Recently there have been a number of cases about vicarious liability. What does this mean? It means another person is responsible for a third party’s act. In Mohamud v Wm Morrison Supermarkets plc [2016], the Supreme Court set out a two stage test which would make an employer culpable for an employee’s wrongful act. The test is (1) What was the nature of the employee’s job? and (2) was there a sufficient connection between the employee’s position and their wrongful conduct such as to make it right for the employer to be held liable.
In 2022, the Supreme Court held that the Jehovah’s Witnesses were not liable for the rape of one their congregation who had been assaulted by an elder of the Barry Congregation of Jehovah’s Witnesses because the rapist had not been “carrying out any activities as an elder of behalf of the Jehovah’s Witnesses”, Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB.
In the most recent case of MXX and A Secondary School, the Court of Appeal looked at this issue from the perspective of a pupil who was sexually assaulted by a student teacher, who had been on a one-week work experience placement at the school. The pupil sued the school for personal injury, but the Court of Appeal ultimately decided that the school was not liable.
To preserve the anonymity of the parties, the Court of Appeal used initials to identify the parties involved in this sad story. PXM, the assailant, at the time was an 18-year-old college student, who wanted to qualify as a PE teacher. He undertook a one-week work experience placement with the school, during which he was expected to provide some help with PE lessons. PXM attended an induction meeting at the school, where he was told he would have to be supervised by a member of staff at all times and was taken through the school’s policies including safe working practices for the protection of children. He signed a declaration confirming that he had read the policies and understood his responsibility for child protection at the school.
During the placement, there were two occasions where PXM interacted with a pupil who was 13 years old – once when he suggested that the pupil attend an after-school’s badminton club and at the club itself. The following month the pupil and PXM started communicating on Facebook. Five months later PXM met with the pupil and had sex with her. The pupil sued the school for personal injury claiming sexual assault and argued that the school was vicariously liable for PXM’s conduct.
The High Court dismissed the claim, holding that PXM’s relationship with the school was not “akin to employment” and that the assaults had occurred months after his relationship with the school had ended.
The Court of Appeal allowed an appeal on the basis that PXM had begun grooming the pupil during his placement and that the conduct and mental elements of the tort of intentional infliction of injury were made during PXM’s placement with the school. It also held that the relationship between the school and PXM was “akin to employment”. It had required PXM to read and accept its procedures and guidance, which applied to all its staff and it had regulated PXM’s time, supervised him, directed and controlled what he did. Pupils were told to treat him like a member of staff and he was not ‘carrying out business’ on his own account.
The Court of Appeal held that given the limited nature of the student’s role during the placement, there was not a sufficiently close connection between the placement and the wrongful conduct for the school to be held responsible. The grooming which led to the sexual offences was not inextricably woven within the work PXM did. He had no position of authority over the pupils, his social media communications started after he left the school and these were expressly prohibited by the school’s policies. The Court of Appeal therefore dismissed the claim.
The full transcript of the COA judgment can be found here.
It must be so distressing for the pupil to have suffered sexual assault and naturally the pupil sought legal redress. Quite right too. While PXM did plead guilty to the criminal offence, this most likely was not sufficient justice for the pupil victim.
This case demonstrates the two stage test that needs to be met in order to find an employer liable. An employer will try and defend a case to say that it took all reasonable steps to prevent the injury from happening, but at least in schools and any institution that works with children and vulnerable people that responsibility is heightened. In this instance the victim failed to find justice.
This blog was written by Anita Vadgama, partner & solicitor at didlaw.
