England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: QUEEN'S BENCH DIVISION
DEWSBURY DISTRICT REGISTRY
HIS HONOUR JUDGE HAWKESWORTH QC
5DW01675

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/10/2010

Lord Justice Hughes :

1. A large number of claimants assert that they were physically and/or sexually abused by staff at the school which they attended. The school had begun life in the nineteenth century as a reformatory for delinquent boys founded by charitably minded local Catholics. At the times when abuse is alleged, it was constituted either as an Approved School or an Assisted Community Home, under the legislation current for the time being. In each of those constitutions it had a board of managers, recognised by the legislation. From a time well before that, and throughout the relevant periods, the Headmaster and some but by no means all teachers were supplied by the Institute of the Brothers of the Christian Schools (also known as the De La Salle Institute) ("the Institute"), which was at all material times an unincorporated association. The school closed in 1994.
2. Plainly anyone proved to have been a tortfeasor is himself liable to the relevant claimant. The judge was asked, however, to rule upon preliminary issues as to which body or bodies might additionally bear liability (subject to limitation or any other defence) if the abuse alleged is established.
3. The liability which he was asked to consider was principally vicarious liability, that is to say 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. In summary, the judge ruled that the board(s) of managers, and those bearing responsibility for them, would be vicariously liable, but that the Institute would not. Those responsible for the boards of managers do not (now) dispute that they bear vicarious liability. On this appeal they contend, however, that the Institute does so too, and should contribute to any eventual liability.
4. On appeal, the claimants also invite us to consider the possible primary liability of the Institute, that is to say for negligence attributable to it as a body incorporate. On the particular facts of this case, however, Miss Coe QC expressly does not contend that this would exist other than in circumstances where the Institute also bears vicarious liability.
5. A supplementary issue arises as to whether the managers of the community home, as constituted from 1973 onwards, bear vicarious liability in respect of torts committed under the previous approved school regime. That depends on the correct construction of a transfer of liabilities provision contained in delegated legislation.

Parties

6. The judge was confronted by a very large number of parties. There are some 150 or more claimants, proceeding by way of a group litigation order. There are also no less than 35 defendants. Only one of the defendants is an individual alleged to be an abuser and sued personally. All the others are sued as in one way or another representing, directly or via a chain of representation, either the managers or the Institute. For present purposes no question arises as to anyone's status as representative, nor has any question been raised as to the inclusion of any particular defendant.
7. We have thus been concerned with the potential liability of two groups of defendants.

i) Those said to be responsible as managers of the school from 1973 until its closure in 1992. Throughout that period the statute laid the responsibility for the school upon what it termed the "responsible organisation", under which the boards of managers carried out the day to day management of the school. These 'responsible organisations' were emanations of the Catholic diocese of Middlesbrough. From 1 October 1973 to 28 July 1982 the responsible organisation was the Middlesbrough Diocesan Rescue Society ("MDRS"), an unincorporated association. From 28 July 1982 until closure in 1992 the MDRS was succeeded by the Catholic Child Welfare Society (Diocese of Middlesbrough) ("CCWS"), an incorporated charitable company. These two organisations and various persons sued in representative capacities on the basis that they represented the boards have been referred to as "the Middlesbrough defendants", and we can conveniently use the shorthand form "the managers".

ii) Those said to bear liability on the basis of the liability of the Institute of the Brothers of the Christian Schools, also known as the De La Salle Institute. The Institute was at all material times an unincorporated association of lay brothers. It is not sued in its own name, but its trustees are sued as such and a number of individual trustees are sued in that capacity. These various defendants have been referred to as "the DLS defendants", and that can conveniently be shortened to "the Institute".

8. It should be noted that the Middlesbrough defendants are vicariously liable for the boards of managers only from 1 October 1973. Although there were managers prior to that date (indeed since the nineteenth century), there is no defendant sued as representing them. So far as pre-1973 allegations are concerned, the claimants rely against the Middlesbrough defendants upon a transfer of liabilities provision in an Order made by the Secretary of State in 1973. The judge held that the effect of this provision is that the Middlesbrough defendants have inherited any liabilities of pre-1973 boards of managers. The Middlesbrough defendants challenge that decision. If the judge was wrong on this point, there is no Middlesbrough defendant vicariously liable in respect of pre-1973 abuse. If, however, the Institute bears vicarious liability, it will extend back beyond October 1973. For this reason the question whether the Institute bears vicarious liability is of significance to the pre-1973 claimants, who support the appeal of the Middlesbrough defendants on this point, whilst opposing their appeal upon the transfer of liabilities provision.

The alleged abusers

9. The alleged abusers fall into at least 6 categories:

i) Institute brothers who were on the teaching staff, including one Headmaster about whose abuse there is no doubt because he has been convicted of serial offences;

ii) lay (non-Institute) members of the teaching staff;

iii) social work staff (non-Institute);

iv) domestic staff, such as a kitchen worker, gardener or farm worker;

v) at least one volunteer helper at the school; and

vi) a chaplain to the school, who was not employed on its staff and not a DLS brother, but a priest appointed to the school by the diocesan bishop.

The statutory framework

10. The school was governed by statutory regimes from the outset. It is not necessary to examine the detail further back than 1908.

i) From at least that year it was a certified reformatory school, operating under the provisions of the Children Act 1908.

ii) Subsequently under the terms of the Children and Young Persons Act 1933 it was constituted as an approved school.

iii) From 1 October 1973 until closure in 1992 it was constituted as an assisted community home under the terms of the Children and Young Persons Act 1969.

