Poles Apart – a regressive step?

In a previous blog on 1/2/22 ‘”But she wasn’t resisting”….reversing the presumption of Innocence’, I highlighted the approach taken to consent in New South Wales in rape cases. It is interesting to see a difference of approach, with a stark contrast being adopted in Canada – it being determined in recent Appeals that ‘non-mental disorder automatism’ (otherwise extreme intoxication by drink or drugs) is a legitimate defence against charges relating to violent crimes. However intoxication which is short of automation is not a defence.

On 13 May the Supreme Court of Canada ruled self-induced extreme intoxication can be a defence, which overturns a law passed by Parliament in 1995 (supported by women’s advocacy groups). The court said to prohibit such a defence was unconstitutional and violates the country’s Charter of Rights and Freedoms – resulting in 2 acquittals last week with a retrial ordered in a third case.

Supreme Court, Justice Nicholas Kasirer said: ‘Its impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It should therefore be declared unconstitutional and of no force or effect.’

Until now, the Canadian courts have been split on the issue, while women’s advocacy groups have argued the law is needed to protect women and children. Indeed the issue was considered by the Standing Committee on Justice and Human Rights in 2002 when it was resolved the Criminal Code should not be amended outside of a comprehensive review, and it should be left to the courts to determine to ensure a principled and consistent approach to any such defence. Indeed a consultation paper was previously released in 1993 but the amendment to the White Paper at the time was not pursued. It was said sane automatism has been established in very few cases, and was a rare and unusual event, and given a decision of the Supreme Court in 1999 (R v Stone – the issue to be determined on the balance of probability) there was no pressing need for codification.

Written by Jagdeep Hayre, BLM (Jagdeep.Hayre@blmlaw.com)

Claims against social services – other routes to liability?

Claims are made against local authorities when they fail to remove children from their parents’ care (see HXA v Surrey CC) which looked at whether there is a duty of care in such situations.  Another strand of cases looks at what happens when things go wrong for children in care.  In the recent case of SKX v Manchester City Council (QBD, 31 March 2021) the High Court explored no-fault routes to liability: vicarious liability and non-delegable duty.

John Allen was the Chief Executive of the company running the Bryn Alyn Community, a group of privately-owned children’s homes in North Wales.  He was also a predatory paedophile.  Between 1976 and 1992 he abused many children living in the homes.  He was convicted of numerous sexual offences at 3 major trials and is currently serving a long sentence.  A major public inquiry unveiled numerous failings in children’s homes in North Wales – including Bryn Alyn.  After publication in February 2000 of the report ‘Lost in Care‘ former Bryn Alyn residents pursued claims for compensation.  These claims succeeded (setting a precedent for new approaches to limitation in historical abuse claims, but not all claimants were compensated. Insurers were entitled to avoid paying compensation to those claimants who had been abused by John Allen himself.  An exclusion clause for acts of abuse committed by ‘managerial employees’ (like John Allen) meant that insurers did not have to pay out under the insurance policy.

SKX was one such claimant: he was entitled to compensation, but received none due to the exclusion clause.  Many years later he brought a claim against Manchester City Council, the local authority which had placed him at Bryn Alyn.  In February 2021 the court considered whether his claim could proceed by looking at 3 questions.

  • Was Manchester City Council vicariously liable for the actions of John Allen?

The court found that the council was not vicariously liable.  The court considered the line of authorities from the Christian Brothers [2013] case to Barclays Bank [2020], via Cox v Ministry of Justice [2016] and Armes v Nottinghamshire County Council [2017]. The court found that John Allen was part of the company’s independent business. There was a genuine arms-length relationship of independent contractor between the company and the local authorities that placed children in the Bryn Alyn homes.  John Allen was not in a relationship akin to employment with the local authorities and it would not be fair, just or reasonable to impose vicarious liability for John Allen’s actions.

  • Did Manchester City Council owe a non-delegable duty of care to the claimant?

