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Relationship between school and work experience student insufficient to give rise to vicarious liability

19 August 2022

Paul Donnelly and Samuel Dawber discuss the implications of the judgment handed down today by HHJ Wall in the case of MXX v A Secondary School [2022], in which they acted for the defendant. 

Read the judgment here: MXX v A SECONDARY SCHOOL

Summary 

The application of vicarious liability requires a synthesis of two stages. Stage 1 requires an examination of the relationship between the tortfeasor and the defendant, and stage 2 requires consideration of whether there is a sufficiently close connection between that relationship and the tort in question to make it fair, just, and reasonable to hold the defendant strictly (i.e. without fault) liable for it. After a string of Supreme Court cases between 2012 and 2020 the case law has over the past couple of years appeared relatively settled. Certainly, cases which turn on stage 1 of the test for vicarious liability are relatively rare.  

In this case, the claimant (MXX), a pupil at the defendant school, was sexually abused by an 18 year old former pupil (PXM) who had carried out a week's work experience at the school earlier in the year. He was subsequently convicted of a number of offences of sexual abuse. 

Her Honour Judge Carmel Wall, sitting as a High Court Judge, was tasked with determining whether the defendant was vicariously liable for any torts committed by the former pupil. She held that: 

  • There was no relationship between the abuser (PXM) and the defendant sufficient to satisfy stage 1. 
  • On stage 2, there was insufficient connection between PXM's abuse of the claimant and any relationship between PXM and the defendant to impose vicarious liability.  

It is important to remember, and the judge was keen to stress that "the claimant was undoubtedly the victim of appalling and criminal acts of sexual assault. No part of this judgment should be construed as minimising that fact. However, I am not satisfied that the defendant is vicariously liable for the torts committed against her. The claim must be dismissed." 

Facts

The claimant was a 13 year old girl when in December 2013, she moved to the defendant secondary school. She had transferred to the defendant school after experiencing bullying in her previous school. PXM was an 18 year old former pupil of the defendant school who was undertaking a college course to become a PE teacher. That course required PXM to obtain work experience and at his request, the defendant allowed him to undertake a one-week work experience placement, between 24 and 28 February 2014, effectively shadowing its PE teachers.  

The claimant said that PXM had taught her during a PE lesson and that he had also invited her to attend an after-school badminton class, which she attended on the last day of the placement, and at which she alleged PXM had paid her a lot of attention. After PXM's work experience placement ended, he became friends with the claimant (and other Year 8 students) on Facebook. PXM and the claimant exchanged messages and indecent images, and on 2 August 2014, they met in person when PXM sexually abused her. They met on at least one more occasion, where PXM perpetrated further sexual abuse. In September 2014, the abuse was discovered by the defendant, who reported it to the police. PXM was arrested and subsequently convicted of engaging in sexual activity with a child and sending indecent images to a child. 

The claimant said that she had suffered psychiatric harm as a result of the sexual abuse, which had affected her level of academic attainment. The alleged losses were not admitted by the defendant, but quantum subject to liability was agreed shortly before trial in the sum of £27,500. 

The issues in the case

The claimant brought a case against the defendant, alleging only that it was vicariously liable for torts committed by PXM. As the judge explained, "That is a test of strict liability. A defendant may be vicariously liable for the acts of another without fault. There is no allegation of fault made or pursued against the defendant." 

The key issues for the judge to decide were: 

  • What was the nature of the interaction between the claimant and PXM, when did it take place, and in what circumstances?
  • What are the torts proved to have been committed by PXM against the claimant? 
  • Is the defendant vicariously liable for any/all of those proven torts?  
The factual issues

To assess the first of those issues, the oral evidence involved the examination of several important factual issues. These would establish: 

  • The extent of the interaction between the claimant and PXM during the placement; 
  • The importance to the claimant of the badminton club session on the last day of the placement;  
  • The extent to which PXM had any status or authority during the placement that made an impact on the claimant; 
  • The extent to which PXM was aware of the claimant's pre-existing vulnerability; 
  • The timeline of the development of PMX's abusive 'relationship' with the claimant. 

There were differences between the claimant's evidence provided later in the proceedings and at trial, compared with the evidence recorded contemporaneously in the documentation. The claimant gave three reasons why her evidence had changed over time and why her evidence at trial was more reliable than the contemporaneous records: (1) she had often downplayed what PXM had done because she had not at that time considered PXM to have abused her, so she tried to protect him; (2) she was embarrassed about the strength of her feelings for PXM and did not want to admit to these feelings; (3) she had recently undergone therapy that had enabled her to talk about the abuse. 