11. By the time of the regime of the Children Act 1908 a certified reformatory school was unequivocally, and exclusively, a place of detention for youthful offenders. Pupils came to the school only under order of the criminal courts, made upon conviction for a criminal offence which, in an adult, would carry a sentence of penal servitude or imprisonment. Such a detention order could be made in relation to any child between the ages of 12-15 inclusive. It was for a determinate term and there was provision for release upon licence and for supervision after release, whenever it occurred, until the age of 19 (sections 67 and 68). Such a school was certified by the Secretary of State and inspected by his inspectors (sections 45 and 46). His approval was required for rules made by the managers (section 54). The Act did not, however, contemplate the Secretary of State himself either establishing or managing such a school. Rather, the school was to be managed by its private managers, subject to the controls mentioned, and with the benefit of Treasury contributions to the expenses of keeping detainees there (section 73). By section 52 the managers could decline to accept an offender, but once they did accept him, they had a duty to "teach, train, lodge, clothe and feed him." It was also the managers upon whom was laid the duty of post-release supervision to the age of 19 (section 68). Whilst no doubt such managers could employ or otherwise engage staff as they wished, the Act was silent as to the legal basis on which any such staff would work at the school. A discretion to establish a superannuation fund for "officers of the school" (section 56) is the only reference to the terms available to any staff.
12. By the time of the Children and Young Persons Act 1933 various changes had been made which were consolidated in that Act. The school was now an "approved school". It remained a place of detention for those under the age of 17 who had been found guilty of offences which would carry imprisonment in an adult (section 57), although additionally a juvenile court could commit to an approved school a person under 17 found to be in need of care and protection (section 62). Approved school orders generally lasted for three years, or longer if the child was under 12, and might extend to the age of 19 (section 71).
13. The 1933 Act contemplated that local authorities might establish approved schools, but also that the Secretary of State would certify schools run by non-governmental managers. Section 107 defined such managers simply as "the persons for the time being having the management of the school." Thus there was a system of certification of privately run schools, as there had been under the 1908 Act. The 1933 Act tightened the position of the managers by vesting in them the rights and powers of a parent in respect of children at the school and imposed a duty to provide "clothing, maintenance and education" (Schedule 4 paragraph 12). Once again there was provision for the managers to supervise those released, possibly until the age of 21 (section 74(1)), and they had the power to recall those released up to the age of 19 (section 74(2)).
14. Under this Act, the Approved School Rules 1933 were made. The rules made specific provision for the managers and their responsibility. Two of the managers of a boys' school, which St William's was, had to be women (Rule 4). The duty to maintain an efficient standard was laid upon the managers who had to inspect regularly (Rule 10). Rules 14 and 15 provided, so far as material:

"14. The managers shall be responsible for the appointment, suspension or dismissal of the staff…

15. The headmaster, matron, teachers and instructors shall be employed under written agreement…."

Thus from 1933 onwards the staff were the direct statutory responsibility of the managers, and all teaching staff had to be employed by them under written contract. The rules also laid certain duties on the Headmaster, who was made specifically responsible to the managers for the efficient conduct of the school (Rule 18). He required the permission of the managers if he was to leave the school for more than two days (Rule 20).

15. The Children and Young Persons Act 1969 changed the concept of schools such as this. The institution of approved school disappeared. In its place there now stood the community home. The community home was no longer part of the system of young persons' custodial sentences. Rather it was a place of accommodation for children in the care of the local authority, although of course some children were in care because they had committed a criminal offence (section 1(2)(f)).
16. The Act required regional planning for the provision of sufficient community homes. The principal co-ordinators were the Local Authorities, which have long been responsible for child care, as for other social services. Section 36 stipulated that community homes might be of two kinds: those provided by Local Authorities and run by themselves (section 38), and 'voluntary homes'. The latter were provided for by section 36(2)(b) in these terms:

"voluntary homes provided by voluntary organisations but in the management of each of which the plan proposes that a relevant authority should participate in accordance with an instrument of management."

Such voluntary homes were subdivided into controlled and assisted homes, according to the level of independence retained. St William's became an assisted community home.

17. By section 39, the Secretary of State could make an Instrument of Management for an assisted community home, and in due course did so for St William's. Under s 39(3)(b), one third of the managers had to be appointed by the Local Authority. The statutory responsibility for the school was provided for by section 42(1) and (2) as follows:

"(1) The management, equipment and maintenance of an assisted community home shall be the responsibility of the voluntary organisation by which the home is provided and in the following provisions of this section "the responsible organisation" in relation to such a home, means the voluntary organisation responsible for its management, equipment and maintenance.

(2) Subject to the following provisions of this section, the responsible organisation shall exercise its functions in relation to the home through the body of managers constituted by the instrument of management for the home, and any thing done, liability incurred or property acquired by the managers shall be done, incurred or acquired by the managers as agents of the responsible organisation."

Section 42(3) went on to make specific provision for employment. The employment of any person at the home was reserved for the decision of the responsible organisation, subject to certain powers of veto or direction in the Local Authority. The instrument of management for St William's provided, consistently with the statutory scheme, for the qualifications, appointment and retirement of managers, and for the employment of staff by the managers. The headmaster (referred to as the 'person in charge of the home') was to be appointed by the responsible organisation, employed by the managers, and was made subject to the general direction of the managers in his direction of the school.

18. The various changes over the years in the route by which children came to be at the school need not by themselves necessarily have affected the arrangements for its management, but with them in fact came significant changes which did. It is true that, as Mr Leggatt QC for the managers submitted, there was a statutory scheme for management in existence since before the Great War, and that in some senses the changes made by subsequent statutes were incremental rather than wholesale departures. In particular, the concept of a voluntary home registered by the Secretary of State and under some controls by him and/or later the local authority is common to all three schemes. But there were still significant statutory changes in the arrangements for management. One came in 1933 when the composition of the managers was regulated (to include women), the appointment of staff was made their express responsibility and the staff became employed by them. There was another in 1969 when an identified 'responsible organisation' had to be nominated and was fixed with statutory responsibility for the running of the school and the employment of staff. The managers were thereafter expressly the agents of that organisation.

The Institute

19. The Institute of the Brothers of Christian Schools was founded in Rheims in or about 1680 by Jean-Baptiste de la Salle as a lay community of teachers. It was recognised by a Papal Bull in 1724 and has members in many different countries. The brothers are not, and may not be, ordained priests. The Institute is divided into districts, also called provinces, of which at different times there were either one or two in England. The head of the Institute is the Superior General, elected by the General Chapter of the brothers, which in turn is constituted by elected representative of all brothers. A council is likewise elected. Each district or province has at its head a visitor, commonly called a 'Provincial'. The brothers live in communities, each headed by a Director. Directors of communities should not hold office as such for more than a limited number of years.
20. The mission of the Institute has always been teaching, principally of the poor. The duty of teaching is known as the 'apostolate', or mission, of each brother. The principal way by which this has historically been undertaken has been by founding 'houses' where such teaching can be provided. Where this was done, normally a community would be established at the house, in which the brothers undertaking the teaching, and perhaps other brothers, would live. This model has been translated in modern times into the establishment of a number of schools which the Institute itself manages and runs. Typically there would be a community physically within the school, with its director very often, although not always, the headmaster of the school. Elsewhere there might be a community separated physically from a school where its brothers taught.
21. The brothers are bound together by solemn lifelong vows of chastity, poverty and obedience and by a detailed and very strict 'rule' of conduct. The vow of obedience carries the obligation to obey the superiors of the Institute, including the Provincial and the Director of the community. In particular, each brother undertakes to go wherever he is sent, normally by his Provincial, to teach. The 'rule' is highly particular and governs such matters as the taking of communal meals, a prohibition on private rooms, a bar upon going out except in each other's company or as authorised for the purpose of their calling, and disagreement with each other, although there was evidence that in some areas the rule's somewhat mediaeval severity is not strictly enforced. The rule requires brothers to advertise to each other any faults of which they are conscious. It also contains provisions for the treatment of children taught, including a bar on corporal punishment. The vow of poverty has the consequence that brothers who are employed as teachers covenant the whole of their salaries to the Institute; their needs, both when teaching and after retirement, are wholly provided by the Institute, lifelong.
22. One consequence of these vows and the discipline associated with them is that the deployment of the brothers to teaching functions is the responsibility of the Provincial. The evidence was that his decisions will normally be made after consultation with the brother concerned, but there is no doubt that within the Institute the Provincial has the power to send, and to recall, and that when he makes either decision, the brother's duty is to obey. That is true whether the establishment to which a brother is deployed is one owned and run by the Institute itself or one owned and run by some other body.
23. Another consequence of the structure of the Institute is that each community is subject to the authority of the Provincial, who undertakes visitations, or inspections, in pursuit of his role. That includes, therefore, a community which exists within, or in association with, a school.
24. As a matter of canon law, because the Institute is a lay, rather than a monastic order, its communities remain also subject to the authority of the diocesan bishop or 'ordinary'. On the evidence it was clear that whilst this is so, the bishop did not, qua bishop, exercise de facto an authority over brothers at St William's nearly as immediate as that exercised by the Provincial and the Institute generally.