The court found that this was not a case of non-delegable duty. The concept of non-delegable duty is based on no fault and applies only in rare cases.  The five criteria are set out in Woodland v Swimming Teachers Association [2013].  When applied in Armes [2017] – a case which considered whether local authorities owed a non-delegable duty for the actions of foster carers – the Supreme Court found that there was no non-delegable duty.  The same reasoning applied here.  The question turned on the obligation created by the statutory provision (section 21(1) of the Child Care Act 1980): was it a duty to provide the children with day-to-day care, or only to arrange and pay for it?  The answer is it is a duty to arrange and pay for it – which was duly discharged by the council.    

  • Should the court exercise its discretion to extend time in favour of SKX?

The court decided to reach a conclusion on limitation in case the matter was overturned on appeal.  The court found that it was appropriate to extend time to bring the claim because the cogency of the evidence had not been impaired. Manchester City Council was not disadvantaged by the delay in issuing proceedings.  Furthermore there were good reasons for the delay, even if it was lengthy. 

This case shows the numerous recent legal developments in this area, and the unpredictable nature of such claims for claimants, as well as defendants and their insurers.

Written by Geneviève Rich at BLM genevieve.rich@blmlaw.com

Barclays Bank not vicariously liable for independently contracted Doctor – Supreme Court decision

The long awaited decision in Barclays Bank’s appeal to the Supreme Court was handed down on 1 April 2020. Barclays Bank was appealing the decisions made in the first instance and in the Court of Appeal which held them vicariously liable for the actions of an independently contracted doctor.

Barclays Bank contracted Dr Gordon Bates to carry out pre-employment medical assessments during the years 1968 and 1984 for prospective employees of the bank. These assessments were carried out unchaperoned in a consulting room in Dr Bates’ home.

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Various Claimants v Barclays Bank PLC in the Court of Appeal – confirmation of incursion of the defence of the Independent Contractor

The Court of Appeal has unanimously endorsed the approach taken at first instance in finding Barclays Bank (‘the Bank’) vicariously liable for the sexual assaults of a doctor retained to conduct pre-employment medical examinations of prospective employees.   The Bank’s defence that the doctor was an independent contractor was once again rejected.   Continue reading

Vicarious Liability is on the move – again!

The long awaited decision in Natasha Armes (NA) v Nottinghamshire County Council [18.10.2017] UKSC  was handed down today in the Supreme Court by Lord Reed.

The court rejected an argument that the local authority had a non-delegable duty of care but decided (4:1) for the claimant /appellant, Natasha Armes, that the local authority is vicariously liable for physical and sexual abuse suffered by her whilst in foster care and perpetrated by foster carers.

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Sexual abuse and foster care

The issue of vicarious liability for foster parents in cases where there have been allegations of sexual abuse remains a fertile ground for litigation with another judgment handed down this week, whilst the Supreme Court is likely to hear the appeal in NA in early 2017.

In VN & SN v London Borough of Brent, VK & AK [2016] EWHC 936 (QB). the claimants alleged that they were physically, sexually and emotionally abused by their foster carers.

It was contended on behalf of the claimants that the defendant local authority was:

  1. Negligent in its approval and supervision of the foster carers and placement of the claimants; and
  2. Strictly liable on the basis of vicarious liability and a non delegable duty.

Sir Robert Nelson found that the claimants had not established their allegations of abuse.  However in obiter comments he noted that had abuse been established he would have been bound by the NA decision and thus have rejected the claimants’ arguments on both vicarious liability and non delegable duty. He considered that the claimants attempt to distinguish their claim from that in NA did not succeed because “the Children Act 1989 and subsequent regulations did not affect the heart of the decision in NA.”

It is clear that vulnerable children when placed in foster care should be safe and any abusive behaviour can only be condemned. However extending vicarious liability or the doctrine of a non-delegable duty to cover foster parents seems to be an extension too far because of the wider implications that would have for the ability of foster parents to provide a family environment to the children in their care. It is clear however that this will continue to be a subject for consideration by the courts and in due course possibly by the IICSA.


Amy Clarke, associate