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  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  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."