On 18 July 2023, Mrs Justice Lambert handed down judgment in the appeal in DJ v Barnsley Metropolitan Borough Council & AG (DJ) which was heard in March and May 2023. Her judgment was delayed pending the outcome of Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [26.04.23] (BXB), the most recent and important case concerning vicarious liability. DJ concerned whether a local authority can be vicariously liable for the wrongdoing of foster carers who are in some way related to the claimant.
DJ had come to the attention of the defendant local authority in early 1974 following concerns of parental neglect. A number of short-term foster placements followed. In late December 1979, DJ met his maternal aunt and uncle (the G family) and at the beginning of 1980, he went to live with them at the age of nine. Social workers undertook home visits and fostering assessments involving extensive interviews. The G family considered formal registration as foster parents and applications were submitted. Mr G initially failed to declare that he had been charged with three offences of unlawful sexual intercourse which had occurred in 1966. When this information came to the attention of social workers, he said that it was so long ago that he considered it irrelevant. The social workers agreed that the three offences should not prevent him from looking after his nephew, although it may have prevented him from being approved to foster other children.
DJ was received into care in August 1980 and the G family became his foster parents. He underwent regular monitoring by social workers and the G family received boarding out payments. The case was closed in July 1998 at which time DJ wished to stay with the G family even though he could have had contact with his biological parents. There was no further voluntary support to be offered. He remained with the family until his late teens, during which time he was sexually abused by Mr G.
Trial at first instance
A preliminary issue hearing proceeded to determine whether or not the local authority could be vicariously liable for the abuse. It was common ground that in general, the relationship of a local authority and an ordinary, unrelated foster carer is sufficiently akin to the relationship of employment to justify “the imposition of vicarious liability” as per Armes v Nottinghamshire County Council  (Armes). However, the defendant’s case was that the G family was not in a similar relationship – the relationship was a family one. It was independent of children’s services and not a commercially based foster placement which would not have happened but for the family relationship.
At first instance, it was held that the relationship was not akin to employment and the action was struck out.
The appeal to the High Court focused on stage one of the vicarious liability test as set out by Lord Burrows in BXB, namely:
- Was the relationship akin to employment?
- In applying that test, the court should consider the features which are similar to or different from a contract of employment i.e whether there is any payment made and how integral to the organisation the work is, the extent of control over the tortfeasor etc.
- If the tortfeasor is a true independent contractor, there is no vicarious liability (Barclays Bank v Various Claimants ).
- Having applied the above, there is no need to go back to invoke the underlying policy rationale for the imposition of vicarious liability.
- It can then be useful to stand back and consider whether the outcome is just and consistent with the underlying policy; the employer or quasi employer who is taking the benefit of the activities carried on by a person integrated into the organisation should consider the risk of the wrong committed by that person in the course of those activities.
- There is no need to tailor the approach to deal with cases alleging sexual abuse as the necessary tailoring is already reflected in the modern tests.
The Supreme Court found in Armes that the local authority was vicariously liable for the torts of foster parents who were unrelated to the claimant because the relationship between the tortfeasor and the local authority was analogous to that of employer/employee. Further, the various policy factors justified the imposition of vicarious liability.
In this case, the appellant, DJ, asserted that the facts were not different here. He had not met the G family until he was about nine years old and the family had undergone rigorous assessment and monitoring. The respondents asserted that the G family was not recruited or selected by the local authority - they volunteered for the role when DJ’s family disintegrated.
Lambert J agreed with the recorder at first instance that it was necessary to consider the balance of the policy reasons underpinning the imposition of vicarious liability. As such, the judge considered the incidents referred to in Christian Brothers, and in particular, whether the G family’s care for the claimant was integral to the business of the defendant or whether it was sufficiently distinct from the activity of the defendant to avoid the imposition of vicarious liability.
It was the way in which the G family came to be involved in fostering the claimant that Lambert J found most compelling. She found that they were carrying out their own activity distinct from the statutory obligations of the local authority. They raised their nephew in the interest of the family – not the local authority. The fact that the claimant and the G family were strangers until December 1979 did not interfere with the purpose of the arrangement. Therefore, the defendant was not vicariously liable for the sexual abuse perpetrated by Mr G and the appeal was dismissed.
This is a helpful judgment which will be of interest to both local authorities and their insurers. We do see claims involving similar circumstances where children are fostered voluntarily by family members and then suffer abuse or neglect. The important point in this case is how and upon what basis the fostering arrangement was made.
This is another case that demonstrates the continuing constriction of the doctrine of vicarious liability.