The history of the school

25. The judge was presented with a colossal volume of documentary evidence and heard oral evidence over about three days. It is very clear that he had infinitely more material than we have seen. An outline of the history of the school can be borrowed, with gratitude, from his summary, and with only very limited additional information.
26. St William's was founded in or about 1856 by an ad hoc group of prominent local Catholics of charitable intentions. They raised money and acquired land. There was a charitable trust which held the land. St William's was founded as the 'Yorkshire Catholic Reformatory School for Boys' and was certified as such by the Home Secretary under the then prevailing Reformatory Schools (Youth Offenders) Act 1854. Those responsible for the management of the school seem to have been an ad hoc group of local people; the bishop may well have had some role. They reached an agreement with a religious congregation, the Rosminians, under which the latter ran the school from 1857 or thereabouts until 1911/12. The administration of the school was found to be in poor order by a Home Office inspection in 1911. In consequence, the managers terminated the agreement with the Rosminians and instead entered in 1912 into a replacement agreement with the Institute. This 1912 agreement was made between the bishop "on behalf of his committee of management", on the one hand, and the Superior General of the Institute on the other. Plainly by then the bishop was an integral part of the management arrangements; how active his role was is not clear, but the judge found that he approved the appointment of the members of the managing committee.
27. Under the 1912 agreement the managing committee in effect delegated the running of the school to the Superior General, but retained an overall authority. The agreement recited that the Superior General had been "invited to take up the management" of the school. He for his part undertook "to assume direction of the school" and to staff it "with a small number of brothers in the beginning and to increase them as he may think well from year to year". The management committee retained the right to inspect the school and its books and alone to authorise structural changes beyond the minimal. Thus the agreement contemplated the staffing of the school by brothers alone, and this seems to be what happened until 1932-33. It contained a provision allowing the Superior General to fix salaries for the brothers, but whether this ever occurred, given the brothers' vows of poverty, is not clear. The agreement provided for the possibility of appointment of a chaplain, by agreement between the bishop and the Superior General; it was stipulated that the chaplain was to have nothing to do with the management of the school or community and was not to be a member of the managing committee.
28. The 1912 agreement contained a provision for termination on notice, but it was never formally invoked. The judge recorded that from that date forward the agreement was never again referred to in any of the voluminous documents, but found that it "continued to exert an influence" all the way through until closure in 1994. The extent of that influence, or more particularly the role of the Institute in the school by the time of the alleged incidents of abuse, has been a large part of the argument before us. What is, however, completely clear, is that the Institute never owned this school, unlike a number of others which it owned and ran itself. This was the only one of the schools to which the relevant province of the Institute supplied brothers to teach, but did not own.
29. Consistently with its usual practice, the Institute established a community of brothers at the school. Its premises, including their bedrooms and refectory, were within the school grounds. The Director of the community was, at almost all material times, the brother-headmaster, although during part of the long headmastership of Mr Carragher (1976-1990) the two roles were split. Most of the brothers living in the community over the years were working at the school, but that was not invariably or necessarily so; there were some brothers who were part of the community but unconnected with the school.
30. After the statutory changes which led to the Children and Young Persons Act 1933 and the Approved School Rules of the same year (see paragraphs 12-14 above) lay teaching staff were employed. As has been seen, the employment of staff was now the express statutory responsibility of the managers. Moreover, whatever may have been the status of teaching brothers before this, they now had to be employed under contracts of employment with the managers. As time went by, the proportion of the staff who were brothers fluctuated and generally declined. In 1954 there were five brother-teachers and five lay teachers; in 1964 six brother-teachers and eight lay teachers. To anticipate, after 1976 there were never more than two brother-teachers, and much of the time one only, whilst there were as many as a dozen lay teachers. Moreover, there were lay domestic staff in addition and the evidence was that at least in the 1970s there were lots of volunteers also working at the school. By this time, there were several lay members of staff living on the site, in premises separate from the community quarters of the remaining brothers; other lay staff lived in the town, some of them in houses owned by the trustees or managers of the school.
31. During the time of the 1933 Act regime, the headmastership changed a number of times. On each occasion of which there is available evidence the Provincial made the decision and to all intents and purposes presented the managers (and indeed the Home Office) with a fait accompli. In 1957 he recalled the then serving Brother Joseph and sent Brother Vincent in his stead. In 1963 he recalled Brother Vincent and sent Brother Dominic. In 1965, following a transfer of St William's within the Institute from one province to another, there was a wholesale change of brother-teachers and Brother Reginald was sent to be the new headmaster. On each occasion the managers were reluctant to lose their headmaster but were unable to change the mind of the Provincial, although on occasion he deferred the date a little at their request. The need for change seems to have been connected to the Institute's practice of limiting the periods for which office was held, at least up to the level of Director of a community. The managers could not, of course, prevent the decision within the Institute recalling an existing headmaster, nor his resigning as a result of his duty to obey his superiors. They did retain the clear power to decline to employ any substitute, although they did not choose to exercise it.
32. As the Children and Young Persons Act 1969 (paragraphs 15-17 above) was being implemented, it became necessary to identify the 'responsible organisation' for its purposes. There was discussion between the Institute and the diocese. The outcome was that the Institute was not identified as the responsible organisation and the MDRS was. The MDRS was a charitable trust whose president was the Bishop. Its members were priests, headteachers of Roman Catholic schools and other persons appointed by the Bishop. It had diocesan responsibility also for other premises such as children's homes and a mother and baby unit. So far as St William's was concerned, under the MDRS, there were the managers of the school, which it appointed. The 1969 Act and the associated Orders came into operation on 1 October 1973. As required by the Act (and its predecessor) the staff were all engaged under contracts of employment with the managers; application forms for positions and promotions issued by the managers, and completed by brothers and lay teachers alike, survive and were before the judge.
33. In 1976 the then Headmaster, Brother Reginald, indicated that he wished to retire. Unlike the case of his predecessors, there had been no question of his having been recalled, although he had been headmaster for 11 years. At a meeting of the management committee, Father Smyth of the MDRS pointed out that there was no agreement between the trustees (he must have meant the managers) and the Institute. The chairman indicated that he would nevertheless welcome "a religious" as headmaster, and he plainly included a lay brother of the Institute in that expression. No one seems to have thought that the 1912 agreement still applied, and indeed given the new statutory framework it could not. Brother Reginald's successor was Mr Carragher, then Brother James, who had been a brother-teacher and housemaster since 1968. He remained in post until 1990 when he was dismissed following discovery of his offending.
34. By then the numbers of the boys were dwindling. Whether for that reason or because of a combination of that with the adverse effects of Carragher's disgrace, or for any other reasons, the Institute disengaged from the school and it was finally closed in 1994.

