School found not vicariously liable for assault by work experience student

The Court of Appeal has confirmed that a secondary school is not vicariously liable for an assault committed against a pupil by a work experience student.

Background

It is important to be aware that this is a sensitive case arising from the abuse of the claimant who was a minor at the time, attending secondary school. The perpetrator was a college student (PXM) aged 18, and a former pupil of the school. In February 2014, PMX undertook a work experience placement (WEP) at the school for one week where he met the claimant. By early March 2014, the claimant and PXM had become ‘friends’ on Facebook and began exchanging messages which continued until September 2014. In August 2014, PXM committed assault and battery against the claimant. He was later arrested and pleaded guilty to various counts of sexual activity with a child.

The claimant sought damages for psychiatric injury, alleging that the defendant was vicariously liable for assault, battery and intentional infliction of harm.

Trial decision

The matter was heard in the High Court in August 2022 with the Judge finding that the defendant was not vicariously liable for the assault committed by PXM.

The Judge considered the three elements required to establish intentional infliction of harm following Rhodes v OPO [2015]:

• The conduct element, requiring words or conduct directed at the claimant for which there is no justification or excuse.
• The mental element, requiring an intention to cause at least severe mental or emotional distress.
• The consequence element requiring physical harm or recognised psychiatric illness.

The Judge found the consequence element was not present until the sexual activity took place in August. The conduct and mental elements were not present until many weeks after the WEP ended. As there was no evidence that PXM had the intention of exploiting or manipulating the claimant from the outset, the Judge found that intentional infliction of harm was made out but it did not occur within the WEP.

The Judge went on to consider the two stage test for vicarious liability as set out in The Catholic Child Welfare Society v Various Claimants [2012] and The Institute of the Brothers of Christian Schools and Others [2012]. Stage one was not established. PXM’s relationship with the defendant was not ‘akin to employment’.

Stage two, the ‘close connection’ test, was also not established. The role performed by PXM was very limited. He had no private access to the claimant and no caring or pastoral responsibility to the claimant. He was not placed in a position of authority. The most that could be said about the relationship was that it afforded PXM the opportunity to meet the claimant which was not sufficient to satisfy the test for vicarious liability.

Appeal

The appeal court unanimously decided that the defendant was not vicariously liable for the torts committed by PXM, but three of the four grounds of appeal were allowed.

The first two grounds allowed related to intentional infliction of harm. The trial Judge had failed to address relevant Facebook messages which supported that PXM was prepared to act on his belief that the claimant had a crush on him, by seeking to spend more time with her and attempting to find her class. This was significant because the Judge had attached weight to relevant documents in treating them as a starting point for findings of fact. She had also overlooked other evidence which was relevant to PXM’s state of mind during the WEP and there were powerful pointers that on balance, grooming began in the WEP. Ground one was made out. 

The mental and conduct elements were made out during the WEP. PXM engaged in unjustified conduct at the school; he had attempted to manipulate his schedule to find the claimant’s class and suggested she attend a club to spend time with her. It would have been obvious to him from the outset that grooming her would lead to nothing but misery for her and accordingly, ground two was made out.

Grounds three and four related to the two stage test for vicarious liability. Ground three was made out as it was found that PXM and the Defendant did have a relationship akin to that of an employer and employee, but the second stage of the test was not satisfied and ground four was dismissed. The Judge considered the case of Trustees of the Barry Congregation of Jehovah’s witnesses v BXB [2023] in which the ‘close connection’ test was clarified as being “whether the wrongful conduct was so closely connected with the acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting the course of the tortfeasor’s employment or quasi-employment”.

The appeal Judge agreed with the trial decision as to the limited nature of PXM’s role at the school and in particular:

• He had no caring or pastoral responsibility for the pupils, a factor which had been given considerable weight in previous cases.
• PXM’s access to the claimant at school was limited.
• He held no position of authority.
• It was not until PXM left the school that he began communicating with the claimant over Facebook and such communications were prohibited by the school.

Given the limited nature of PXM’s role during the WEP, the facts did not satisfy the close connection test and the grooming which led to the sexual offending was not sufficiently linked with the work carried out by PXM in the school. The appeal was dismissed.

Comment

This case provides helpful guidance on what is required to establish vicarious liability on behalf of an employer in the context of working with children. This case also highlights the importance of a completing a thorough analysis of the facts and risks of each case.

Whilst subject to further appeal to the Supreme Court, this decision is another example following the recent BXB decision, of the constriction of the boundaries of vicarious liability by the courts.  

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• Council successfully recovers a contribution from foster parents in failure to remove claim
• Court reaffirms principles of vicarious liability and their applicability to faith-based establishments