Another restriction on vicarious liability: school not liable for abuse by work experience student

The High Court recently handed down its Judgment in MXX v A Secondary School [2022] EWHC 2207(QB), finding that the school could not be vicariously liable for the abuse committed by a work experience student. Patrick Williams, Associate in the Keoghs abuse team, considers this judgment and its implications on organisations who engage with such individuals.

Background

The defendant is a co-educational secondary school providing education for children between the ages of 11 and 16. In December 2013, the claimant joined the school as a Year 8 pupil when she was aged 13.

Between 24 and 28 February 2014, a former pupil of the school (‘PXM’) undertook a Work Experience Placement (‘WEP’) at the school. He was 18 years old and hoping to qualify as a PE teacher. The claimant first met PXM during the period of the WEP and it was following this, in August 2014, that she was subjected to sexual assaults by PXM.

The claimant alleged the defendant was vicariously liable for the torts of assault and battery and intentional infliction of injury perpetrated upon her by PXM. The claimant relied upon the convictions of PXM on 2 November 2015 in regards to serious sexual offences perpetrated against her.

While it was admitted that the claimant had been the victim of serious sexual abuse, the defendant denied that it was vicariously liable.

Court’s findings

The Court identified the following key issues to be considered:

1.    What was the nature of the interaction between the claimant and PXM; when did it take place; and in what circumstances?

The judge found that on the basis of the contemporaneous evidence (which she attached greater weight to than the claimant’s account during the civil claim), PXM did not undertake any of his WEP in any of the claimant’s PE lessons. It was found that there had been a conversation between the claimant and PXM in regards to attending the badminton club after school. Nothing untoward occurred during this conversation. Further, this was the first interaction between the claimant and PXM, and the court was not satisfied that there was any evidence from which it could be reasonably inferred that PXM had any ulterior motive during this first interaction with the claimant. The judge found that PXM did assist the claimant to play badminton as that was the purpose of the club, although the claimant did not satisfy the judge that the interactions between the claimant and PXM at the badminton club amounted to grooming behaviour.

2.    Were the torts proved to have been committed by PXM against the claimant?

The judge was satisfied that the torts of assault and battery were committed against the claimant on 2 and 5 August 2014, and that it was also possible that they were committed on later occasions. However, in regards to the tort of intentional infliction of injury the judge found that the conduct and mental elements of the tort on the balance of probabilities were not present until many weeks after the WEP had ended.

3.    Was the defendant vicariously liable for any/all of those proven torts?

Finally, in regards to vicarious liability, the judge set out the two-stage test for the imposition of vicarious liability as set out in the judgment of Lord Phillips in The Catholic Child Welfare Society v Various Claimants (FC) and The Institute of the Brothers of the Christian Schools and others [2012] UKSC 56 at paragraph 21.

Stage One

In regards to stage one of vicarious liability, as PXM was neither an employee of the defendant nor an independent contractor, it was necessary to consider whether he was in a relationship with the defendant that was ‘akin to employment’.

The judge considered the relevant case law, Cox v Ministry of Justice [2016] UKSC 10, Mohamud v Wm Morrison Supermarkets PLC [2016] UKSC 12 and Barclays Bank PLC v Various Claimants [2020] UKSC 13.

In regards to stage one of vicarious liability, the judge concluded that this was not a relationship ‘akin to employment’ for the following reasons:

• It was PXM who had approached the school asking for the opportunity to spend one week as a WEP in the defendant’s school. He was, in effect, asking for a favour and that was how the defendant treated his request.
• PXM was aged only 18 and he was unqualified. The purpose of the WEP was for PXM to learn from the defendant’s teachers. It was an altruistic gesture by the school and it cannot have been intended that the defendant would derive benefit from the presence of PXM in any real sense, notwithstanding that PXM performed some minor ancillary tasks during the WEP.
• PXM was never given nor was it intended that he would have any responsibility for the teaching or other care of pupils.
• The very limited role PXM played in the school’s activities barely went beyond his own learning.
• The WEP was always understood to be for no more than one week. There was no real degree of integration into the school’s business.

While the judge did not consider this to be a doubtful case, she went on to consider the five incidents as set out by Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 [2013] 2 AC 1. Having considered the five incidents, the judge did not consider that they indicated that the relationship between PXM and the defendant was one which was ‘akin to employment’.

Stage Two

Although the judge had already concluded there was no vicarious liability on behalf of the defendant (given that she found that stage one had not been satisfied), she considered the second stage in regards to whether the abuse occurred closely connected to PXM’s duties on behalf of the school.

The judge considered that even if the first stage of vicarious liability had been established, the second stage of the test for vicarious liability was not satisfied. The judge found:

• The entirety of the wrongdoing occurred many weeks after PXM’s relationship with the defendant had ceased. That was fundamentally different to when abuse which begins when the abuser is in a relationship with a defendant and continues outside or beyond the scope of that relationship.
• PXM had no caring or pastoral responsibility in relation to the claimant or any other pupil. He did not even have any teaching responsibility. No aspect of the defendant’s function was delegated to him.
• Although the school required its pupils to treat PXM with respect, he was not placed in a position of authority over the pupils.
• The most that can be said about the relationship between the defendant and PXM was that it provided an opportunity for PXM to meet the claimant, which is not sufficient for a finding of vicarious liability. 

Accordingly, the claimant failed to establish that the defendant was vicariously liable for the assaults perpetrated against her by PXM and the claim was dismissed.

Comment

This is yet another example of a case against an organisation in regards to non-recent sexual abuse where vicarious liability was not established. The judgment follows on from and applied in its analysis the recent Court of Appeal and High Court authorities of DSN v Blackpool FC and TVZ & Ors v Manchester City FC in which Keoghs acted, which further restricted the scope of circumstances in which vicarious liability would apply to stages one and two.

While the position may have been different on stage two had it been proven that elements of grooming or abuse had taken place during the WEP, it remains that PXM was never in a relationship with the school giving rise to vicarious liability. As the Court found, shadowing or observing, while not incompatible with employment, is generally a precursor to the performance of a role within an employer’s organisation. It formed part of the preparation and/or training of an employer and neither side of the relationship expected that it would lead to more.

Accordingly, organisations who engage work experience students or other volunteers should consider the circumstances in which they engage with these individuals and the potential for vicarious liability to attach. While the position remains that merely providing the opportunity to commit abuse is insufficient for liability to follow, if an organisation provides greater responsibility to individuals beyond a role of, say, shadowing or observing, the risks will inevitably increase.