Vicarious Liability

35. It is not necessary to embark upon a lengthy dissertation upon the nature of vicarious liability. When it applies it exists independent of fault. It is a rule under which D2 is liable for the tort of D1, on grounds of his relationship to D1 and his connection to D1's tort. 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.
36. Clearly, however, the ability to bear or insure against the loss is not by itself sufficient to create vicarious liability. The social utility of vicarious liability where it applies is not a justification for extending it whenever there may be social usefulness in doing so. In Morgans v Launchbury [1973] 1 AC 127 the question was when a vehicle owner is vicariously liable for the negligence of the driver. The answer was when, but only when, the driver is the agent of the owner, in the sense that he is using it for the owner's delegated purpose. The House of Lords considered the views expressed in this court by Lord Denning MR that:

"The reason behind this principle is at bottom the principle which lies behind all vicarious liability. It is to put the responsibility onto the person who ought in justice to bear it. Now the owner or hirer of the vehicle is in most cases the person who ought to bear the responsibility."

Those views were decisively rejected: see for example Lord Pearson at 142 and Lord Wilberforce at 136-137. More recently in Bernard v Attorney General of Jamaica [2004] UKPC 47, the Judicial Committee of the Privy Council, in holding that on the facts a policeman's use of his service gun whilst acting qua police officer did fix the Attorney General with vicarious liability, sounded the following warning, per Lord Steyn at paragraphs 21 and 23:

"21. Vicarious liability is a principle of strict liability….This consideration underlines the need to keep the doctrine within clear limits….

23. …the Board is firmly of the view that the policy rationale on which vicarious liability is founded is not a vague notion of justice as between man and man. It has clear limits….

…..The principle of vicarious liability is not infinitely extendable."

37. The extent of vicarious liability is therefore much more difficult to define than is the root rationale for it when it exists. Whether it exists or not in any particular case will depend on a two-stage enquiry. The first stage is to examine the relationship between D1 and D2. The second is to examine the connection between D2 and the act or omission of D1 which is in question. Both are fact sensitive, and it is a judgment upon a synthesis of the two which is required.
38. The classic relationship which gives rise to vicarious liability is that of employment. Mr Faulks QC contended before us that it exists only in such a relationship, or at least where D2 is paying D1 to do his business, and that it cannot exist as between one member of an unincorporated association and another. I do not agree that it is as limited as this.
39. The club cases to which we were referred do not advance the question. In the well known cricket club cases (Bolton v Stone [1951] AC 850 and Miller v Jackson [1977] 1 QB 966) no question of vicarious liability was addressed because in both the claim was based on an allegation of joint (primary) tortfeasorship of all members, on the grounds that they collectively occupied the land and collectively organised the cricket there; the issue was whether negligence or nuisance was established. Prole v Allen [1950] 1 All ER 476 was concerned principally with the different question of whether one club member owes a duty to another on grounds of co-membership alone. It recognised that the club steward, although also a member, owed a duty of care in respect of the particular tasks which he took on, but the question of whether other members might be vicariously liable for his negligence did not arise, perhaps because once he was liable it did not matter; certainly the committee member defendants and the steward were jointly represented. In Melhuish v Clifford, unreported 18 Aug 1998) Hooper J held at first instance that whilst the committee members of the club were not negligent in failing to light an exit route, the employed bar staff were, and the members were vicariously liable for the tort of their employees. I see no reason to doubt the correctness of that decision, but it concerned vicarious liability of members for the tort of someone they all employed, not vicarious liability of one member for the act of another.
40. However, that vicarious liability may exist as between partners is clear: see Dubai Aluminium v Salaam [2002] UKHL 48; [2003] 2 AC 366, and indeed, long before that, Ashworth v Stanwix (1861) 3 E & E 701 and section 10 of the Partnership Act 1890. In Heatons Transport v TGWU [1973] AC 15 the activities of members of a trade union were in question. Since the union was not registered under the then prevailing Industrial Relations Act 1971, its status was that of an unincorporated association. The principal decision was that that association, once under order from the court to require its shop stewards to desist from the unfair industrial practice of "blacking" container transport firms, had not done everything which it could be expected to do so. But en route to that decision the House of Lords held that the shop stewards in question were acting on behalf of the members generally, and (in that case) within their authority, so that the Union (viz all its members) bore liability. That decision was reached on general principles of vicarious liability and a suggested distinction for this purpose between employees and agents was rejected (at page 99B). A similar decision was reached in Thomas v NUM (S Wales) [1986] 1 Ch 20 at 67E where the picketing in question was held to be done on behalf of the Union. In that case the union had a sui generis quasi-corporate status under section 2 of the Trade Union and Labour Relations Act 1974, but was not a corporation.
41. A partnership is simply one form of unincorporated association. The trade unions in the two cases referred to were also unincorporated associations, albeit of particular kinds. Like the judge, I can see no reason why vicarious liability may not sometimes exist between the members of an unincorporated association, as well of course as between the members on the one hand and an employee of the association (viz: of all of them) on the other. That must at least be possible when a member of such an association acts on behalf of the others, which will often happen. Such relationship of principal and agent is clearly one which may give rise to vicarious liability, and even in the absence of payment for the agency: Morgans v Launchbury is an example.
42. However, although agency may often create vicarious liability, and although it must follow that such liability may exist as between members of an unincorporated association, it does not follow that the position of an agent is simply the same as that of an employee. If it did, that would obliterate the well understood distinction between the position of an employer who puts an employee to work and a principal who engages a genuinely independent contractor to act for him. To say, as Lord Millett did in Dubai Aluminium (at paragraph 106) that it would be absurd for the firm of solicitors there in question to be vicariously liable for the acts of an associate employee but not for the same acts of a partner is likewise not to say that all relationships are to be treated the same. They are clearly not all treated the same. They do not all create the same connection between the tort of D1 and his relationship with D2. That brings one on to the second stage of the enquiry.
43. The second stage of the enquiry is often the more difficult and it is certainly yet more fact sensitive. It is well established now that the fact that D1 commits the tort outside his authority from D2, or directly against his orders, is not necessarily a bar to the existence of vicarious liability. That was perhaps the effect of the old case of Lloyd v Grace Smith & Co [1912] AC 716, but it is put beyond doubt by the decision in Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215, where the employers of a warden of a residential school for disturbed children were held vicariously liable for his deliberate acts of sexual abuse of the children. It was equally true of the allegedly dishonest partner in Dubai Aluminium that, if he had committed the fraud, he had acted outside his authority from his other partners, but it was held that they remained vicariously liable for his acts. By contrast, the speeches in Lister expressly recognise that it will not be sufficient for the imposition of vicarious liability that his employment by D2 afforded D1 the opportunity to commit the tort. The test which emerges from Lister can be seen from Lord Steyn's speech, at paragraph 28, to involve two questions, namely