Judicial approach to factual evidence on historic matters & factual findings 

The evidence given by the claimant related to events that had occurred eight years ago, which the judge noted is already a long time for anyone to remember back with accuracy. Further, the effect of the passage of time was exacerbated by the fact that in 2014 the claimant saw things as a child, whereas now she was looking back on them as an adult. The judge noted at paragraph 22 that: 

"Memories not only fade as time passes but can also become unreliable. There is a risk that a witness can become sure of something that is not in fact true or accurate."  

and at paragraph 26: 

"It is a common experience that an adult will analyse events from childhood through the lens of hindsight. There is a risk that when doing so, events will be given a significance that they did not in fact have at the time they occurred. That is a risk to which I have paid particular attention in this case, because of the reliance placed by the claimant on limited interactions with PXM during the WEP [Work Experience Placement] in February 2014." 

That led to the conclusion at paragraph 27 that:  

"The starting point for finding the facts therefore must be the contemporaneous documentary evidence created long before this litigation was contemplated." 

With that in mind, the judge made the following factual findings: 

  • PXM did not teach any lessons, but he did provide some limited help with lessons, always under supervision. 
  • PXM did not assist with any lessons in which the claimant was a student. 
  • PXM and the claimant had only two meaningful interactions during the placement, once when PXM invited the claimant to the badminton club and the second at the badminton club itself. 
  • Neither of these two interactions amounted to grooming behaviour. PXM did not have an ulterior motive at that time. Nothing untoward happened during the work placement. 
  • The claimant had not established that PXM was aware of her pre-existing vulnerability during the work placement. 
  • The claimant had not established that she was influenced by PXM having any status at the school arising from his role during the work experience. 
  • PXM and the claimant had connected on Facebook by 5 March 2014.
  • There was no significant messaging over Facebook, in terms of either content or frequency, before mid-April 2014, and it is unlikely that the messages contained any manipulative or exploitative content prior to mid-April. [The claimant had taken an overdose of co-codamol tablets in April 2014. Whilst this had no connection with the case, it was referenced as a staging post in the timeline]
  • The first indecent image was sent by PXM on 4 July 2014.
  • The first in-person meeting after the work experience placement was on 2 August 2014. 
What torts did PXM commit against the claimant?

Two torts were alleged to have been committed by PXM: 

  • Assault and battery
  • Intentional infliction of harm

There was no dispute that PXM committed acts of assault and battery at the time he sexually abused the claimant, and the judge was satisfied that these torts were committed on 2 and 5 August. The claimant had not relied on this tort to establish vicarious liability though, instead relying on the alleged earlier grooming. 

Given the period of time between the work experience placement and the assaults themselves, the claimant's case at trial was that it was PXM's grooming of the claimant that was closely connected to the relationship between PXM and the defendant, and that created a seamless link between the work experience placement in February 2014 and the assaults in August 2014 such as to give rise to vicarious liability.

On the question of whether the elements of the tort of intentional infliction of harm were established and if so, when, the factual findings about whether there had been grooming behaviour by PXM were key.

The judge identified the elements required for this tort, as restated by the Supreme Court in Rhodes v OPO [2015] UKSC 32, namely that the tort requires completion of (1) a conduct element; (2) the mental/intention element; and (3) a consequence element – i.e. harm/damage). She assessed these elements in the light of the factual findings she had already made and was satisfied that the claimant had discharged the burden of proving that this tort was committed against her by PXM. However, given the finding that PXM did not engage in any grooming behaviour during the placement, she found that the tort was complete at the time that sexual activity took place on 2 August and that neither the completed tort nor any element of it was committed during the placement. 

Vicarious Liability

Stage 1 – the relationship between a tortfeasor and a defendant

The judge found that the relationship between PXM and the defendant was not akin to employment, holding that PXM was not given any independent responsibility or pastoral duties, and rejecting claimant counsel's submissions that PXM's role was integral to the defendant's business. The judge found "all of the defendant’s witnesses to be straightforward, trying to assist the court. I accept their evidence, little of which was controversial" [paragraph 60]. Adopting that evidence, the judge made the following findings: 

