hello. Welcome to this second precarious liability Webinar Gordon. Precarious liability to. So I'm gonna pick up some of the areas that we didn't deal with in the first precarious liability weapon on my name's Niki Carter on what we're going to pick up this time is really a bit of a look at violence in terms of the caress, liability and really thinking about things like violence within sport, violence at nightclubs, possibly bars. Looking at the whole issue off. Precarious liability on the criminal injuries, compensation authorities Air really story there. How does that work is a viable alternative to bring a claim against our employer? What does the portal role? What is the portal rolling in these cases on? Then? I wanted look specifically at one particular area or precarious liability and how it relates to abuse on sexual assault. Not stuck a little bit about identifying the defendant on limitation issues. Let's think about the possibility that, rather than bringing of a carrier's liability claim where there's perhaps been on assault but one of the options one of the alternatives, if you like, is to think about bringing a claim to the Criminal Injuries Compensation Authority for lots of reasons. I think we can argue that there is. This is a much less appealing route. Or sometimes if the insurance position is not clear, if perhaps the merits of the precarious liability came are not clear. And maybe that I came. That will do both in tandems and they may well make an application to see. I see a Andi pursued a civil claim in tandem. Obviously, the claim. It doesn't recover damages twice, but a number of reasons, I think maketh e c. I see a came less appealing Andi. I think the 1st 1 meal is because we've got a much lower damages tariff in the C I C A. C. Check out on the criminal injuries compensation. All 30. You'll see there is a damages tariff and in many cases, the tariff awards are lower than you would expect to get in a claim in a cyclical and in this country, so less appealing from that angle, other less appealing aspects of the criminal injuries compensation authority came relate to this C. I. C. A s interest, let's say in things like the claimants alcohol intake. If the incident has occurred, a club or a night at night venue on the claimants been consuming alcohol. It's one of the considerations that the C. I. C. A will take into account, not necessarily just in respect off contradictory negligence, but it will count against the claimant. In addition, and this is always a problem, the potential off the claimant having any previous criminal convictions again in certain circumstances, the C I C. A. Will view the presence off criminal convictions on part the claimant as leading to a situation where the climate recover no damages or significantly less damages. In addition, they will also take into account any previous connections between the claimant on the assailant and again. Sometimes that could be difficult, sort through and can cause problems with recovery on then. Of course, last but absolutely not least is the issue off cost recovery. I'm limited deal that you may get with See, I see A. In other words on arrangement will have to be made with the claimant for some kind of contingency fee agreement to deal with the costs of pursuing a claim on know whether or not the matter goes as far as an appeal against, to see I see a decision or simply an application, they're gonna be significant Costs on the claimants is going to have to come up with some kind plan in order those costs to be paid contingency fee agreements obviously permissible because this is non contentious work. But it means that the kind will be looking to lose a significant amount of damage is certainly part their damages. As a result, off pursuing you came to see I see a are the least of it off course is we also got a remind of See, I see a claim is in the offing then limitation issues are different on We've only got a two year limitation period from the index accident if you like. So there are a number of complications. I think that means that there may be unsatisfactory results from the C I. C. I claim much more appealing is to bring a claim against the assailants employer, all the organization who you consider might be in a position to control the assailant in a similar way to employ we saw in the first weapon on this Siri's that you know, situations like, for example, prisoner Andi from the Ministry of justice. The relationship in that circumstance might be considered similar to employer on. We also saw situations where the court was prepared to consider somebody who had quite lost control of the way in which we work. Work carried out their work, for example, in a bouncer independently employed but working outside a nightclub. The court might be considered that that bouncer waas, a temporary, deemed employees off the nightclub, ensuring that clank of united against the nightclub and obviously, that the appeal with a sweet talked about in the first weapon are off these cut types of claims. Precarious liability claims is that hopefully you're bringing a claim where there is, in fact, some insurance. In other words, you can hope that there is in fact a means for the claim to be paid. The extent of which the court is prepared to consider the so called accorded bouncer doorman assaults was really examined in the fairly remarkable case. I think Off Matters and Pollak are back in 2003 and in that particular case, the defendant employed on unlicensed doorman at a nightclub the defendant encouraged was the argument that Dorman's aggressive on intimidate ary behavior and when the doorman stabbed a nightclub, go