RECENT cases involving allegations of child sexual abuse have turned the legal interpretation of “vicarious liability” into one of the more quickly evolving areas of the law.
In a lecture last week to the Inner Temple in London, Lord Hope, Deputy President of the UK Supreme Court, traced the evolution of judicial thinking in Scotland and England and Wales over the last decade in particular.
He set out the challenges it still faces in matching the need to provide a route to redress in civil proceedings that accommodates the particular circumstances of sexual abuse of children, but without appearing to reach arbitrary decisions on a case-by-case basis.
The lecture was given in memory of Lord Taylor, former Lord Chief Justice in England, respected in legal circles but probably better known to the general public as author of the Taylor Report into safety at football grounds in the aftermath of the Hillsborough disaster in 1989.
The law was prompted to move by the emergence of cases in which child sexual abuse had occurred outside the home – initially in the context of institutions run by religious orders though managed by professional staff. It is likely in the wake of the various allegations made against the late Jimmy Savile that decisions will have to be made about the liability of a new range of organisations.
Lord Hope defined the problem as “one which arises where damages are sought against people other than the abusers by people who have been abused”.
The title of his lecture was “tailoring the law on vicarious liability”. Tailoring is a new term employed by Lord Phillips, former president of the UK Supreme Court, in his leading judgment in November in the case of Various Claimants v Catholic Child Welfare Society.
Lord Hope described the clarity on the issues set out in the judgment as “bold” given the apparent reluctance of the courts in previous years to use their imagination to deal with deep-rooted problems of procedure and interpretation that had cut off claimants from redress.
The issue had arisen in Scotland in the 2007 case of McE v De La Salle Brothers. The case involved a claim by a former pupil at St Ninian’s approved school near Stirling that he had been sexually abused there in the early 1990s.
The judge at first instance, Lady Paton, had allowed a hearing of evidence on the liability of the La Salle Order for the conduct of a teacher, a person within the order but who was a member of staff under the management within the school – that is, not an employee of the order.
Lady Paton interpreted such members of staff as “acting as agents” for the order. Her judgment was quickly overturned on appeal. Lord Hope was critical of the ferocity with which Lady Paton’s judgment was overturned: “The Scottish system of pleading has many advantages. But it can be quite unforgiving in a case such as this, where the frontiers of a principle of common law are being explored.”
Similar cases in England were reaching an equivalent impasse, until the issue reached the Supreme Court in November in the case of Various Claimants v Catholic Child Welfare Society.
Lord Phillips stated that the courts have been tailoring this area of the law by emphasising the importance of criteria that are particularly relevant to this type of wrong, so as to ensure that a remedy for the harm caused by abuse is provided by those that should fairly bear that liability.
Lord Hope concluded: “Some further refinement will be needed to meet demands for compensation for sexual abuse of children within the entertainment industry … Tailoring is an exacting process, as the garment is fitted and adjusted to the needs of the wearer. In law, the tailor will need, and will wish, to be just as careful.”