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Case and Comment
VICARIOUS liability is founded on the responsibility of an enterprise for those it uses as helpers to carry out its activities. That is the conclusion to be drawn from The Catholic Child Welfare Society v Various Claimants and the Institute of the Brothers of Christian Schools [2012] UKSC 56. In a single judgment of the Supreme Court, Lord Phillips restated some of the basic principles of vicarious liability so as to give more clarity to a branch of law unsettled by a flurry of recent decisions, notably Lister v Hesley Hall Ltd. [2002] 1 A.C. 215 and Dubai Aluminium Co. Ltd. v Salaam [2003] 2 A.C. 366. This case has made significant progress in achieving what O'Sullivan ([2012] C.L.J. 485, 488) identified as "specifically tortious principles and policies" for this branch of law.
The Various Claimants case dealt with a preliminary issue whether the Institute of the Brothers of Christian Schools (the "De La Salle Brothers"), an international unincorporated association, was potentially vicariously liable for the child abuse committed by members of its community when they taught at an Approved School in Market Weighton. The School was run by an agency of the Diocese of Middlesborough which employed the staff. The Catholic Child Welfare Society, successor in title to the original diocesan agency running the School, appealed against the decision of the Court of Appeal ([2010] EWCA Civ 1106) that it alone was liable for the abuse by the brothers as teachers of the school. The appeal was upheld, so that the De La Salle Brothers were also to be vicariously liable for the acts of their members. The decision of the Supreme Court thus creates a situation of dual vicarious liability.
Lord Phillips at [35] identified five "policy reasons that usually make it fair, just and reasonable" to impose vicarious liability. First, the employer is more likely to have the means to compensate the victim than the employee (the "deep pocket" argument). Secondly, the tort was committed as a result of an activity undertaken by the employee on behalf of the employer (the "delegation of task" argument). Thirdly, the employee's activity is likely to be part of the business activity of the employer (the...