out outside the club some hours after the club had closed on, stabbed the nightclub girl with a knife that he got back to his own flat and obtained. This story really, is that what we see is arguably a situation where we saw this phrase before, where there might be a risk of the court deciding that the bouncer, the nightclub doorman, was on a frolic of his own. There was an element of personal revenge in the assault. However, that's not how the court saw it. The court took the view that vicarious liability could arise even if the act of the employee was, to some extent an independent act. The stabbing clearly was directly linked to an incident which had taken place at the club earlier. Are stabbing was so closely connected surgical with what the defendant authorized or expected the doorman today in the performance of his employment that it will be fair and just to impose liability in those circumstances. So what we get in this case is a decision. The owner and operator of the nightclub, vicariously and personally liable to the claimant, was stabbed outside the club by an aggressive on unlicensed doorman employed by the Cup. What we can see really here is growing development, really off the carrier's liability, where claimants have a need to bring proceedings against a person or an organization was gonna have the means that presumably will have the means off paying the claim on, as I say, I think you know, as we said in the first weapon on this Siri's, that one of the issues is not necessarily the timeline off events, because here clearly the assault took place some hours after on the initial altercation between the cop go on the bouncer. But whether or not the bouncer was acting closely connected with what he was employed to do, and here the court took the view that indeed he waas one of the issues in concerning insurance. But we have to address. I think he's, you know, whether we'll know it's incumbent on somebody who employees, If you like a nightclub about sort of outside a nightclub and and let's take the case of Naylor impaling as a good example, actually, so you've got a of a nightclub who obtained the services, all a security company? Let's call. It was supply bounces to the club, Easy incumbent on that night cop to check out whether that, let's call them an independent contractor actually has insurance to make any claims that might arise from the actions of those security doorman. In this particular case, the claimants paling had head injuries. He sustained those injuries as a result, being ejected from Naylor's nightclub by Dorman, employed by another organization. And it's accepted that the doorman had been negligent. The argument from the nightclub was there was no obligation for the nightclub owner to inquire as to whether the employer of the bouncer had insurance on that. It was enough to fulfill the duty nightclub owner had by checking that the company supplying the bounce of walls credited under the appropriate screen Mumbai police government on that the judge been wrong in law if he based his decision on the existence off a free standing obligation on the nightclub owner to ensure that the bouncer was the company employing about sin was fully insured. Alternatively, the decision was based on the conclusion that the nightclub owner should have inquired whether that cover was in place that was applying far too high. A standard of care on the argument for Mr Palin because this case was successful at first instance was that the judge's decision had been correct. Eyes the nightclub owner had a duty to ensure the independent contractor was not really competent but also suitable, and that meant insured. Now it's interesting. The court appeal took a different view. No liability on the owner of the club merely because he failed to satisfy himself. An independent contractor engaged to provide security was insured or otherwise, to meet a claim for negligence. That's not how it works. The job off Doorman said the court didn't fall within the type of hazardous activity considered in cases like for William My Starts Hospital, Bottomley Top Mormon Cricket Cup where the court took the view that certain types of undertaking certain types of work the independent contractors come into dio are high risk activities on as they are high risk. A separate. An additional duty exists to check out the insurance situation of those individuals before employing them. If you think about how, for example, the occupiers liability at works in terms of obligations on the part occupies when they employ independent contractors it's looking at that issue in this case. On the appeal, the court took the view that were a scheme by a local authority accredited individuals to carry out the task which was to be performed by the contractor. It would require very exceptional circumstances before judge properly hold that an employer was negligent in selecting a particular accredited contractor. Consequently, Nova carries liability in that particular case for there to be vicarious liability. The wrongdoing worker must be unemployed. E four so closely related to an employee that doesn't matter. Andi must have acted in the course of his employment. Or let's make a more useful term. Must have acted in a way that was closely connected to his employment. Let's take a look at the situation concerning sport. Andi injuries problems that occur as with result off sporting incidents. On one of the interesting cases is case called Gravel in Red Ruth Rugby Football Club that comes along and concerns the situation where both let's call them Genc will both semi pro rugby players see had a contract of employment with rugby