Vicarious liability – recent decisions in England and Wales

There has been much recent comment on the Supreme Court decisions in the Morrisons and Barclays cases. Two other recent judgments in abuse cases are also worthy of consideration. The cases as demonstrated below show that whilst the scope of various liability has increased over time, the issue is very much assessed on a case by case basis and still has its limits.

The case of EXE v The Governors of the Royal Naval School [2020] involved historic abuse dating back to 1990 alleged against the school’s kitchen porter (Hughes) who resigned from the school in July 1991. The school were unaware of Hughes’ criminal record which included two counts of sexual intercourse with a 15 year old girl.

During his time at the school he developed a relationship with the claimant who was 14 years old. Hughes and the claimant admitted they had feelings for one another and had sexual intercourse at Hughes’ flat at the school when the claimant was 14 years old. The claimant and Hughes continued their relationship after Hughes’ resignation. In August 1991 the claimant ran away from home with Hughes and they immediately rented a flat, where the claimant alleges Hughes violently raped her.

Hughes later pleaded guilty to unlawful sexual intercourse with a girl under 16.

It was found that limitation could not be extended under section 33 as the claimant had no reasonable explanation to obtain discretion. Further, the court used the contemporaneous police statement provided by the claimant at the time of the offence in deciding that consent was given.

Moving on to vicarious liability: the case demonstrates that an organisation cannot be held vicariously liable for simply employing a person. In the judgment it was highlighted that there is a need to consider the scope of the employee’s field of activities, as merely having an opportunity to commit an offence is not enough for vicarious liability.

In this instance, Hughes’ duties did not involve him having any direct contact with pupils, and whilst he may have seen pupils within the corridors of the school, this did not warrant a sufficient connection between the wrongful acts and his job as a kitchen porter and as such vicarious liability could not be established.

In the judgment of DSN v Blackpool Football Club Limited [2020], the court used the two part test established in Cox and Mohamud to determine whether the club would be vicariously liable for the actions of a volunteer.

The allegations were that the claimant was sexually abused by a convicted sex offender (the tortfeasor), who died in 2005, during a youth football trip to New Zealand in 1987.

In using the two part test, it was found that the club was unable to run an effective youth club without the tortfeasor and that he was “very much doing the work of the club”. More importantly, it was indicated that if the young football players were placed in the power of the tortfeasor, if he favoured them, a career at Blackpool FC may develop, and this is how he was able to abuse them.

Further, the judge held that the tortfeasor was “as dependent on Blackpool’s favour and on his integration into Blackpool FC as an employee would have been: he was working for them, and they could have fired him at any time.” 

Taking into consideration that the tortfeasor was an unpaid volunteer for the club, this case is an example of the widened principles of vicarious liability in looking at relationships differing from the traditional employee/employer relationship.

Nicole Clough

Nicole Clough, Paralegal, BLM

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