March 2012 - PI Practitioner

Vicarious Liability For Abuse

EL v Children's Society [2012] EWHC 365 (QB) - the Claimant claimed damages for sexual abuse suffered while he was resident at one of the Defendant's (D) children' homes in the 1950s. The abuse was perpetrated by the son of the houseparents (B). The Claimant issued against B himself and against D. The question was whether D was vicariously liable for the actions of B when they had employed B's parents as houseparents and not B himself.

EL submitted that B had had responsibilities within the home; that he had been left in charge when his parents were away and that since he had contributed to discharging the houseparents' care obligation B's abuse was closely connected with his role at the home. Therefore, while B was never employed by D, D ought still to be vicariously liable.

Held: by Haddon-Cave J, that the doctrine of vicarious liability was a principle of strict liability and therefore it was important to keep it within clear limits. Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215 and Various Claimants v Institute of the Brothers of the Christian Schools [2010] EWCA Civ 1106 were applied. It was not sufficient that the employment by D allowed the perpetrator an opportunity to commit the tort. The further questions where whether the employer had entrusted to the perpetrator the performance which it, the employer, had undertaken [i.e. in this case care of the children]; and if so whether there was a sufficiently close relationship between the torts and the tortfeasor's employment to make it fair and just to hold the employer liable. On the facts, the abuse had not been carried out by B when employed as temporary relief cover for his parents. On the facts, the test in Lister and Various Claimantswas not met.