The Court of Appeal was asked to determine whether the relationship between the abuser and the school was sufficiently akin to employment to be capable of giving rise to vicarious liability and, if it was, whether the abuse was sufficiently closely connected to the duties delegated to the abuser by the school. Paul Donnelly and Samuel Dawber acted for the defendant Secondary School and discuss the judgment and its implications.
The facts
MXX was a 13 year-old pupil at the Secondary School. PXM was a former pupil of the Secondary School who was attending a college course to train as a PE teacher. In February 2014, PXM undertook a one week work experience placement (WEP) at the school in its PE department. During the WEP he met MXX, but did not teach any of her classes. PXM invited MXX to attend an afterschool badminton club at the school taking place on the final day of his WEP. A week following the WEP he connected with MXX on Facebook. It was unclear what messages were exchanged between them between then and July 2014, as MXX had deleted the messages on PXM's instigation. Messages were available from July onwards, by when the messages were overtly sexual. In August 2014, PXM sexually abused MXX. PXM was convicted of multiple offences against MXX.
In 2020, MXX issued a civil claim in the High Court against the Secondary School claiming compensation for psychiatric damage and consequential losses. MXX did not allege any fault on the part of the school, but claimed that it was vicariously liable for PXM's abuse.
At trial on 6 and 7 July 2022, HHJ Wall, sitting as a deputy in the High Court, dismissed the claim.
The first instance decision
Our previous article discussing the first instance decision can be found here
HHJ Wall's findings of fact that are material to the appeal were:
i. PXM did not groom MXX while he was on the WEP. PXM did not develop an ulterior motive towards MXX until weeks after the WEP had ended.
ii. PXM committed the tort of intentional infliction of harm against MXX, but not while he was on the WEP. He did not have an intention to harm MXX during the WEP and did not commit any conduct during the WEP capable of giving rise to the tort.
iii. PXM was not employed by the school and was not in a relationship akin to employment. He performed only minor, ancillary duties for the school during his WEP, from which the school derived no benefit, and he was not sufficiently integrated into the school's organisation.
iv. The abuse of MXX was not sufficiently closely connected to PXM's role at the school. The wrongful acts had all occurred after the WEP and were not inextricably linked to the WEP. The WEP offered PXM the opportunity to meet MXX, but this was insufficient to establish a close connection between the WEP and the subsequent abuse.
The grounds of appeal
The claimant appealed on four grounds, challenging each of HHJ Wall's findings as set out above.
The first two grounds challenged HHJ Wall's factual determinations. The claimant contended that HHJ Wall had made material errors of fact, failing to consider one specific Facebook message in her judgment in which PXM and MXX discussed their first meeting at the school during the WEP. The claimant contended that this evidence demonstrated that PXM knew at the time of the WEP that MXX was attracted to him and had acted upon it, thus demonstrating that he had an ulterior motive during the WEP. The claimant further contended that this amounted to grooming and demonstrated that both the mental and conduct elements of the tort of intentional infliction of harm were present at the time of the WEP.
The claimant also appealed on both stages of the vicarious liability test, contending that PXM had performed duties akin to a teaching assistant during PE classes and the subsequent abuse of MXX was a continuous chain of events commencing with his grooming of MXX during the WEP and concluding with his abuse of MXX.
The Court of Appeal decision
The appeal was heard before a three-judge bench in the Court of Appeal, consisting of Lady Justice Nicola Davies, Lord Justice Peter Jackson and Lord Justice Lewison. The leading judgment was delivered by Davies LJ on 25 August 2023 and was unanimously agreed.
The Court of Appeal found that HHJ Wall had failed to consider relevant evidence that went to the core of the claimant's case. Specifically, HHJ Wall had failed to set out in her judgment in full an exchange between PXM and MXX on Facebook about their meeting at school, in which PXM stated that after meeting MXX, he had tried to find her class in order to teach her. Davies LJ stated that this went to PXM's state of mind whilst on the WEP and ought to have been properly considered and weighed in the judgment. Davies LJ also considered that there was other evidence that was not given due regard by HHJ Wall, including the fact that within one week of the WEP, PXM and MXX were connected on Facebook, asking, "What innocent interest could PXM have had in inviting the claimant to be a Facebook friend when he knew it was forbidden? The Judge did not address this issue" [40]. Davies LJ continued at [42]: "The evidence should have been considered by the Judge and its implications addressed. I regard the absence of any such consideration by the Judge as representing a demonstrable failure to consider relevant evidence."
