Dear Colleagues:

 

I have to admit that I have not been following the UK developments in relation to vicarious liability very closely, but I had a look at the Ames case.  What has happened to the UKSC?* I was shocked that what used to be considered the world's leading common law court could think the mere existence of the ability to pay is a reason to pay. It is as if the fact that most assaults happen at night, means that it being dark is part of the legal test of assault!  Moreover, how could they seriously think that the Christian Brothers/Cox factors could possible justify when someone is in a type of relationship for which it is permissible to impose vicarious liability (or conversely not in such a relationship).  Lord Hughes is bang on when he says at [77]:

 

Lord Phillips’s five policy factors or incidents (Christian Brothers paras 35 and 47) were derived by him from the primary model of vicarious liability, namely employment. …  In  the  present  case,  the  third factor (business activity) does not apply. The first (deep pockets or insurance) … cannot by itself be a principled ground for vicarious  liability  and  tends  to  be  circular.  The  fourth  (creation  of  risk)  will  in practice apply to virtually all situations in which A asks or authorises B to deal in some manner with C. The principally relevant factors here would seem to be factors 2 (integration), and 5 (control).

 

The task therefore is obvious:  the courts need to come up with a theory that explains why integration and control lead to vicarious liability but does not simultaneously commit the common law to a regime of strict liability for everything.  Once that is done, the theory then has to accommodate the modern course of employment/relationship jurisprudence: ie the fact that serious deviations from the tasks assigned (such as sexual assault) are in the course of employment/relationship without leading to responsibility on the basis of merely but for causation. If that cannot be done then the courts should abandon vicarious liability as unprincipled, unjust and unexplainable (or rewind the clock).  It seems clear that on the basis of 20 years development, the indemnity model is no longer able to provide that explanation.  Perhaps with a few tweaks, the attribution model might, but that remains to be determined.  

 

*Why has the UKSC has seemingly changed from the most legalistic and doctrinal Commonwealth court to one that trades in balancing platitudes.  Is it the effect of modern British legal education coming home to roost (see EJ Weinrib, Can Law Survive Legal Education)? Was it the change from the HL to becoming a separate organ of government? Is it merely the personnel turnover of the judges? Is it the influence of Canadian and American jurisprudence reinforced by international meetings between Final Court Appellate Judges (as one of my colleagues has suggested)? Or perhaps some combination of them all? 

 

Sincerely,

 

 

 

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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