club. The contract said that see, you should not physically assault opponents on that. Our might be precariously not reliable for the active see during his employment in this case after the whistle, but blown in a rugby match between our, for which she had been playing in the second row forward on another rugby cup, G had been playing as a prop forward. See had punched G in a sort of Millais that caused him injury. See was held liable for the assault and G was awarded damages. But in this particular case the rugby player appealed events the decision but Rugby Cup was not precariously liable for the tortious assault on him by the first respondent. Every play. Let's see what the court appealed it with this, the court said, looking at the matter broadly. It was fair and just toe hold the club liable for the punch because the risk off see punching another player on causing him. Injury was reasonably incidental to the risk off Playing rugby pursuant to the contract to the appeal in this case was a luck was allowed on. The real deal here is that they the act was so closely connected with his employment that it would be fair and just toe hold the club responsible clearly the poaching was not part of the game was, but it was an independent off it. Throwing a punch is after the whistle might be regarded as an ordinary incident off a rugby match. I had the court the view that you know, breach of other terms of the contract, the assailant, if you like by bringing a club into disrepute. Failing to comply with the rules of rugby union had also clearly stepped outside like what? His employers. We wanted him to do the ways employers would have wanted him to behave on. The the view taken was, it could only be on the basis that the act might be committed in the course of employment. I e. By playing rugby for the club on any view. He's been acting in the course of his employment when he punched the claimant. No only was there close connection between the punch on the employment, but the punch amounted to a failure two full his duties on. It's really important, I think, to take a look in these circumstances, pat employment contracts on terms in the contract. But it's quite clear that provision in his contract that enabled the club to try and deter foul play. In the circumstances that called thought, punching another player was reasonably incidental to the risk playing a rugby pursuant to the contract brought on the court took the view that the carry slightly that it should be in place if we take a look at another example. Oh, the role. If you like off sport and schools in this particular case on vicarious liability, let's take a look at Mount Food a Newlands school, of course repeal decision. In this particular case, the court took the view that a school was vicariously liable in circumstances were remember it started selected a boy well over the age group for the match. But he was playing in two playoff junior rob beating on that the boys superior size, weight and maturity had contributed to an opposing player being injured. In this particular case, the court took a look at the relevant guidelines for schools rugby. At the time, the junior of the guidelines of the England Rugby Football Schools Union on it was quite clear from one of those rules that players should know normally being out to play other than in their own age grouping in this particular case, the boy who carried out the tackle wars well over the relevant age on also considerably larger than most of the other boys playing and certainly larger, um, that the climate being injured. And the idea here, really, was that having regard to the size of the boy had been selected to play, the fact that he was well over the age limit for playing was teacher who selected him should never have done so. There was no suggestion than some special reason, such as inability to get a game elsewhere. Why you should have been allowed to play on that breach. The duty established precarious liability in this particular case. So it may be that even selection of players, particularly contact sports like rugby. The decision to select particular play might mean that the court takes the view that that decision is a negligent one on that schools for kerosene liable for that negligent decisional part off the teacher. Let's take a look at the way in which the portal might deal, for example, with the caress liability claim, and I'm thinking particularly off exclusions from the portal. Now on. If we look at exclusion 4.3. We remind ourselves that in terms off the ear Pio portal exclusions, types of planes excluded are for damages in relation to harm, abuse or neglect or by Children or vulnerable adults. Now the thought there is. Well, if the situation of the happy is, for example, a sexual abuse claim on, that's the nature of the kind of what but on its category plane going to talk about this webinar, then the portal clearly expressly excludes claims off that nature on. One of the things obviously would have to think about is whether or not it's safe to failed to commence the claim within important if the argument is that it does in fact relate to abuse, sexual abuse, physical beasts by or to anyone who's vulnerable. I was an adult or child. If that's the case, the portal will simply excluded in terms off historic abuse actions. One of the things that becomes an issue in these kinds of claims, and it's something apart. This second vicarious liability webinar is you know, the extent to which historic abuse claims will. I raised the issue off problems with limitation on one of the things we need to be very clear about is that Section 33 discretion is available for