Vicarious Liability: A roadmap for healthcare providers
An analysis of limitation and vicarious liability following the decision of Mr Justice Chamberlain in JXJ v The Province of Great Britain of the Institute of Brothers of the Christian Schools (2020)
Abuse cases typically involve issues of limitation and a debate as to who should bear the legal responsibility for the actions of the wrong doer(s) via the principles of vicarious liability.
This judgment does not disappoint, providing an interesting analysis of limitation (the applicable law being Scottish but with reference to English criteria) and a very helpful review of where we are following the Supreme Court's decision on vicarious liability in Various Claimants v Barclays Bank .
Both of these concepts are also regular challenges for those involved in advising healthcare providers and this decision sets out a roadmap to help us navigate what can often feel 'offroad' territory in a clinical context where there are often a multitude of participants and contractual complexities.
The claimant (born in 1962) attended school in Scotland where he was abused by a gardener/night watchman between 1972-1974. The issues before the court were:
1) Could the school rely upon a limitation defence and, if no;
2) Was the school vicariously liable for
a) the gardener/night watchman- disputed
b) the headmaster- accepted but disputed any abuse occurred.
c) the teachers – accepted but disputed any abuse occurred.
Primary limitation expired in 1983. Proceedings were not issued in England until 36 years later (2018), requiring the court to consider if it would be possible for a fair hearing to proceed i.e. to answer the question required under Scottish law- was the prejudice to the defendant in the case continuing substantial?
In relation to the gardener/night watchman after careful analysis of the evidence it was found that the claimant should be allowed to pursue his claim for damages. This was not the case for the claims against the headmaster and the teachers – barriers being the lack records and death of the alleged perpetrator.
It was accepted that the gardener/night watchman was employed by the managers of the school, not the defendant and that as a result, for the defendant to be vicariously liable for his wrongdoing, there would need to be positive answers to the following questions:
a) did the relationship between the two of them make it proper for the defendant Institute to be held responsible for the abuse inflicted by gardener/night watchman upon the claimant i.e. was the relationship akin to that of employment?
b) was the connection between that relationship and the wrongdoing such that the abuse could be found to have been committed whilst the gardener/night watchman was acting within the scope of his employment?
In contrast to the debate that was the focus in Barclays this was not a situation where there was an argument as to the wrongdoer's personal business activities, and whether or not he was an independent contractor. The focus here was one of the links between the wrongdoer and the school and whether the relationship between the two of them could be identified as akin to that of employee and employer.
The decision was that such a relationship could not be found. Employment relationships that were integral to the defendant involved their business of delivering a Christian education i.e. providing teaching services to the pupils. The wrongdoer was a gardener/night watchman and this service failed to satisfy the integral test.
For more information please contact Vicki Swanton, Partner, DWF Healthcare Team on +44 7799 110088 or at Vicki.Swanton@dwf.law
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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.