i) did the employers (D2) entrust to the warden (D1) the performance of a task which they, the employers, had undertaken (in that case the care of the children) ? and

ii) if so, was there a sufficiently close connection between the torts and the warden's employment for it to be fair and just to hold the employers vicariously liable ?

A similar approach appears in the other speeches. Both Lord Hobhouse (at paragraphs 54-55) and Lord Millett (at paragraph 82) underlined the fact that the employers in that case had entrusted to the warden the performance of a duty towards the children which the employers had undertaken. All the speeches make clear that each case must be examined for the closeness of the connection between the tort and the employment. That necessarily carries the high level of fact sensitivity to which I have referred.

44. In both Lister and Dubai Aluminium Lord Millett emphasised a consideration which will often be highly relevant to whether there is the necessary close connection. It is whether D2 has put D1, for his own purposes, into a position, in which the risk of a tort of the kind committed is inherent. Lord Millett put the consideration in this way in Lister at paragraph 65;

"Atiyah, Vicarious Liability in the Law of Torts wrote to the same effect. He suggested, at p 171: 'The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on.' These passages are not to be read as confining the doctrine to cases where the employer is carrying on business for profit. They are based on the more general idea that a person who employs another for his own ends inevitably creates a risk that the employee will commit a legal wrong. If the employer's objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business. "

It is clear that what underlies this consideration is the proposition that vicarious liability is likely to arise where the risk is inherent to an operation which D2 is carrying out for his own purposes. It is thus a further expression of the first part of the test posed by Lord Steyn, namely whether D2 has entrusted D1 to do something for him.

45. Lastly, it is now recognised to be possible for there to be dual concurrent vicarious liability in both D2 and D3 for the same tort of D1: Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151. That case was an example of the employee of D2 working for the time being under the direction of D3 (often referred to as a 'borrowed employee' case), but it may well be that the principle is not confined to that scenario. Necessary, however, for this dual liability to arise is that there be dual or shared control over D1, or at least that D1 is so much a part of the business, work or organisation of both D2 and D3 that it is just to make both liable for his tort: see May LJ at paragraphs 46-49 and Rix LJ at paragraph 78-79. In propounding the second of those formulations, Rix LJ explained that what lies at the root of all vicarious liability is that the employer:

"…is treated by the law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit." (at paragraph 79).

The present case

46. The case for vicarious liability of the Institute, as elegantly presented by Mr Leggatt QC for the Middlesbrough defendants, supported by Miss Coe QC for the claimants, runs in effect as follows:

i) vicarious liability is not confined to employment;

ii) there is no legal obstacle to it arising as between members of an unincorporated association;

iii) the fact that the tort was a deliberate unauthorised criminal act does not prevent vicarious liability arising;

iv) there may be concurrent dual vicarious liability;

v) the Institute effectively ran and controlled the school, alongside the managers;

vi) alternatively, if it did not, the brother-teachers functioned not only as the employees of the managers but as members of the Institute carrying out its apostolate; the Institute's strong discipline, together with the brothers' vow of obedience to their superiors, meant that its members as a whole exercised the necessary level of control over the brothers to render it liable for their torts;

vii) the Institute placed the brothers in a position in which the risk of sexual abuse was inherent, so that there was the necessary close connection between their relationship and the torts;

viii) ergo the Institute is vicariously liable as well as the school managers.