  • "PXM had approached the defendant, asking for the opportunity to spend one week as a WEP [Work Experience Placement] in the defendant’s school. He was, in effect, asking for a favour and that was how the defendant treated his request." [paragraph 189] 
  • "The purpose of the WEP was for PXM to learn from the defendant’s teachers. When viewed from the defendant’s perspective it was an altruistic gesture. 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." [paragraph 191] 
  • "There is force in [defendant counsel's] observation that a student at PXM’s stage imposed a burden on the defendant rather than any benefit. To that end it is perhaps instructive that the defendant school no longer offers WEPs at all." [paragraph 193] 
  • "The position was very different from that in Cox v Ministry of Justice where the prison derived real and identifiable benefit from the work of the prisoners in its kitchen, notwithstanding that there was also a benefit to the prisoners that was different in kind." [paragraph 194] 
  • "… it would not be fair, just or reasonable to conclude that a WEP with the defendant of one week’s duration in these circumstances amounted to a relationship akin to employment." [paragraph 199] 

Notwithstanding the judge's conclusion that this was not a doubtful case, she also went on to consider [paragraphs 200 - 206] Lord Phillips' five “incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant”, set out in The Catholic Child Welfare Society & Ors v Various Claimants & The Institute of the Brothers of the Christian Schools & Ors [2012] UKSC 56 which fortified her conclusion that stage 1 of the test could not be made out. In case the judge was wrong about stage 1, she went on to consider stage 2 of the test for vicarious liability. 

Stage 2 – the connection linking the relationship between a defendant and the act/omission of the tortfeasor 

The judge held that the claimant also did not establish that the second stage of the vicarious liability test had been met – a close connection between the role/duties and the tort/wrongful conduct.  

She found that there was no wrongful conduct during the work experience placement, nor did PXM hold any ulterior motive during that time, nor for at least a number of weeks after the placement. She did not accept that PXM's role, or 'status' derived from that role, was a factor influencing the claimant at the time the torts were committed. At paragraph 243, the judge concludes:

"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. That is not sufficient for the second stage of the test."  

As the judge noted, this was a situation very different from the one in London Borough of Haringey v FZO [2020] EWCA Civ 180, where "the trial judge (whose decision was upheld) had concluded that assaults that occurred after the tortfeasor had left his employment were “a continuation of the behaviour that commenced while and because the first defendant was a teacher.” The later conduct was described as “indivisible” from what had occurred while the claimant had been a pupil at the school. The ending of the employment relationship had not in those circumstances severed the close connection necessary for vicarious liability" [paragraph 222] 

HHJ Carmel Wall went on in paragraph 236 to find that: 

"… the entirety of the wrongdoing occurred many weeks after PXM’s relationship with the defendant had ceased. That is a fundamentally different factual matrix from wrongful conduct that begins while the tortfeasor is in a relationship with a defendant and continues outside or beyond the scope of that relationship - whether out of hours or after the relationship has ended. Neither Counsel could identify any decision in which the second stage was found to be met in those circumstances. The wrongful conduct here was separated from any relationship that had subsisted in the past between the defendant and PXM by both time and location."

Conclusions

The claimant's case was premised on the basis that PXM was grooming the claimant during the work placement and had the intention of continuing an inappropriate and unjustifiable 'relationship' with her, thereby inflicting intentional harm on her after the work placement ended. The factual findings make that argument all but impossible to sustain. 

The case, however, does address some very important issues which often emerge in claims of this type. The first is how to deal with factual evidence on historic matters of fact, especially when considering the significance of certain events for the purpose of assessment of vicarious liability. On the claimant's factual evidence, the defendant did not contend that she was dishonest but believed her evidence to be unreliable. Her evidence had changed over time, and HHJ Carmel Wall accepted that greater weight should be placed on contemporaneous documents than on her evidence at trial. There was no reason to think that an account given for the first time at trial (via the "[analysing of] events from childhood through the lens of hindsight") would be more reliable than what appeared likely from consideration of contemporaneous documentary evidence.  

Further, the vicarious liability finding is important, especially on stage 1 of the test. Unlike in Cox, PXM was not integrated into the defendant's business, and the defendant derived little if any benefit from the work experience placement. There are many analogous situations in society where an individual may perform certain "minor ancillary tasks" which looked at in isolation – especially following Cox – could be said to create a connection of sorts to a third party such as to give rise to a debate over the imposition of vicarious liability. However, HHJ Carmel Wall's judgment re-emphasises and recognises that the mere creation of opportunity is insufficient to establish vicarious liability. The tortfeasor must be delegated functions essential to the business operation of the third party (i.e. which the third party derives real benefit from), for the relationship to be considered akin to employment and for there to be sufficient connection between that relationship and the tort in question to hold a third party vicariously liable for the tortious conduct of others. 

For further information, please contact Paul Donnelly or Samuel Dawber 

Further Reading