deliberate assaults, deliberate sexual assaults if that's the case on so that there is always the possibility. Oh, asking the court to exercise their discretion on allowing the case to proceed. I've said in the slide, if there's no prejudice and I think now, whilst we can look at the factors that are relevant when the court on any judges exercising their Section 33 discretion, what we can see without question is that what's really relevant here is prejudice of balancing prejudice. That's really what's going on. So if we could, if we're able to show that the balance of prejudice if you like it falls in the claimant's favour, then a successful Section 33 discretion application might well be made on you know, there's no question that includes unincorporated organizations who may have the caress my ability, I think, you know, in terms off the response to the increase in historic abuse actions, there's no question that the court's got a greater control of which cases are permitted to proceed by imposing on objective date of knowledge, much nearer to the axe off abuse thus making most kinds statue Bart. So we have, you know, remember that the date of knowledge test is an objective and not a subject if one. So we're interested in the date of knowledge off a reasonable person in the kindness position. But also the date of knowledge goes back to the information that the claimant could have obtained had they made taken all reasonable steps. So it is quite a harsh in position off the test to make an objective. For that reason, it makes it much more likely that Section 33 dispensation will be sought in more cases, liberalising the exercise of discretion by considering the effect of abuse on the victim and causing delay ensuing and permitting cases to proceed if there's no evidential prejudice to the defendant, so that's fair trials can still be possible on one of the huge challenges with historic sexual abuse Claims is ensuring that there is an evidential prejudice to the defender ankles in difficulties with a fair trial. One of the other ways in which the court handles the civil procedure has attempted, if you like to try and increase the ambit or precarious liability, is to include unincorporated associations. So the organizations, for example, where carers ministers teachers have access to victims, maybe vicariously liable if the relationship between the abuser on the organization is akin to employment. Remember, we discussed in both the webinars on vicarious liability that actual employment might not be necessary and kin to employment may be sufficient on also causes. The abuse arises because the organization has this is a phrase. It becomes very important, materially increased the risk of the abuse occurring. Andi. It's fair, just unreasonable for the organization to be made liable on. That's absolutely a consideration the court will apply in deciding whether precarious liability should be found or note some. One of the other factors we need to talk about we talk about limitation is the fact that time doesn't run against the abuse child. Of course, it doesn't receiving Section 28 an invitation act until that child reaches the age off majority eso do toe plethora. If you like off social and psychological factors, these cases are nearly always going to be borne out time. Children affected by section This can abuse frequently. The story will be that they feel ashamed, embarrassed or too traumatized to disclose the facts of their assaults on until more recent changes in attitude and understanding. I think our Children who did disclose were often not believed frequently because the causes and consequences of being in care created damage on vulnerable personalities are very often the argument was a targeted and groomed because of their lack of credibility. I'm very often that's combined course, isn't it with abusers who are in positions of power over Children on a parallel to carry out the acts through fear Andi favors to silence them. So what's clear is that psychologists, psychiatrists have noted that the capacity of victims of abuse to suppress CB's and create ah, form of psychological denial only in later years to develop psychiatric problems office, often induced by other stresses in life but essentially caused by the abusive experience, is understood situation now. So what we've got is the likelihood that these cases will be bought out of time limitation or, prior to the A whole case further inhibited legal action. So the case was bought more than six years after the age of majority, as the House of laws ruled in. If you remembered Stubbins and Web, the intentional assaults were originally excluded from the person injured. Provisions of Section 11 40 Exception. 33 of the Limitation Act on Accorded Me was subject to an UNext ended a six year period. That's the past since the case of a whore that's no longer the case. Must we said Section 33 Discretion is still something you can apply for in these cases, since the case of an All, which went to the House of Lords when we still had the factors that are relevant in a Section 33 limitation act application, all fairly innocuous looking, however, I think it's important remind ourselves what they were. They are the length and the reason for the delay on the part of the kind, so good evidence needs to be produced to show why the delay happened on again. It's interesting that the factor in Section 33 talks about the length of delay, but I think if you did a review of the cases where Section 33 discretion has actually Bean accepted, the length of delays is not really the major issue reason for it and effect of the delay. Just second factor on the