Vicarious Liability on the Move
A new Court of Appeal decision considers whether a Local Authority is vicariously liable for continuing sexual abuse of a pupil by a teacher, after the pupil had left school.
The Claimant sought compensation for psychiatric injury which he attributed to sexual abuse by his school teacher. The abuse began whilst the Claimant was at school between 1980 (when he was 13) and 1982.
The Local Authority appealed against the decision that it was vicariously liable for the abuse which continued after the Claimant left school.
The claim was issued 25 years after the limitation period for the final assault expired. The Court of Appeal upheld the Trial Judge’s decision to disapply the limitation period because insufficient prejudice was caused to the Local Authority by the delay, despite its significant length.
The fact that some abuse took place was incontrovertible, as the teacher had pleaded guilty to various counts of sexual assault on the Claimant in the Crown Court. Although the delay meant that some medical and educational records were missing, this did not impair the psychiatric experts’ opinions or the trial Judge’s conclusions.
The Court found that the Claimant had not consented to sexual activity which occurred after he reached the age of consent. The ongoing activity was a continuation of his submission to abuse, not consent. The submission was a result of the psychological coercion which had begun during the Claimant's education at school.
The Court considered the two-stage test for vicarious liability arising from the Supreme Court decisions in Various Claimants v Catholic Child Welfare Society and others  and Mohammed v WM Morrison Supermarkets plc .
The teacher was employed by the Local Authority throughout the relevant period, which all parties agreed satisfied the first stage of the test, namely whether the relationship between the teacher and the Authority could give rise to vicarious liability.
The second stage examines whether there was a sufficient connection between the employed position and the wrongful conduct to make it right for the employer to be held liable, and involves consideration of the principles of social justice.
The Claimant had been groomed by the teacher from the age of 13, creating a dependency on the teacher. Ongoing control and manipulation of the Claimant after he had left school was causatively linked to the ongoing, continuous and non-consensual sexual activity. The Local Authority continued to be vicariously liable.
Lord Justice McCombe identified that the law of vicarious liability has been on the move and is no longer limited to “the narrow concept” of an employer only being liable for actions occurring during the course of the employee’s employment.
The fact that the acts in issue might have been committed away from the workplace, or outside of the employee’s hours of duty, appears less relevant today, particularly in cases of abuse of trust.
This case involved liability for abuse of the pastoral relationship between teacher and pupil and is of particular concern for local authorities. However there are potential ramifications for any organisation with employees in a position of trust, such as in the social and healthcare setting. Such organisations can be vicariously liable to the injured party for ongoing abuse by an employee, during a period after the relationship of trust has ended.
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Bevan Brittan has experience of acting for local authorities, healthcare providers and commissioners in cases ranging from individual episodes of abuse to large-scale group actions. For further details please see our team sheet by clicking here.