47. Attractively as the argument was presented, the last proposition does not simply follow from the preceding ones, even if they were all made out. That involves treating other relationships as simply equivalent to that of employment, which they are not. Mr Leggat recognised that in the case of an unincorporated association, vicarious liability arises only where the activity which gives rise to the tort is one which one member has been asked by the others to carry out, that is to say where one member thus acts on behalf of the others. Nor is it enough that there exists an inherent risk of the torts in question; the risk must be inherent in a business or operation carried on by D2, entrusted by him to D1, if the necessary close connection between D2 and the tort is to be established. That was what was in issue here.
48. The judge directly addressed the contention that the Institute was running the school and the allied but different contention that it exercised effective control over a brother-teacher's doing of his teaching job. He held that it did neither. These are questions of fact. They may include questions of secondary fact, in the sense that they depend on conclusions to be drawn from multiple pieces of evidence and primary fact, but they are still questions of fact, on which this court should be slow to interfere with the judge, who saw and heard the whole of the evidence. But in any event, on the analysis of the evidence which was undertaken by each party before us, I have no doubt that the judge was entitled to reach the conclusions which he did; indeed I have no doubt that he was right.
49. For these purposes I am content to make the assumption against the Institute that, had the question arisen between 1912 and 1933, the Institute was indeed then running the school. The 1912 agreement provided for it to do exactly that, albeit as the delegate of the managers and answerable to them, and albeit that some of the management functions, including probably the post release supervision of licensees, are likely to have been carried out by someone other than the brothers. But whether the 1912 agreement was ever formally terminated or not, the position was quite different after 1933. The Institute could not be the manager of the school for the purposes of the 1933 Act, since the composition of the managers was regulated and indeed had to include women. And from 1933 onwards, the staff, including any brother-teachers, were employed by someone other than the Institute, that is to say the managers. The position was even clearer under the 1969 Act when the statute designated an identifiable 'responsible organisation' under which the managers were to act, and there was active discussion which resulted in a positive decision that the Institute should not assume the role of responsible organisation, but that MDRS should.
50. Mr Leggatt relied upon the manner in which the Institute supplied and recalled the headmaster and other teachers, upon the inspections which the Provincial undertook, upon the distinctive identification of the brother-teachers as members of the Institute throughout, and upon a suggested extensive autonomy which the headmaster in practice exercised. He contended that these factors, together with the discipline of the Institute, provided the necessary control of the school.
51. It is certainly true that the Institute's power to regulate the deployment of its members gave it the power to decide who was to be offered to St William's and when anyone currently teaching there should be recalled, and thus required to resign. It is also true that on the occasions in the 1950s and 1960s set out in paragraph 31 above the Institute exercised this power in relation to the nomination and recall of headmasters and other teachers. But the power to ordain the deployment of the brothers did not give the Institute the power to insist that any particular person should be accepted and employed by the managers. That decision was for them, even if they may often have chosen simply to accept what the Institute proposed. The managers paid all the staff, irrespective of whether they were brothers or not; there was no saving for them in employing brothers rather than lay staff. The evidence showed that the managers advertised posts and issued application forms for promotions and new appointments, which were used by brothers and lay teachers alike.
52. Mr Leggatt pointed to the occasion in 1965 when for internal Institute purposes the school came to be dealt with by a different province. On that occasion it followed that the existing brother-teachers were recalled and the new province nominated replacements, including Brother Reginald as headmaster, who were adherents of a new philosophy of teaching delinquent boys. He suggested that this was, as well as an example of the internal control of the Institute over its members, an instance of the Institute demonstrating control of the school by setting out to alter its ethos. The evidence does not go so far. Brother Reginald, and his younger friend Noel Hartnett (then a junior brother) were in fact adherents of a then new philosophy of teaching. This was known and, as the judge found, welcomed by the Institute, but the principal reason for the replacement was clearly the change of province. In any event, that the Institute took the interest that is to be expected in the methods of its members does not mean that it controlled or ran the school, as distinct from influencing it. Similarly, the fact that the Institute acted quickly in about 1964 in recalling a brother-teacher who had been accused of indecency does not mean that it was controlling or running the school, as distinct from exercising its powers of deployment of its members. That the managers did indeed have the power of appointment was demonstrated when Noel Hartnett, who had been a brother-teacher but had departed from the Institute and indeed married, was re-engaged as a lay teacher after doing so, against the opposition of the Provincial.
53. The Provincial conducted an annual inspection. It was an inspection of the community and the brothers living in it, but it of course embraced their role within the school. In that sense, as the judge held, the conduct of the brother-teachers was overseen by their Provincial. Some inspection report forms were in evidence which had clearly been drawn up for schools owned and managed by the Institute, and no doubt it may have been convenient for these to be used when visiting St William's. Moreover, there was evidence that not every Provincial appreciated that the Institute did not run this school. But neither of those things means that the Provincial was inspecting as a person responsible for the running of the school or for the conduct of the brother-teachers as teachers. In one instance, as a result of his inspection, the Provincial wrote to the managers to draw their attention to the fact that the brother-teachers were having to act as night-watchmen in the absence of anyone specifically employed as such; that meant that he was concerned for the workload of his brothers but needed to refer to the managers for a solution. One of the brother-teachers gave evidence of a Provincial being clearly told by the headmaster "that he could visit the Home, but he must remember that he had no authority and could only enter the classroom or the house units by the invitation of the staff." On another occasion in about 1966 an earlier Provincial had to be corrected, by a different headmaster, when he misunderstood his role, thought the school was run by the Institute as other schools in his province were, and put up a notice thanking the lay staff for the assistance they gave to the brothers in running it. That had caused great embarrassment; at the time there were three brothers and fifty to sixty lay staff. Evidence of that kind amply justified the judge's conclusion that a brother's teaching task was subject to the control of the managers and not of the Institute.
54. It was no doubt true that the brother-teachers were readily identifiable as such, by their names at least, and whether they wore habits or not. I agree that they plainly retained their status as members of the Institute and were thus present as teachers also with that status. That does not mean, however, that they were, when teaching, in any sense acting on behalf of the other members of the Institute, any more than any member of a professional organisation who accepts employment with that status is acting on behalf of the organisation when he does his job. For the same reason the discipline exercised by the Institute is not sufficient either alone or in conjunction with the other matters relied upon to render it liable; it was a general discipline, iron in form maybe, but it did not confer control over the particular work done at the school. These brother-teachers were actually employed by someone other than the Institute.
55. Brother Reginald, headmaster for 11 years, gave evidence that he pretty well ran the school and that the managers largely let him get on with it. He said that they often did not really know what he was doing. But that could be said of his Board of Governors by a great many strong-willed headmasters, certainly in the 1960s. It shows independence of mind in Brother Reginald, but it comes nowhere near demonstrating that the Institute ran the school through him. The judge also heard evidence of the occasion when Brother Reginald, during a difference of opinion between himself and the Home Office, wrote to the managers asking for their support, but offering to "bow out gracefully" if they did not feel able to give it.
56. For these reasons, none of the matters relied upon by Mr Leggatt undermine the judge's conclusions that the Institute did not run the school and that it did not exercise effective control over a brother-teacher's doing of his teaching job.
57. Nor do I think that vicarious liability on the part of the Institute can be derived on the basis that brother-teachers were carrying out its purposes and acting in the capacity of members of it. True, no doubt, that teaching was the mission of the Institute, and that the brothers were therefore, when teaching at St William's or anywhere else, furthering that mission, having been sent there for that purpose. True, clearly, that they were identifiably present clothed with the status of members of the Institute and subject to its discipline. It does not, however, follow, that the Institute was engaged in the business of running the teaching at St William's. Applying the first stage of the test proposed by Lister, the Institute had not undertaken a duty of caring for the pupils at St William's and then delegated or entrusted it to the brother-teachers. Those brothers who taught at St William's were not doing so on behalf of the other members of the Institute. If, contrary to my view, the second stage of the Lister test is reached, then those other members, scattered all over the world, did not have the required interest in the business of St William's such as would create the necessary close connection between them and any torts committed by any brother-teacher on its staff.
58. For all those reasons the judge was right to hold that the Institute does not carry vicarious liability for torts committed by its brothers arising from their teaching occupations at St William's School. It follows a fortiori that there is no basis on which the Institute could possibly be vicariously liable for torts committed by any other person arising from his connection with that school.
59. Since Miss Coe did not contend for any primary liability on the part of the Institute unless it was also vicariously liable, it equally follows that the judge was right to reject primary liability.

