Vicarious liability for abuse

MXX v A Secondary School [2023] EWCA Civ 996

Can a school be vicariously liable for abuse perpetrated against a pupil by an adult on work experience? The Court of Appeal addressed this question in the above case and, unusually, overturned some of the findings of fact of the trial judge. 

The claimant was a 13-year-old pupil at the defendant school. She was sexually abused by PXM, an 18-year-old former pupil of the defendant who was undertaking a week-long work experience placement (WEP). The sexual abuse occurred subsequent to the week during which PXM was taking part in the WEP.  

The trial judge had found that PXM had committed the tort of intentional infliction of harm. She identified three elements of the tort: a) the conduct element requiring words or conduct directed at the claimant for which there was no justification or excuse, otherwise known as ‘grooming’; b) the mental element requiring an intention to cause at least severe mental or emotional distress; and c) the consequence element requiring physical harm or recognised psychiatric illness.

The trial judge had said that the approach taken by the courts when considering cases of grooming behaviour was to consider the entirety of that conduct rather than to separate it from the sexual abuse that caused the injury.

The trial judge had held that the first element of the tort, the grooming behaviour by PXM, had not taken place during the week of the WEP. Instead, the tort of intentional infliction of harm had been completed at the time that sexual activity actually took place. The consequence element was present no earlier than the time at which that sexual activity took place. The claimant then suffered a recognised psychiatric illness as a result of PXM’s abuse of her. Therefore, neither the completed tort nor any element of it was committed during the WEP.

In relation to vicarious liability, the trial judge had identified the two-stage test for the imposition of vicarious liability and had cited a number of authorities. Stage one of the test asked the question: was PXM in a relationship with the school that was akin to that which existed between an employer and employee? Stage two put the question: was there a sufficiently close connection between the relationship between PXM and the school and the wrongdoing perpetrated against the claimant such that the wrongful conduct could fairly and properly be regarded as done by PXM while acting in the ordinary course of the school’s business or the school’s employment? The trial judge answered both questions in the negative and dismissed the claim.

Overlooked evidence

Davies LJ gave the unanimous decision of the Court of Appeal. Normally, the appellate court would not interfere with a trial judge’s findings of fact. However in this case, she believed that the trial judge had overlooked evidence, or aspects of the evidence, which were at the core of the claimant’s case and which illustrated what took place during the WEP. Looking at the evidence, Davies LJ was unable to agree with the trial judge that grooming behaviour by PXM did not take place during the WEP. The evidence showed that the conduct and mental elements of the tort of intentional infliction of injury were made out during PXM’s placement at the school. Therefore, those findings by the trial judge would be set aside.

The next issue was the stage one test for vicarious liability – namely whether the trial judge was wrong to find that the relationship between the school and PXM was not akin to employment. Davies LJ considered the caselaw, including the five policy reasons which made it fair, just and reasonable to impose vicarious liability on the employer.

PXM was at the school to experience the work of a teacher which PXM did with the school’s pupils. It might be the case that the school treated PXM’s request for work experience as a favour but the authorities indicated that there did not need to be an alignment between the objectives of the school and the employee. Moreover, PXM was given a fair degree of responsibility and the tasks that he carried out were for the school’s benefit. The school’s requirement that PXM should understand and accept its safeguarding policy demonstrated not only how the school was regulating its relationship with PXM, but also how PXM was treated in the same way as its full-time employees. Davies LJ said that she viewed acceptance of the policy as a factor pointing towards a relationship that was being regulated in a way ‘akin to employment’.

Accordingly, Davies LJ would conclude that the trial judge was wrong to find that the relationship between the defendant and PXM was not akin to employment. Stage one of the test for vicarious liability was made out.

In relation to stage two, the ‘close connection’ test, the trial judge had found that PXM had no caring or pastoral responsibilities in relation to the claimant. He was never placed in a position of authority over the school’s pupils. Davies LJ would agree with the assessment of the trial judge as to the limited nature of PXM’s role at the school. It was true that he had no caring or pastoral responsibility for the pupils, a factor to which considerable weight had been given in previous reported cases. PXM’s access to the claimant at school was limited as he was, or should have been, kept under close supervision at all times. Given the limited nature of PXM’s role during the course of his one-week WEP, the facts did not begin to satisfy the requirements of the close connection test. The grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work such that it would be fair and just to hold the school vicariously liable for the acts of PXM.

Accordingly the appeal would be dismissed.

Malcolm Johnson is legal director at Lime Solicitors, London