Apportioning blame – Anglican Church v BBC in relation to sexual abuse and vicarious liability
The veteran MP and “Bolsover Beast” Dennis Skinner dubbed the Archbishop of Canterbury Justin Welby’s recent criticisms of the BBC’s handling of sexual abuse an instance of the pot calling the kettle black. Realistically, is in the unedifying war of words between the Church of England and the BBC, it is difficult to imagine either side emerging with much glory; unquestionably neither of these British institutions did enough in response to the heart-breaking reality of sexual abuse. Yet another news story of Church failings in this regard has emerged in the days since the Archbishop made his remarks; equally it is now unanimously accepted that the culture of collusion within the BBC was a crucial factor in enabling and concealing sexual predation by Jimmy Saville on a horrifying scale.
The degree of public anger demonstrated in relation to the handling of these heinous crimes is completely understandable. Innocent people, many of them defenceless children, have suffered beyond most people’s imagining. Where this could have been avoided, it is important that someone is called to account for not having prevented it. However, from a legal point of view, thorny questions about where the outer boundaries of responsibility lie remain to be answered. How far should organisations be blamed for the evil actions of maverick individuals? It is crystal clear that where a body ought to have been aware of the damage which individuals were suffering, and failed to act; or sustained an environment which was unsafe, they will quite rightly be liable in negligence. For instance, if a gymnastics club received repeated complaints about one of its teachers touching children inappropriately during lessons, but failed to follow this up or take any action, their recklessness would give rise to a claim, should any harm come to a child at the hands of that teacher. At that level, the same basic principles apply as they would if the club carelessly allowed gymnasts to use broken or damaged equipment which led to injury.
However, the response to these situations becomes much more complicated in the field of vicarious liability, a form of strict liability in tort (the law of civil wrongs) which arises where an individual commits a tort whilst acting for a third party. In those situations, provided that all the necessary boxes are ticked, the third party will be liable for the wrong done, even though he, she, or it, was in no way at fault; the relationship between employers and employees being the classic example. It has long been the case that if an employee commits a tort whilst carrying out his or her work, the employer must pay for it. For instance, the fact that a supermarket had properly trained, supervised and monitored all of its employees would not allow it to escape liability, had those employees carelessly ignored a broken bottle of lemonade flooding an aisle, and a customer suffered injury from slipping in the sticky puddle.
Nevertheless, despite the fact that the outer boundaries of vicarious liability used to be fairly clear, they have blurred and expanded over recent decades. Firstly, there has been a broadening of the categories of relationships which will trigger it, and quasi-employment as well as employment will now be sufficient. Therefore, Roman Catholic priests, lay brothers and part-time, unpaid ‘ministerial servants’ in the Jehovah’s Witness movement have all been deemed to come within its grasp. Secondly, courts have expanded their idea of what amounts to a sufficient link between the tort and the intended activities of the tortfeasor (person committing the wrong); now claimants need only establish a “close connection” between the two. Unfortunately, what exactly this means is to say the least somewhat unclear. The courts have stated clearly that it must be something more than merely giving the tortfeasor an opportunity to commit the wrong, but have been extremely vague as to how much more. Strikingly, Morrisons supermarket were found vicariously liable in 2016 when an employee of theirs took it upon himself to racially abuse and violently assault a man who came to the petrol-station where he worked. There was nothing in the employee’s past record or behaviour which would have enabled Morrisons to have predicted this sudden and vile act of aggression, yet they were required to pay.
Consequently, the story of vicarious liability is still unfolding, but it raises complex issues about the line between appropriate accountability and the imposition of unjust burdens. It can provide a way around victims of heinous and deliberate behaviour from having to navigate the obstacle course of negligence, but the question which we need to face is whether this is always desirable. Should faith groups and other voluntary organisations, not to mention businesses, bear the burden of wrongs which harm, rather than benefit, their work, and which they could in no way avoid? What if the Morrisons precedent were to be applied to a small family grocery business? Could that outcome ever be regarded as fair?
Confronting the darkest aspects of human nature and activity are not easy for either society or the legal system. However, it would be desirable to try to achieve a mature and realistic dialogue about the standards which we expect of organisations in relation to workers. It would also be beneficial to thrash out when and why vicarious liability should be allowed to attach and by-pass any need to prove fault. In any event, the unfortunate mudslinging between bishops and the BBC will do very little to further this goal.
Church ‘failed’ over Sussex abuse priest Jonathan Graves (BBC News 9/10/17)
Unbelievable. Pot calling kettle black. (Twitter@Bolsover Beast 29/09/17)
Archbishop criticises BBC’s response to Jimmy Saville’s crimes (BBC News 30/09/17)
Justin Welby accuses BBC over Jimmy Saville abuse victims (The Guardian 30/09/17)
Mohamud v Morrisons  UKSC 11
Appeal refused in Jehovah’s Witness abuse case (The Outer Temple 07/07/16)
A v Trustees of the Watchtower Bible Society EWHC 1722 QB
Jimmy Saville: BBC pulled Newsnight documentary “inappropriately” (The Telegraph 15/10/12)