The transfer of liability question

60. The consequence of the 1969 Act was that the Secretary of State was empowered to order that approved schools should cease to be approved institutions, so that the new Community Homes could stand in their stead. As part of that process, the Secretary of State was given, by section 46(2) and Schedule 3 the power to:

"…make such provision as he considers appropriate for the transfer to the responsible organisation of any rights liabilities and obligations which, immediately before the specified date, were rights liabilities and obligations of the managers of…the former approved institutions."

61. Such an order was duly made in respect of St William's: the Cessation of Approved Institutions (St William's School) Order 1973. Under it, the approved school ceased to exist as from the date specified, which was, in due course, 1 October 1973. All staff were transferred to the employment of "the voluntary organisation", which was MDRS. Article 7 of the Order provided, so far as relevant:

"..all liabilities attaching to the managers in relation to the carrying on of the school, including responsibility for the repayment of principal and payment of interest charges on loans, which subsist at the specified date shall as from such date become the liability of the voluntary organisation;…"

62. The claims now asserted against members of the school staff had not been made as at 1 October 1973. Mr Leggatt contended that any liability which may exist in relation to any torts which may be proved to have been committed before that date did not "subsist" for the purposes of this Article. Liability would only "subsist", he contended, if it had been established or ascertained as at that date. That was consistent, he said, with the context, and in particular with the specific forms of liability listed in the Article. And, he contended, such a construction was necessary in order to avoid giving retrospective effect to the legislative provision.
63. I am unable to accept any of those submissions. The transfer of liabilities is retrospective only in the very narrow sense that the new voluntary organisation (MDRS) became fixed with liabilities which pre-existed the date of transfer, but that is in the nature of such a transfer. Moreover, that element of retrospectivity is inherent in the specific example given in the Order, viz where the new voluntary organisation has transferred to it a contractual obligation undertaken by its predecessor managers. Any liability which may have rested on the former managers may not have been known, but it did exist, and it did subsist. True it is that the position is somewhat complicated by the fact that as at 1973 Lister still lay some way in the future, but the Middlesbrough defendants rightly disclaimed any argument based on any challenge to the declaratory nature of that judgment. Any liability which there may be for a pre 1973 tort can now be seen to have subsisted at 1 October 1973 and it attached to the former managers. Under the Article, it was transferred to MDRS. It is exactly the same as would be a liability for a personal injury accident which had occurred owing to a defect in the premises on 30 September 1973, and of which the former managers were, the next day, not yet apprised.

Conclusion

64. For these reasons I would dismiss the appeals of both the Middlesbrough defendants and the claimants against the judge's ruling that the Institute does not, as an unincorporated association, carry either vicarious or primary liability for any acts of abuse which may be proved in this litigation. Similarly I would dismiss the appeal of the Middlesbrough defendants against the judge's ruling on the effect of the transfer of liabilities provision in the 1973 Order.

Lord Justice Tomlinson:

65. I agree.

Lord Justice Pill:

66. The appeal is argued on the basis that the De La Salle Institute ("the Institute") is vicariously liable for the alleged physical and/or sexual abuse of pupils by staff at St William's school, Market Weighton, Middlesbrough. The school was, under successive statutory regimes, a reformatory, an approved school and an assisted community home.
67. The categories of staff are identified by Hughes LJ at paragraph 9 of his judgment. To establish the claim, it appears to me first to be necessary to establish vicarious liability for Institute Brothers who were on the teaching staff, including a headmaster, the first of the categories identified by Hughes LJ. If that is not achieved, the other categories fall away. The judge found that there was no vicarious liability and most of the judgment deals with that issue.
68. A primary, as distinct from a vicarious, liability was also alleged against the Institute. That submission does not appear to have been strenuously advanced before the judge and he made no specific finding, though he did consider, and reject, the primary claim in relation to the Middlesbrough defendants, at paragraph 134 of his judgment. The judge referred to Caparo v Dickman [1990] 2 AC 605.
69. For the claimants, Miss Coe QC stated that she put the appeal very firmly on the vicarious liability path and accepted that there was no need to go outside it. In the absence of vicarious liability, primary liability was not alleged. That being so, I see no need to explore the possibility of primary liability on the Institute on the basis of a duty of care on the Institute when supplying Brothers to teach at the school and following Caparo principles. For the Middlesbrough defendants, Mr Leggatt QC, expressly disowned reliance on the principle of agency.
70. Miss Coe submitted that public policy, which is the basis for the application of vicarious liability, required its application to the Institute on the present facts. Vicarious liability frequently arises in the context of employment. It was on the basis that they employed the staff at the school that the Middlesbrough defendants were held by the judge to be vicariously liable for the alleged abuse by staff members, and that finding is not challenged in this court.
71. The rationale for vicarious liability, in an employment context, was considered in Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627. Lord Reid, at page 643, cited, with approval, the statement of Lord Chelmsford LC in Bartonshill Coal Co v McGuire (1858) 3 Macq 300, 306. Lord Chelmsford stated:

"It has long been the established law of this country that a master is liable to third persons for any injury or damage done through the negligence or unskilfulness of a servant acting in his master's employ. The reason of this is, that every act which is done by a servant in the course of his duty is regarded as done by his master's orders, and consequently is the same as if it were the master's own act, according to the maxim, qui facit per alium facit per se."

At page 639 of Jones, Lord Morton of Henryton stated:

"Cases such as this, where an employer's liability is vicarious, are wholly distinct from cases where an employer is under a personal liability to carry out a duty imposed upon him as an employer by common law or statute."

72. In Imperial Chemical Industries Ltd v Shatwell [1965] AC 656, Lord Pearce stated, at page 685:

"The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it."

73. In the context of an industrial operation, it is now established that there may be joint vicarious liability for a workman's negligent acts (Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd & Ors [2006] QB 510). Rix LJ, at paragraph 77, considered the "function and purposes of the doctrine of vicarious liability" and referred to "the practical policy of the law which looks in general to the employer to organise his affairs in such a way as to make it fair, just and convenient for him to bear the risk of the employees' negligence".
74. Rix LJ further stated the principle at paragraph 79:

"I would hazard, however, the view that what one is looking for is a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence. What has to be recalled is that the vicarious liability in question is one which involves no fault on the part of the employer. It is a doctrine designed for the sake of the claimant imposing a liability incurred without fault because the employer is treated by the law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit."

75. In Lister v Hesley Hall Ltd [2002] 1 AC 215, the issue was whether the owners and managers of a school were vicariously liable for sexual abuse committed by the warden employed by them. The present issue is different in that the Institute is not the employer of the Brothers at the school. However, vicarious liability arises in this case, it was submitted, because of the control of the Institute over its Brothers, including in the way they conducted their duties at the school. In Lister, Lord Hobhouse of Woodborough stated, at paragraph 55:

"The liability of the employers derives from their voluntary assumption of the relationship towards the plaintiff and the duties that arise from the relationship and their choosing to entrust the performance of those duties to their servant."

