In May 2021 the High Court (Mr Justice Fordham) handed down judgment in this non-recent sexual abuse claim, finding for the claimant on all issues including limitation and vicarious liability.
Keoghs Associate Christopher Wilson and assistant Hannah Kirkman consider the decision and the potential wider implications for abuse cases.
It was not the defendant’s case that the claimant consented to the assaults and the parties had agreed prior to the trial that if the claimant succeeded with her claim on the basis that the defendant was vicariously liable for one or more incidents of sexual intercourse, then an award of £45,000 would be payable to the claimant.
The claim was brought more than 17 years out of time and more than 20 years after the alleged events of 1996–97. The defendant made submissions that the claimant’s evidence was so vague, uncertain, unclear and unreliable due to the lapse of time that it would not be equitable to disapply the limitation period having regard to the balance of prejudice.
However, Fordham J held that the defendant was not prejudiced by allowing the action to proceed: Mr Li gave evidence at the trial and the claimant gave a reliable account. Further, the issues in the case were narrow, consent was not relevant, and the court had the advantage of contemporaneous documentation elicited by Greater Manchester Police relating to the criminal investigation of Mr Li. Fordham J, therefore, considered it appropriate to exercise his section 33 discretion.
The claimant alleged that Mr Li made the suggestion for her to move to CSM with him and was his sole pupil moving to the defendant school from YMS. She also alleged that Mr Li made her feel special and that they had a close relationship which included her being able to confide in Mr Li. In contrast, Mr Li gave evidence that the claimant was “just another student” when she transferred from YMS to CSM and that the idea to transfer schools came from the claimant and her parents. Further, Mr Li denied the sexual assaults as alleged by the claimant.
In his judgment, Fordham J held that the claimant was a reliable, honest witness and, therefore, found in her favour on the factual issue. Fordham J did not find Mr Li to give an honest, truthful or reliable account of the key aspects of the case and, in fact, found him to be evasive on numerous occasions. Fordham J went even further to find that Mr Li had acted opportunistically in the shadowy area between consent and submission, within the context of having the upper hand in the special and trusted relationship of principal instrumental teacher.
Vicarious Liability – stage 1
Mr Li was employed by CSM as a music teacher during the relevant period and, therefore, stage 1 of the vicarious liability test, namely whether the tortfeasor was employed by or in a position akin to employment with the defendant, was admitted. The defendant also admitted vicarious liability for the assaults that occurred at the school in the music room.
Vicarious Liability – stage 2
However, in respect of the assaults that occurred off the school’s premises, stage 2 of the vicarious liability test (namely whether the connection that linked the employment relationship with Mr Li’s conduct was such as to establish liability on the defendant’s part) was in dispute.
Despite the fact that the claimant and Mr Li met and knew each other at YMS for three years prior to their association with CSM, and that the majority of the abuse occurred in the context of Mr Li’s position as her guardian (and, therefore, off school premises and out of school hours), Fordham J still found that there was compelling evidence for CSM to be held liable for Mr Li’s conduct.
In reaching this conclusion, Fordham J drew on the principle of dual vicarious liability laid out by the Supreme Court in Catholic Child Welfare Society v Various Claimant (FC) and The Institute of the Brothers of the Christian Schools and others  UKSC 56. Thus the separate guardianship arrangement (which had been made with the claimant’s parents) was not sufficient to exclude liability on the part of CSM.
Furthermore, Fordham J relied heavily on the principles outlined in A v Hoare  EWCA Civ 395 and FZO v Haringey London Borough Council  EWCA Civ 180 – notably that where the “control” and “manipulation” began at the school, and as the relevant wrongdoing was initiated in the context of the teacher’s duties, it mattered not that the relevant wrongdoing continued outside of those duties (Fordham J compared it to the case of FZO where the abuse continued after FZO had left school until he moved to Australia aged 21).
Thus, Fordham J held that the sexual assaults of the claimant in Mr Li’s car and flat, while acting as host under the guardianship arrangement with the claimant’s parents, flowed directly from actions of control and manipulation by Mr Li at CSM and in the teacher-pupil setting. Therefore, CSM was held vicariously liable for all of the sexual assaults.
In the context of the court’s recent approach to limitation in historic sexual abuse claims, it is not a surprise that the court exercised its section 33 discretion and allowed the claim to proceed: the tortfeasor was alive and was able to give evidence and the events occurred relatively recently when compared to the vast majority of historic sexual abuse claims that the courts are required to consider. Any prejudice caused by the claimant’s delay was considered to have been minimal and, therefore, the real issue in this case related to stage 2 of the vicarious liability test.
However, whilst it is undoubtedly a sensitive issue and should only be raised in exceptional circumstances, it remains to be seen whether the court would have reached the same conclusion on limitation had the defendant also chosen to rely on the potential defence of consent. In this regard, the case can be compared to the High Court’s judgment in EXE v The Governors of the Royal Naval School  EWHC596; ELR 421 where the court refused to exercise its discretion on the basis that there could not be a fair trial on the issue of consent (in particular), as the cogency of the claimant’s evidence on the issue had deteriorated significantly as a result of her delay in bringing the claim.
At first glance, Fordham J’s judgment appears to sound as a ringing endorsement of the Court of Appeal’s judgment in FZO, namely that a defendant school will be vicariously liable for the assaults of one of its teachers in respect of assaults said to have occurred in the context of a teacher’s duties or his pastoral responsibilities, even where the assaults took place away from the school’s premises or after the pupil has left the school. However, a closer inspection of the two cases reveals a number of problems that will likely need to be addressed by the courts in the future.
In FZO, the Court of Appeal held that the defendant school was vicariously liable not only for the abuse of one of its teachers that occurred whilst the claimant was a pupil at the school, but also for abuse that occurred during the five years after the claimant had left the school. The Court of Appeal concluded that a “position of trust” had been created and there was “control and manipulation” or “grooming” of the claimant by the abuser which began during the period for which the school was vicariously liable for Adams (i.e. during Adams’ employment). Therefore, as the “control and manipulation” (grooming) “continued to be operative”’ upon the claimant after he left the school, the school was held to be vicariously liable for these assaults.
However, the Court of Appeal chose not to define ‘grooming’ or explore what was required to break this state of continued ‘control and manipulation’. This was an important oversight and creates a number of problems for schools. For example, would the school have continued to be vicariously liable for the teacher’s assaults indefinitely had the relationship not ended naturally five years after the claimant left the school? Are schools liable for all and any abuse that takes place after an abusive relationship has commenced, provided that the relationship began during the period for which the school was vicariously liable? It is also not clear whether the school would have been liable had the assaults taken place solely after the claimant had left the school? Unfortunately, Fordham J’s judgment offers no further guidance in respect of these unanswered questions.
Whilst it remains to be seen whether CSM appeals this judgment, it is clear that there are likely to be further issues to be addressed on this point in the future – particularly in view of the recent publicity about the extent of abuse occurring in schools.
Chris Wilson and Hannah Kirkman
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