Dear James;

Thanks for this! People used to talk about the “relentless march” of the law of negligence, it seems that we are now witnessing in the UK the relentless expansion of vicarious liability through the “akin to employment” category. I have to say I think that Lord Hughes was right on this point. List members will probably know that the High Court of Australia set out its approach to vicarious liability for intentional torts last year in Prince Alfred College Incorporated v ADC [2016] HCA 37 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2016/37.html but justifiably that case receives no mention here, since it was about the “scope of employment” test and not about the class of persons for whom one can be vicariously liable (here the last time the HCA visited the issue was back in Sweeney v Boylan and at that stage reaffirmed a preference for limiting the class to employees.)

I was encouraged, however, by the comments on non-delegable duty in this decision. I think the doctrine was correctly described and the issues involved were resolved well- as the majority says, if NDD is about a duty owed by the defendant, here the defendant Council did not owe a duty to directly undertake day to day care, but rather to see that such care was organised. I was very pleased to see, as well, that Lord Reed for the majority rejected suggestions that NDD could not be used in relation to intentional torts (a position we are still in, in Australia, following the decision in Lepore.) See para [51]: “Nor am I able to agree that a non-delegable duty cannot be breached by a deliberate wrong.” I hope that the High Court of Australia may eventually be persuaded to take the same view. In this country at least I think NDD is a much better doctrine to deal with issues such as clergy child abuse, than any expansion of vicarious liability to non-employees.

Regards

Neil

 

 

 

 

 

Dear Colleagues,

 

In the major decision of Armes v Nottinghamshire County Council [2017] UKSC, the Supreme Court has considered the law on non-delegable duties and vicarious liability in cases of historic abuse. It is the first time that the Supreme Court has revisited the vicarious liability since Cox v Ministry of Justice and Mohamud v Morrisons last year, which were decided after the Court of Appeal decision in the instant case.

 

The claimant was in the local authority’s care from early childhood until she was 18. The local authority placed her with two sets of foster parents, Mr and Mrs A and Mr and Mrs B. She was physically abused by Mrs B and sexually abused by Mr B and. She sought to claim against the local authority in respect of the abuse which she had suffered.

 

The Court unanimously holds that the local authority did not owe any non-delegable duty to the claimant, given the legislative framework (the Court considers Woodland v Essex on the point).

 

However, the Court, by a majority (Lord Hughes dissenting), allows appeal and hold that the claim succeeds on the basis of vicarious liability. The Court concludes that the Council’s extensive involvement with the foster parents meant that the foster parents were undertaking an activity on behalf of the Council, with the attendant risk of abuse, and that the Council should be vicariously liable. There is also express mention of the Council being better placed to satisfy any claim than the foster parents.

 

A couple of paragraphs from Lord Reed’s judgment indicate the approach to the Cox factors:

 

60. “Although the picture presented is not without complexity, nevertheless when considered as a whole it points towards the conclusion that the foster parents provided care to the child as an integral part of the local authority’s organisation of its child care services. If one stands back from the minutiae of daily life and considers the local authority’s statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child, in order for her to receive care in the setting which they considered would best promote her welfare. In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority.”

63 “In relation to the remaining issue, that of the ability to satisfy an award of damages, vicarious liability is only of practical relevance in situations where (1) the principal tortfeasor cannot be found or is not worth suing, and (2) the person sought to be made vicariously liable is able to compensate the victim of the tort. Those conditions are satisfied in the present context. Most foster parents have insufficient means to be able to meet a substantial award of damages, and are unlikely to have (or to be able to obtain) insurance against their own propensity to criminal behaviour. The local authorities which engage them can more easily compensate the victims of injuries which are often serious and long-lasting.”

 

Lord Hughes dissents on this point, concluding:

 

91. “Vicarious liability is strict liability, imposed on a party which has been in no sense at fault. It is necessary, and fair and just, when it applies to fix liability on someone who undertakes an activity, especially a commercial activity, by getting someone else integrated into his organisation to do it for him. Employment is the classic example, but other situations may be analogous. But the extension of strict liability needs careful justification. Once one examines the nature of fostering, its extension to that activity does not seem to me to be either called for or justified, but, rather, fraught with difficulty and contra-indicated. Accordingly, I would uphold the decision of the Court of Appeal and dismiss this appeal.”

 

Armes is thus another significant step in the seemingly relentless expansion of the scope of vicarious liability in English Law.

 

The full judgment is available here: https://www.supremecourt.uk/cases/docs/uksc-2016-0004-judgment.pdf.

 

Best wishes,

James

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James Lee

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