court will be better able than we are to judge whether this case raises other issues they may wish to hear next.”
Keeping vicarious liability within clear boundaries?
Lawyers will be hoping that the Supreme Court clarifies the extent to which vicarious liability in tort will be permitted and also the tests for its existence. The likelihood is that the court will seek to bring the concept within quite tight boundaries. This is important if people are to be able to be reasonably clear about their potential liabilities and, where necessary, insure against those liabilities.