The Court of Appeal therefore upheld the claimant's challenge to HHJ Wall's factual findings, but did not determine whether or not it was appropriate to substitute its own finding of fact in place of the first instance findings. To do so was unnecessary because the appeal was dismissed on other grounds. Instead, Davies LJ addressed the remaining grounds of appeal on the assumption that PXM had groomed MXX during the WEP.
Vicarious liability
The Court of Appeal found for the claimant on stage 1 of the vicarious liability test, finding that PXM's role during his WEP was sufficiently akin to employment to be capable of giving rise to vicarious liability.
The Court of Appeal held that PXM did carry out some of the tasks of the PE teacher and that his WEP was of benefit to the defendant school, not only because it meant that the PE teacher did not have to carry out those tasks himself, but also because "WEP’s provide generic benefits to organisations by encouraging suitable people to enter the workplace in due course and thereby enabling organisations to recruit staff when necessary" [67].
The Court of Appeal also disagreed with HHJ Wall's determination that it was a 'neutral factor' that PXM was subject to the school's safeguarding policies and that, when he was introduced to pupils during PE classes, they were told to address him as 'Mr' and treat him as they would a teacher [70]. The Court of Appeal disagreed with HHJ Wall's finding that the fact that PXM was not integrated into the school's business was a significant factor when determining stage 1 of the vicarious liability test, stating it is more relevant to stage 2 [72]. The Court of Appeal therefore determined that PXM was in a relationship akin to employment while on the WEP.
The appeal was ultimately dismissed, though, because PXM's abuse of MXX was not sufficiently closely connected to the duties delegated to him during the WEP. Davies LJ attached considerable weight to the determination that PXM had no caring or pastoral role for the pupils [87]. Davies LJ indicated that other relevant factors were that PXM did not exercise authority over the pupils, had limited interactions MXX at the school, was on the WEP was just one week, and communication on Facebook did not begin until after the WEP [87]. Davies LJ concluded that, "the facts do not begin to satisfy the requirements of the close connection test" [88].
Comment
The Court of Appeal has determined that a WEP, even one limited to a week and where fairly limited duties are delegated to the WEP student, is capable of giving rise to vicarious liability for the organisation that offers it. It is not our view, though, that the Court of Appeal is seeking to establish a general principle that all WEPs will satisfy stage 1 of the vicarious liability test. Davies LJ found that the PXM's role went beyond "shadowing and observing" [71] and potentially even after this decision a WEP that was merely shadowing and observing would not be capable of giving rise to vicarious liability.
Interestingly, when determining what benefit the school derived from the WEP – a consideration as to whether or not it is akin to employment under the Cox v Ministry of Defence [2016] UKSC 10 – the Court of Appeal determined that, inter alia, the generic benefit that WEPs offer to the teaching profession at large was evidence of a benefit to the defendant [67]. This is a broad interpretation of what amounts to a benefit to the defendant. In this case, the Court of Appeal held that the school also derived direct benefit from the WEP, in that the activities PXM completed during PE classes freed up the teacher to complete other tasks. We would question whether a generic benefit to a sector or profession alone would be sufficient in a case where there is no direct benefit to the actual defendant.
On stage 2 of the vicarious liability test, the Court of Appeal emphasised the fact that PXM did not have any pastoral role or authority in relation to the pupils. It was insufficient that the WEP gave PXM the opportunity to groom the claimant, the Wrongdoing had to be closely connected to PXM's duties. Without this element of pastoral care, the subsequent abuse was not closely connected to PXM's role on the WEP. The first instance decision was handed down prior to the recent Supreme Court decision in Trustees of Barry Congregation of Jehovah's Witnesses v BXB, which clarified the law on vicarious liability. In BXB, Lord Burrows stated that 'but for' causation was insufficient to satisfy the 'close connection' test. The wrongful act must be so closely connected with the acts that the tortfeasor was authorised to perform that it can fairly and properly be regarded by the tortfeasor in the course of his employment or quasi-employment. HHJ Wall's decision is consistent with this judgment in finding that the fact that WEP provided the opportunity for PXM to meet MXX was insufficient – this is 'but for' causation, rather than establishing a close connection between the duties PXM undertook on the WEP and the abuse.
The Court of Appeal has refused permission to appeal. It remains to be seen if the Claimant will apply for permission to appeal direct to the Supreme Court, or if it will grant permission so soon after it decided BXB.
For further information please contact Paul Donnelly and Samuel Dawber.
For further reading please see our most recent updates:
Vicarious Liability claim fails on Stage 1 and 2 - GHI v TRC | DWF Group
Vicarious liability in abuse claims Supreme Court addresses close connection test | DWF Group
