Deontological Dicta
| Published date | 01 March 2002 |
| DOI | http://doi.org/10.1111/1468-2230.00380 |
| Date | 01 March 2002 |
| Author | Douglas W. Vick |
stranger.
69
It recommended that organisations dealing with children, such as
religious orders, sports teams and schools, should have proper vetting procedures
for adults who work with them. It would seem that Lister will encourage such
practices by rendering such institutions liable to compensate victims of abuse.
Liability, as recognised by Scarman LJ in Rose vPlenty,
70
will be imposed for
reasons of public policy: to provide a remedy for victims unable to obtain
compensation from the perpetrator of the abuse.
71
By importing the Canadian test
of ‘close connection’ without its policy justifications, the House of Lords achieves
a ‘just’ result for the victim, but at the expense of uncertainty.
72
Lister offers little
comfort to employer defendants who find themselves liable by virtue of the nature
of services they provide and who do not even receive an adequate explanation as to
why they, in their view, are being penalised to benefit another. If the aim is
wholescale protection of vulnerable parties, then the adoption of loss-distribution
reasoning would at least clarify this and assist courts in deciding future cases.
Lister, combined with the recent House of Lords decision in Phelps vHillingdon
LBC,
73
leaves employers in fear of greatly increased liability without any clear
indication how far this will go. It is perhaps ironic that by compensating the victim
of sexual abuse by means of a vague test of ‘close connection’, their Lordships
have encouraged an increase in insurance in this area and thus, indirectly, the goal
of loss distribution. Open recognition of this fact would be welcomed.
Deontological Dicta
Douglas W. Vick*
Professor J.A.G. Griffith recently observed that constitutions ‘are shaped by the
working relationships between their principal institutions’, and that while these
institutions ‘may remain largely unchanged in their composition, if not their
membership, these relationships are continually shifting.’
1
The Human Rights Act
1998, which identifies most of the substantive provisions of the European
Convention on Human Rights as ‘Convention rights’ that must be ‘given effect’ in
domestic law,
2
will have a profound effect on the relationship between Parliament
69 D. Grubin, Sex offending against children: Understanding the risk, Police Research Series Paper 99
for the Home Office Policing and Reducing Crime Unit, Research, Development and Statistics
Directorate: <www.homeoffice.gov.uk/rds>
70 [1976] 1 WLR 141 at 147.
71 See G. Williams (1957) 20 MLR 220 at 232: ‘However distasteful the theory may be, we have to
admit that vicarious liability owes its explanation, if not its justification, to the search for a solvent
defendant.’
72 Such an approach is not new. Atiyah noted in 1978 that ‘there has been . .. a shift from principles to
pragmatism, a shift from the desire to lay down rules for future application to the desire to do justice
according to the particular circumstances of the case’: From principles to pragmatism (Oxford:
Clarendon Press, 1978) 10.
73 [2000] 3 WLR 776, where their Lordships confirmed that local authorities could be vicariously liable
for the negligence of teachers and, in the case itself, for the negligence of an educational psychologist.
* Department of Accounting, Finance and Law, University of Stirling. I would like to thank Gavin Little
and Philip Morris for their comments on previous drafts of this paper.
1 J. A. G. Griffith, ‘The Common Law and the Political Constitution’ (2001) 117 LQR 42, 42.
2 s 3(1).
March 2002] RvS of S for the Environment, Transport and the Regions ex p Alconbury
ßThe Modern Law Review Limited 2002 279
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