In general terms a tort is a civil wrong that causes a person to suffer loss or harm. As a result, the person who commits the tortious act (in abuse cases, the perpetrator of the alleged abuse) has a legal liability to the claimant. It follows that a victim of abuse has a direct cause of action against the perpetrator of that abuse.
However, alleged abusers often do not have the funds to compensate their victims or if they do, recovery can be problematic as their funds may be tied up in property ownership or other assets. As a result, where the abuse has occurred in the context of the abuser’s employment, victims of abuse instead look to the alleged abuser’s employer (or their insurers) for compensation, relying on the now well-established doctrine of vicarious liability. This is because the alleged abuser’s employers often have insurance or the funds to compensate the victim, without any of the complications mentioned above.
Section 1(1) of the Civil Liability (Contribution) Act 1978 (the 1978 Act) states that: “any person liable in respect of any damage suffered by another person may recover a contribution from any other person liable in respect of the same damage”. Therefore, in circumstances where an employer has compensated a victim of abuse for the tortious activity of one of its employees, the employer has a statutory right pursuant to this act to seek an indemnity and/or contribution from that employee. Significantly, in order to do so, the employer must prove that the party it intends to recover from is liable and that their liability is for the same damage as the employer.
In circumstances where there has been a finding of guilt or liability on the part of the abuser, such as a finding that the abuse had taken place, this liability would be relatively straightforward for the employer to establish and any decision to commence contribution proceedings against the employee would likely come down to whether there was a belief that the abuser had the means to compensate.
However, this issue is not as straightforward where an employer has either taken a commercial decision to settle a victim’s claim without a finding of fact or has purported to make admissions itself without the agreement of the primary tortfeasor.
The challenges and risks associated with seeking a full recovery against an alleged abuser was highlighted in the recent decision in the High Court in SS v Essex County Council & Ors [2023] EWHC 417 (KB).
This case involved a Part 20 claim brought by the local authority against the two alleged abusers, FF and FM, who between 1981 and 1998 were the foster parents of SS and later her carers until she was removed from their home in 2009. Essex CC sought an indemnity or a contribution from FF and FM in respect of compensation it had paid to SS.
Within the principal claim, SS alleged that she had been physically and sexually abused, starved, neglected and falsely imprisoned by FF and FM. Essex CC had admitted negligence in 2014 and FF and FM were eventually joined as Part 20 defendants in 2021 following the authority of Armes v Nottinghamshire County Council [2017] UKSC 60 which established that local authorities could be held vicariously liable for the tortious activity of foster parents. Essex CC proceeded to settle the main action and the court approved a settlement of £325,000 plus costs of £200,000 in SS’s favour in October 2022.
Essex CC continued with the Part 20 claim and argued that FF and FM were responsible “for the same damage” and thus liable under the 1978 Act. However, the problem facing Essex CC in terms of securing a recovery from FF and FM was that they both denied any abuse or neglect at all. There were no relevant convictions for the abuse and given Essex CC’s admissions, there had been no judicial finding as to their liability. Further, it was common ground that some of the matters in SS’s particulars of claim were incapable of being proved. In particular, Essex CC did not seek to prove that SS was sexually abused when she was in foster care, which was a significant part of the claim brought by SS and would have undoubtedly played a significant part in Essex CC’s valuation of her claim.
Whilst the judge, Matthew Burt KC, sitting as a Deputy High Court judge, held that FF and FM were responsible for the neglect and malnutrition of SS for a period of 18 months and that they were liable to Essex CC in respect of that liability, he was not persuaded that they had either emotionally or physically abused SS in the way alleged. He went on to value FF and FM’s liability at just £14,000, some £311,000 less than Essex CC had paid to SS. He also ordered that a contribution of £10,000 should be made by FF and FM towards the costs paid to SS. Accordingly, in total, Essex CC recovered £24,000 or 4.5% of the £525,000 paid to SS.
In terms of Essex CC’s costs of seeking a recovery against FF and FM, Matthew Burt KC acknowledged that Essex CC had recovered some damages and were thus a “successful party”. However, the judge commented that Essex CC had not succeeded on a number of the key issues, including an argument that it did not have to prove liability and its failure to establish sexual and/or physical assault. Further, the damages recovered were “very significantly” lower than that which Essex CC had sought. Accordingly, he concluded that Essex CC were entitled to recover 33% of its costs of bringing a claim against FF and FM.
This judgment demonstrates the challenges faced by organisations and insurers when attempting to seek a recovery from alleged abusers, especially where there are no relevant convictions and/or where there has been no civil finding of fact in respect of the claimant’s allegations of abuse. While there are often genuine and beneficial reasons for making admissions within the course of proceedings or for attempting to compromise a claim without an admission of liability, consideration should always be given as to how this will impact upon any possible recovery claim. In particular, where there has been no finding of fact, it will be extremely difficult, if not impossible, to establish liability for the purposes of recovery proceedings without the evidence of the claimant, who is unlikely to want to participate in such proceedings, not only as they have already been compensated, but also because they are unlikely to want to have to face the trauma of giving evidence about the abuse they have suffered. Whilst means to compensate is also an important factor for organisations and insurers when considering a possible recovery against an alleged abuser, this case demonstrates that it is not the only factor that needs to be considered.
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