The courts’ continued extension of the scope of vicarious liability has rendered organisations potentially liable for the actions of an ever-increasing number of individuals (for whom no liability existed previously). However, vicarious liability does not extinguish the personal liability of individuals who perpetrate acts of abuse.
This reinforces the critical importance of organisations pursuing abusers to meet claims for abuse they committed, particularly where they have been convicted of that abuse.
It is well-established that insurance exists to indemnify organisations in respect of any claims made against them for alleged abuse by their members. However, in normal circumstances this indemnity does not extend to individual perpetrators of abuse.
This is consistent with public policy and general principals of insurance law that individuals simply cannot take the benefit of insurance to cover their own deliberate criminal acts (e.g. Gray v Barr [1971] 2QB 544; Hazeldine v Hosken [1933] 1KB 822; and Charlton v Fisher [2002] QB 578).
In some cases, particularly where the alleged abuser is unconvicted, it may be appropriate to forego any entitlement to pursue an individual for indemnity or contribution in order to secure their cooperation and assistance in the investigation and defence of the claim. Organisations and their insurers must also be mindful of the costs implications of pursuing abusers in circumstances where Qualified One Way Costs Shifting (QOCS) would not apply.
However, where the abuser has been convicted in relation to a claimant or others, and where investigations have established that the abuser (or their estate where the abuser is deceased) is likely to have sufficient assets to meet the claim (either in whole or in part) then there are clear legal, financial and moral arguments to justify pursuing such a course of action.
It follows that where organisations (and their insurers) are faced with abuse claims which are founded in vicarious liability for the acts of abuse of an employee, it is imperative to give early consideration to whether that individual or their estate should be pursued for an indemnity or contribution to meet the claim. This would involve, for example, undertaking asset searches and/or securing a statement of means from the abuser, verified by a statement of truth, setting out the nature and extent of their financial position.
In our experience, this has proved to be an effective approach. In many cases, our clients have been able to secure substantial contributions from abusers to meet civil claims pursued by their victims. It is only right and proper that an abuser who has the means to pay a claim arising from their own criminal acts should be required to do so.
For more information, please contact Ian Carroll
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