relevance of the evidence is much more important. Conduct of the defendant following the date. The course of action on a pleasant disability, the meaning of the Mental Capacity act, the duration of that disability suffered by the claimant after the cause of action arose. Those are the factors that are relevant for a judge when attempting to decide whether to exercise discretion on allow the claim to proceed out of time. Ondas We talked about sexually 14 is key here and we said one of the problems were Section 14 is that climate state of knowledge will be viewed objectively. Consequently, it is much more likely in those circumstances that address is going to be paid, if you like to a Section 33 application, let's look at the issues if you like what else the court will decide because its guidance, if you like. These factors under Section 33 are only for a guide for the judge. The courts required to look at all the circumstances of the case when considering a Section 33 discretion application on it will attempt to balance the needs of the parties are seeking to avoid prejudice caused by into the claimant by depriving the claim that the right to continue with claim or prejudice caused by the defendant in allowing the matter to continue where he's been deprived of the ability to defend himself. So there are the key factors. But looking at the case in the round is key when when a judge is making a decision to decide whether or not discretion will be exercise, we looked very briefly at the case or blister on Hensley Hall. Make a wider point in our first webinar on precarious liability on this weapon are we're going to take a look at the facts few like off his legal unlisted on in this particular case that you might recall involved abuse of Children at a residential facility by the warden off that particular facility on the issue really is a number of Children have been a war. Abuse by this warden are attached with school specialized in teaching Children with learning difficulties. The warden was also responsible for discipline and day today running of the school and clearly had abuse. Several Children were holding that position in this action against the school. Court rejected the claim that the school was personally let negligent in the care selection of control of the water. That's interesting. First stage of the argument really isn't it whether or no that negligence happened in the selection of this particular individual. But the second argument was whether the school was vicariously liable for those acts. The court of the view the wardens acts were so closely connected with his employment that would be fair and just hold the employers liable. In the court's view, the sexual abuse was inextricably interwoven with the carrying out by the warden off his duties on the employer should be held to be vicariously liable. And you know that's the test of you like that. We still deal with now but closely connected test if we take that principle and apply it to wider circumstances on, in this case, the G B in Stoke City Football Club in 2015 cases an interesting example. The issues really were a former apprentice Football who failed to discharge is built in approving a P I claim from assault suffered allegedly a hands off a professional player. The court took the view. Even if it establishes his came, it would have been an unjustified extension of the doctrine off precarious liability to hell. The club liable for the assaults since no full powers duties were conferred on professional players in relation to the disciplining of apprentices that came up was an apprentice. The claim. The claimant claimed damages for personal injuries are rising from two assaults alleged to have taken place while he was apprenticed to the first defendant local club. The events were said to have taken place between 1986 and 1987 when the climate was aged 16 and scenting on. The second defendant was a professional player with the club. The claimant argued that he was subject to a number of practices concerning ah sort of initiation ceremony. On argued that these practices were said to be commonly used against princesses as a form of punishment by professional players for things like found before menial tasks for them such as clean back it. The court took the view that the relationship, if you like between professional player on The Apprentice, was not sufficiently that off conferring on the professional player, you know any kind of responsibility for maintaining discipline for chastising the apprentices on you again. Once again, the idea What's that? The incidents took place outside the relationship, the employment relationship, a frolic of euro off their own. Any independent action in the absence of formal duties or powers conferred on professional players incidents. Such Aziz by the claimant would have amounted to deliberate, intentional, reckless conduct outside the course. Off the employment relationship, the court took the view. With the assaults took place, the club was not precariously liable for them. Even where the claim materially some physical and psychiatric injury. If we contrast that decision with decisions that we've seen in relation to claims are very often again involving young Children against the church and in this particular case, the institute brothers of the Christian Schools. We see the Court of Appeal declining to extend precarious liability to the institute brothers whose priests his teachers perpetrated sexual sexual abuse against pupils in schools run by the first defendant who had been found precariously liable. Now, this particular case, the Court of Appeal that declined to extend that in