Court of Appeal dismisses appeal in abuse claim: MXX

The Court of Appeal has determined that a school was not vicariously liable for the torts of an individual undertaking a work experience placement there.

Patrick Williams, Associate in the specialist abuse team at Keoghs, considers the judgment.

Background

The defendant is a co-educational secondary school 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 regard to serious sexual offences perpetrated against her.

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

The matter proceeded to trial before HHJ Carmel Wall in July 2022 who found in the defendant’s favour on both aspects of the two-stage test for vicarious liability. Firstly, the relationship between PXM and the school was not ‘akin to employment’ and secondly, the actions of PXM had not occurred in close connection to his duties on behalf of the school.

Grounds of Appeal

The claimant was granted permission to appeal on four grounds, two of which related specifically to vicarious liability:

• The trial judge was wrong to find that the relationship between the defendant and PXM was not ‘akin to employment’ (i.e. Stage 1).
•  The trial judge was wrong to find that PXM’s torts were not sufficiently closely connected with his relationship with the defendant so as to give rise to vicarious liability (i.e. Stage 2).

The claimant was additionally granted permission to appeal on two other grounds relating to the period in which the entirety of the wrongdoing occurred and the finding that the conduct and mental elements of the tort of intentional infliction of injury were not made out until after the end of PXM’s placement.

Judgment of the Court of Appeal

Stage 1

The Court of Appeal allowed the appeal on Stage 1, finding that there was in fact a relationship ‘akin to employment’ between PXM and the school. While the Court of Appeal accepted that the trial judge had correctly set out the law, it took issue with her factual findings concerning the relationship between PXM and the school. The important evidential features that indicated the relationship was ‘akin to employment’, included the following:

• PXM was given responsibility for carrying out some of the work of the PE department which was part of the National Curriculum and a part of the business of the school.
• The tasks carried out by PXM were for the benefit of the defendant as they allowed its staff to spend time on other tasks or with other pupils. These tasks were also for the benefit of the pupils.
• WEPs provide generic benefits to organisations by encouraging suitable people to enter the workplace in due course and, thereby, enabling organisations to recruit staff when necessary.
• PXM was supervised by the school’s staff at all times and closely directed in any activity that he undertook with a pupil, demonstrating that he was subject to the school’s close direction and control.
• The school required that PXM should understand and accept its safeguarding policy, and PXM accepted the policy.

The Court of Appeal did not accept that reference to PXM’s role as “shadowing or observing” was a fair reflection of what he did during the course of the WEP. Further, the court indicated that such a role, which is akin to an individual undergoing training, is not inconsistent with status as an employee or being akin to an employee.

Stage 2

The Court of Appeal disagreed with the trial judge’s conclusions that the entirety of the wrongdoing occurred many weeks after PXM’s relationship with the defendant had ceased, and her finding that the conduct and mental elements of the tort of intentional infliction of injury were not made out until after the end of PXM’s placement at the school. Accordingly, the Court of Appeal approached Stage 2 on the basis that the grooming started when PXM was at the school, and that his role at the school was ‘akin to employment’.

However, the Court of Appeal found that the Stage 2 close connection test was not satisfied for the following reasons:

• PXM had no caring or pastoral responsibility for the pupils, a factor to which considerable weight has been given in previous cases.
• PXM’s access to the claimant at school was limited because he was, or should have been, kept under close supervision at all times.
• PXM held no position of authority over the pupils in the school.
• It was not until PXM left the school that any communication took place on Facebook and such communication was specifically prohibited by the school.

Given the limited nature of PXM’s role during the course of one week, the facts did not begin to satisfy the requirements of the close connection test. Further, the grooming that led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during the WEP such that it would be fair and just to hold the defendant vicariously liable for his acts.

Commentary

The Court of Appeal’s decision represents a thorough application of the relevant case law and provides further clarification and restrictions regarding Stage 2 of the test for vicarious liability.

This case effectively relates to the extent to which an organisation can continue to be vicariously liable for any torts that are committed by a work experience student after any “employment” relationship has ended. This decision follows WM Morrisons v Various Claimants [2020] UKSC 12, which addressed the question of what constituted “an unbroken sequence of events” or “a seamless episode” and found that:

1. A temporal or causal connection alone does not satisfy the close connection test; and
2. It was highly material whether the abuser was acting on his employer’s business or for purely personal reasons.

However, the Court of Appeal in London Borough of Haringey v FZO [2020] EWCA Civ 180, which predates the above, found the defendant to be vicariously liable for abuse committed by a teacher on a pupil, even long after the pupil had left the school. While the difference is that the abuser was a teacher rather than a work-experience student, it will be interesting to see how the court deals with this in the future and further clarification might, therefore, be required.

While this decision will be a welcome reminder to schools and other organisations who engage work experience students or other volunteers, it is imperative that they consider the circumstances in which they engage with these individuals and the potential for vicarious liability to attach.

The position remains that merely providing the opportunity to commit abuse is insufficient for liability to follow, but where an organisation provides greater responsibility to work experience students or bestows greater authority upon them, then the potential risks of doing so must be considered, as this will inevitably increase the risk of liability attaching to that organisation.

Author:

Patrick Williams, Associate in the specialist abuse team at Keoghs.

Email: PatrickWilliams@keoghs.co.uk