An assumption of responsibility is claimed to arise from the Institute's control over the Brothers and hence over the management of the school.

76. The "social convenience" and "rough justice" involved in imposing vicarious liability is not confined to the employment relationship. Hughes LJ, at paragraph 41, has referred to Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 (vicarious liability of a partnership for torts committed by a member) and Thomas v NUM (S Wales) [1986] Ch 20 (liability of a union for picketing done by members on its behalf). I do not consider that the present issue turns on whether the Institute is incorporated or, as it in fact is, an unincorporated association, like the partnership in Salaam. It is a tightly knit hierarchical association with a mission and the court need not, in the particular circumstances, be deterred from finding vicarious liability by qualms about finding other members responsible for the conduct of one of their number.
77. I gratefully adopt the statement of facts by Hughes LJ. It is argued that the discipline imposed on its Brothers by the Institute, the control over their activities and the concern of the Institute that its mission was carried out at the school where Brothers were employed were such that "rough justice" and "social convenience" require the Institute to pick up the burden of operations undertaken for its own benefit.
78. The terms under which a man can become a De La Salle Brother are extremely strict. That is demonstrated by the Rules of 1947. These were restated in 1987 and, we were told, archaic references removed, but the changes were said not to be material to the present issues. I do not propose to cite the Rules. They are prescriptive and detailed and apply to all aspects of the life and conduct of a Brother. Extreme reserve is required, for example, when speaking to women. Brothers promised to keep inviolate all their lifetimes: "Vows of stability, and of obedience to the Body of the Society as well as to the Superiors of the Institute, as also of poverty, chastity and teaching the poor gratuitously".
79. The Brother Provincial is able to direct where a Brother can live and teach and can require his transfer to another community. The Brother's salary must be paid to the Institute. If a Brother is sent to a school managed by a third party, the Institute's control over his life remains complete. The Institute has a degree of control over its members which is very rare, certainly in this jurisdiction.
80. The claimants and the Middlesbrough defendants rely on the degree of control exercised by the Institute over the lives of Brothers to establish a vicarious liability for the actions of Brothers while employed at an educational establishment, even if it is managed by an authority other than the Institute. While not employed by the Institute, Brothers remain subject to its rules and lifestyle and public policy requires the Institute, it was submitted, to be vicariously liable for the activities of a Brother at such a school. Brothers are sent to schools by the Institute, to promote, by education and evangelism, its aims. That is their mission or apostolate.
81. Brothers remain highly visible members of the Institute when carrying out its mission at the school and live as such members and according to the Rules of the Institute while carrying out its mission. They are to be addressed as "Brother" and a particular style of life is imposed on them by the Rules. Given the degree of control exercised by the Institute over all aspects of the lives of Brothers, a vicarious liability arises, it was submitted. On an application of the Lister principle, the vicarious liability includes liability for the alleged misdeeds of Brothers towards boys, while teaching at the school.
82. Reliance is placed on the procedure followed when the single earlier allegation of sexual abuse by a Brother, disclosed in the available records, arose in 1964. The issue was referred to the Institute and the Brother was transferred by the Institute to another school. That is said to demonstrate the reality of control by the Institute at the school. While the manner in which the problem was resolved is not material for present purposes, it is significant, it was submitted, that it was the Institute which was expected to deal with it.
83. The appellants submitted and I accept that the situation is distinguishable from that of a professional or educational organisation. Such an organisation normally decides what standard a person has to attain before a degree or professional qualification is conferred. The organisation would not normally be vicariously liable for torts committed by that person resulting from a failure to live up to the standard set. The ability of a professional organisation to discipline its members for failure to comply with standards does not impose a vicarious liability for the member's failure to have upheld them.
84. It was, however, submitted that the Institute is not an ordinary educational or professional organisation. By control over the lives and activities of Brothers, it assumes a responsibility for their conduct while they are carrying out its mission.
85. Those submissions are not, in my view, without force. Moreover, if vicarious liability were to be established, I would expect it to extend, applying Lister, to the acts of abuse alleged against the Brothers. Where the claim to vicarious liability fails, in my judgment, is upon an analysis of the responsibility for managing St William's. Hughes LJ has identified the successive statutory regimes under which the school was managed at the material times. Under the Children and Young Persons Act 1969, an identifiable "responsible organisation" was designated. Hughes LJ has cited section 42 of the Act. Hughes LJ, at paragraph 17, has also referred, as did the judge, to the manner in which the school was managed over a long period. I agree with Mr Leggatt that the court can conduct its own analysis of the primary facts.
86. In my judgment, there can be no doubt that St William's was managed by the Board created by the statutory scheme. While many members of the Board of Management would be sympathetic to the aims, purposes and practices of the Institute, the members are separate from the Institute and have personal and a corporate responsibility as a Board for managing the school. Reflecting public policy, the law requires them to be vicariously liable for the activities of Brothers at the school. They tolerated, and were entitled to tolerate, a system which permitted the Institute to decide which Brothers should teach at St William's and even the teaching methods to be adopted. Their tolerance of that system, encouraged no doubt by a common Roman Catholic heritage, does not limit their responsibility for the way the school is run and for the activities of members of staff. Nor does it create in the Institute a vicarious liability for the Brothers' conduct.
87. That is amply demonstrated by the statutory scheme under which the school operates. The headmaster, appointed by the Institute at material times, undoubtedly had considerable power in running the school but, managed as the school was by its managers, I cannot agree that a vicarious liability devolves upon the Institute. The headmaster and staff were supplied to the school by the Institute (though in diminishing numbers) but the Institute was not undertaking the task of managing the school. I do not accept that the material shown to the court, by way of minutes, letters and other documents, as well as the oral evidence before the judge, had the effect of imposing a vicarious liability. I agree with Hughes LJ and with the judge.
88. By contrast with Lister and Viasystems, it cannot be said that the Institute was undertaking the task of managing the school or that management of the school was undertaken for the Institute's own benefit. The school was managed and regulated under a specific and comprehensive statutory scheme designed to achieve the public purpose of caring for and rehabilitating the young. The lives of Brothers were controlled by the Institute, and they no doubt considered they were carrying out the mission of the Institute when working at the school, but it does not, in my judgment, follow that its interest in the school was such as to attract the operation of the principle of vicarious liability for Brothers working there.
89. Management of the school was expressly the responsibility of the Management Board and I see no basis, in the circumstances of this case, for the imposition on the Institute of vicarious liability jointly with the Board. In agreement with Hughes LJ, I would dismiss this appeal. I also agree with Hughes LJ on the transfer of liability issue.