Dear Ger and colleagues;

I have had a chance after a few busy days to read the decision in NA v Nottinghamshire County Council [2015] EWCA Civ 1139 (12 Nov 2015) and it is indeed a very interesting decision. I presented a paper earlier this year on similar issues which hasn’t been published anywhere yet, but if anyone is interested can be found at Neil J. Foster. 2015. "Vicarious Liability and Non-Delegable Duty in common law actions based on institutional child abuse" http://works.bepress.com/neil_foster/92 . NA is not quite on all fours with the “institutional” cases of course. For those who are interested in this area there has been a very interesting decision just handed down by the Full Court of the Supreme Court of South Australia (an appeal from a case I mention in the above paper) in A, DC v PRINCE ALFRED COLLEGE INC [2015] SASCFC 161 (10 November 2015) http://www.austlii.edu.au/au/cases/sa/SASCFC/2015/161.html .

Some brief points to note:

NA is of course correct not to find the foster parents vicariously liable, they are clearly not employees of the Council, but it is unfortunate that the broad “akin to employment” test adopted in the UK following CCWS makes it even necessary to spend time on this question
I think the NDD issues in NA are trickier, and there is an interesting range of views expressed on the question, applying the Woodland criteria on the question. Tomlinson LJ says that while he is inclined to agree with the trial judge that the five criteria set out by Lord Sumption in para [23] of Woodland are satisfied, there is a “final stage” which is to consider broad “policy” reasons for denying that NDD applies, which here seems to mean that it would be very costly to hold local authorities strictly liable for harm committed by foster parents. However, in the end he takes the view that one of the criteria is not satisfied- the “duty” the authority had was to “provide accommodation and maintenance”, not to exercise reasonable care for the child’s safety. And they discharged their duty by placing the child with foster families. (It had been decided at an earlier stage, and not in question here, that “due diligence” in checking the families had been carried out, so there was no question of “direct” liability in negligence of the local authority.)
Burnett LJ rejected the NDD claim on essentially the basis that NDD does not cover “intentional” torts. Australian lawyers will recognise that this was what the High Court of Australia had said in Lepore, which his Lordship cites as persuasive at [35].
I think however that Lady Justice Black is more persuasive on the duty of the authority as being in the place of a parent, and hence having a duty to take care which they had “delegated” to the foster parents. Her Ladyship was much more hesitant to reject the NDD claim, and also more hesitant in excluding all intentional torts from the scope of NDD - see [59] (and indeed Lord Tomlinson explicitly refused to decide that issue– see [26]. But in the end she concluded that the practical consequences of imposing an NDD here would be bad, especially if it led to local bodies being less willing to put children into home situations where they would probably on the whole have a better outcome than in an institution- see [62].
On balance, I think the outcome is correct. One feature the judges note is that if an authority discharged its duty by temporarily placing the child back in the care of its own parents, it would not be right to impose NDD liability on the authority in that case, and hence there would be some irrationality in imposing it for the actions of others. Nor would a parent who let their child be cared for temporarily themselves be liable under NDD- see [64]. These sort of issues, flowing from the complexities of civil liability between family members, and the aim of foster parenting to create “family” structures for children, incline me to agree with the outcome in this special case of fostering. But I do not agree with Burnett LJ’s adoption of what I see as the illogical rule in Lepore ruling out NDD for intentional torts; as I try to explain in my paper (and the chapter in the forthcoming book based on last year’s Obligations conference) I think NDD is an appropriate tool for dealing with institutional child abuse and this rule should be abolished. (I just agree with the NA court that a “foster family” is sufficiently different from other institutions.) The decisions here do not preclude the courts in the UK developing NDD in this area, and one can only hope the HCA may be prepared to revisit this issue in the future.
In my A, DC is a simpler case- I always thought the trial judge had wrongly applied the vicarious liability principles from Lepore, and now the decision of the Full Court here (especially the judgment of Peel J, in my view) provides a good review of those principles and correctly holds that there should be VL for the actions of a boarding master who regularly supervised showering and bed arrangements for 12 year olds, and took advantage of those things to commit sexual abuse.

Regards

Neil

neil foster

Associate Professor

Newcastle Law School
Faculty of Business and Law

T: +61 2 49217430
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From: Gerard Sadlier <gerard.sadlier@gmail.com>
Date: Friday, 13 November 2015 2:39 am
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: English Court of Appeal's Latest Judgment on Vicarious Liability and Non-Delegable Duties of Care

Dear all

Please see a link to the latest judgment of the English Court of

Appeal on the above issues.

The claimant sued a local authority which had taken her into care and

placed her with foster parents for successive epesodes of physical and

sexual abuse. The claim pleaded was not for negligence but that

either:

1. The local authority were vicariously liable for the acts of the

foster carers; or

2. The local authority had a non-delegable duty of care to the Plaintiff.

Perhaps unsurprisingly, the claim failed. All members of the Court

delivered individual judgments, which are not in accord on all points.

The case is a tragic one but the result seems right to me. The

consequences of a decision the other way would be serious and

far-reaching.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1139.html

Kind regards

Ger

From:	Neil Foster <neil.foster@newcastle.edu.au>
To:	Gerard Sadlier <gerard.sadlier@gmail.com>
	obligations@uwo.ca
Date:	18/11/2015 06:26:44 UTC
Subject:	Re: English Court of Appeal's Latest Judgment on Vicarious Liability and Non-Delegable Duties of Care