this particular case, um, the decision was appealed to the Supreme Court. It's in the Supreme Court that we get the court of the Supreme Court deciding your appeal should be allowed on taking the view. That relationship between teaching brothers and the institute was sufficiently akin to that of employer and employees to satisfy the first stage of the test. In other words, first necessary to consider the relationship between the defender on the Tour Feezer to see whether it was one that's capable of giving rise to precarious life. It, secondly, where God needs to be had to the connection that linked the relationship between the defendant on the talk, phaser on the act or omission or the latter on the second stage of that, it's the precise criteria for imposing precarious liability for sexual abuse was something the court acknowledged was still being decided by judicial decision. But a common theme arose on its in this case, where we hear the courts say precarious liability should be opposed where a defendant whose relationship with the abuser put them in a position to use the abuser to carry out its business or further its own interests on a done so in a manner which significantly enhanced the risk that victim or victims would suffer the relevant abuse. And it's that close and self connection. Andi, the creation off the risk. That makes it much more likely that precarious liability be found. The court took the view in the case we just talked about in the Supreme Court, but both tests were made out. The necessary relationship between the brothers and the institute akin to employment. Andi, the close connection between that relationship on the abuse committed at school on the court, took the view. But both those things have Bean made out the close connection between the brothers teachers employment in the school on the sexual abuse. There was no Criminal Records bureau at the time, but the risk of sexual abuse was recognized. I demonstrate by the prohibition in the institutes rules on touching Children. There was a specific prohibition about it, the placement of brother teachers at school residential school, where they also resided in greatly in the haunts, the risk of abuse by them if they have a propensity for that kind of misconduct. On by the same token, we see in J. G and the trustees of Portsmouth, Roman Catholic dozens and trust the court taking the view that the relationship between a Roman Catholic parish priests on a bishop was sufficiently closing character to that of an employee on employer. To make it fair, just unreasonable toe hold the diocese vicariously liable for the wrongful acts off one of his priests. And it's interesting that the court went further on, described effectively what they called a business model off the Roman Catholic Church with the pope in the head office. There were regional offices with appointed bishops on local branches. Were parishes with their appointed priests resided? So whilst there was no unemployment relationship, the result of the tests lead to the conclusion that this particular perpetrate, if you like, um waas close enough to be in a relationship with church. That was effectively that often employees more like an employee that an independent contractor akin to employments that phrase court used. He was in a relationship with his bishop, close enough and sufficiently akin to the employer and employee to make it just and fair to impose the carrier's liability. If we take the phrase akin to employment in the case off trustees of the Watchtower Bible and Tract Society, the trustees of the Society of Jehovah's Witnesses were in this case found to be vicariously liable for the sexual act assaults off a ministerial servant on child on for the failure off the elders to take reasonable steps to protect the child once they knew the servant had abused another child. And again, in this particular case, the court took the view. But once the individual had admitted his sexual abuse, it was foreseeable that his continued presence in the congregation presented a risk of abuse toe. Other Children are consequently fair, just and reasonable was the phrase used to impose a duty of care on the organization to protect Children from abuse by this individual. The warnings that were either not made or were insufficient clearly meant that there been negligence for which the organization waas vicariously liable. Let's end with a situation that was too far for the court to decide The carrier's liability. Applied School Special Expeditions companies is the X VW case will not liable for the rape of two peoples by a local man who acted as a guide during an overseas school trip. Neither the school nor the company could be held accuracy liable for the assault. Since the attack had not been reasonably foreseeable, it wouldn't be fair, just all reasonable to define the scope of the duty to keep to the girls that were a way to require them to have taken special precautions to avoid it. It's quite clear that in this particular case is unsuccessful in overseas claims. Local council giving advice on liability on enforcement Judgment in assault cases on possibly the existence of national criminal injuries compensation XGAMES will be helpful clearly precarious liability claims. Take a look at the facts. It's the test of reasonableness. I consider direct liability any alternative to second reliability. So I never was. Never mind just precarious liability. Has there been negligence in any particular case? Royal With unjustly Karen's liability? That's the end of this webinar. Andi. I hope it's being helpful. Thank you.
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