Abuse cases typically involve issues of limitation and a debate as to who should bear the legal responsibility for the actions of the wrong doer(s) via the principles of vicarious liability.
This judgment does not disappoint, providing an interesting analysis of limitation (the applicable law being Scottish but with reference to English criteria) and a very helpful review of where we are following the Supreme Court's decision on vicarious liability in Various Claimants v Barclays Bank .
Both of these concepts are also regular challenges for those involved in advising healthcare providers and this decision sets out a roadmap to help us navigate what can often feel 'offroad' territory in a clinical context where there are often a multitude of participants and contractual complexities.
The claimant (born in 1962) attended school in Scotland where he was abused by a gardener/night watchman between 1972-1974. The issues before the court were:
1) Could the school rely upon a limitation defence and, if no;
2) Was the school vicariously liable for
a) the gardener/night watchman- disputed
b) the headmaster- accepted but disputed any abuse occurred.
c) the teachers – accepted but disputed any abuse occurred.
Primary limitation expired in 1983. Proceedings were not issued in England until 36 years later (2018), requiring the court to consider if it would be possible for a fair hearing to proceed i.e. to answer the question required under Scottish law- was the prejudice to the defendant in the case continuing substantial?
In relation to the gardener/night watchman after careful analysis of the evidence it was found that the claimant should be allowed to pursue his claim for damages. This was not the case for the claims against the headmaster and the teachers – barriers being the lack records and death of the alleged perpetrator.
It was accepted that the gardener/night watchman was employed by the managers of the school, not the defendant and that as a result, for the defendant to be vicariously liable for his wrongdoing, there would need to be positive answers to the following questions:
a) did the relationship between the two of them make it proper for the defendant Institute to be held responsible for the abuse inflicted by gardener/night watchman upon the claimant i.e. was the relationship akin to that of employment?
b) was the connection between that relationship and the wrongdoing such that the abuse could be found to have been committed whilst the gardener/night watchman was acting within the scope of his employment?
In contrast to the debate that was the focus in Barclays this was not a situation where there was an argument as to the wrongdoer's personal business activities, and whether or not he was an independent contractor. The focus here was one of the links between the wrongdoer and the school and whether the relationship between the two of them could be identified as akin to that of employee and employer.
The decision was that such a relationship could not be found. Employment relationships that were integral to the defendant involved their business of delivering a Christian education i.e. providing teaching services to the pupils. The wrongdoer was a gardener/night watchman and this service failed to satisfy the integral test.
The claimant's case failed. Whilst limitation was not a barrier for the claimant to pursue the defendant for the actions of the gardener/night watchman, vicarious liability of the Institute for the wrong doing of that individual could not be imposed.
In the healthcare context, the rules for retention of medical records often means that there remains a credible evidence base to evaluate liability, such that sufficient prejudice cannot be established to defeat a historic clinical negligence claim. Where, however, all records have been destroyed the judicial challenge (as deployed in this case) is to evaluate the impact of delay on the cogency of the evidence that is available. This involves recognising the fallibility of memory and making findings of fact based on all the available evidence whilst not determining the substantive issues.
Where a limitation argument does not defeat a clinical negligence claim (or where such an argument is not available) the proposition that vicarious liability applies is a frequent argument where patient representatives are concerned about the scope/level of indemnity available or fear being criticised for not including every possible defendant until damages are secured.
Typically, as in Barclays, responding to this proposition involves defendants arguing that the arrangement with a criticised supplier was truly one where the supplier was an independent contractor. The value of JXJ is that it provides some guidance where there may be an argument that the wrongdoer was not integral to the business of the healthcare provider. Whilst the scope to deploy such a defence is likely to be limited in the context of a clinical negligence claim, it is a route to be aware of and deployed when appropriate by healthcare providers, particularly when nets continue to be cast wide to catch all possible defendants.
For more information please contact Vicki Swanton.