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Vicarious liability: Liability for sexual assault

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By Zoë Wigan, Hilary Larter and Ceri Fuller

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Published 10 November 2023

Overview

The Court of Appeal has held that a secondary school was not liable for acts of sexual assault committed by a student who was on a one week work experience placement.

The facts

An 18 year old college student, referred to in this case as "PXM", undertook a week long work experience placement at a secondary school.  During the placement, he provided limited help with PE lessons.  He was expected to run warm ups, coach students under guidance, assist with sorting out equipment, wash bibs and carry out "general day to day PE stuff".

Before starting the placement, PXM attended an induction session, and was told he had to be supervised by a member of staff at all times. He was taken through the school's policy documents and written guidance, which included guidance on safe working practices for the protection of pupils and staff, emphasising the imbalance of power between pupils and staff and the risk of exploitation, and prohibiting them from social contact with pupils and from having friendships with them.  PXM signed a declaration, used by all employed staff, that he had read the guidance and understood his responsibility for child protection at the school. He was also referred to the "Staff Code of Conduct" which applied to all adults working or volunteering for the school.

During the week long placement, PXM interacted with a 13 year old on two occasions.  He suggested that she attend a badminton club, and interacted with her again when she attended the badminton club. He did not attend this pupil's PE classes.    

There was no social media contact between PXM and the pupil during the placement, but by the next month, they were communicating on Facebook. A few months later, PXM committed assault and battery against her, including sexual activity.  He was later arrested and pleaded guilty.

The pupil brought a claim against the school, seeking damages for personal injury, arguing that the school was vicariously liable for PXM's conduct.

The High Court dismissed the pupil's claim, holding that neither of the two limbs of the tests for vicarious liability were met, so the school was not liable. The pupil appealed to the Court of Appeal. The Court of Appeal found that the first limb of the test for vicarious liability was satisfied, but the second was not,  which meant it agreed that the school was not vicariously liable for PXM's acts. 

Key points in the Court of Appeal's decision were that:

  • The first test for vicarious liability is whether there is a relationship 'akin to employment':

This test was satisfied.  In deciding there was a relationship "akin to employment" the Court of Appeal found that the tasks PXM was performing were not merely ancillary tasks, but he was carrying out some of the work of the PE department, and playing a role in the school's 'business' of providing PE classes.  The tasks he carried out were for the school's benefit, allowing staff to spend time on other tasks with pupils, as well as being for the benefit of pupils.  The Court of Appeal considered that the fact he had to be supervised and closely directed in any activity with pupils, and therefore under the school's close direction and control, was suggestive of an employment type relationship.  

  • The second test for vicarious liability was whether the wrongful conduct by PXM was so closely connected with acts that PXM was authorised to do that it could fairly and properly be regarded as done by PXM while acting in the course of his 'employment'. this is known as the 'close connection' test:

The Court of Appeal commented that the facts of this case did not begin to satisfy the requirements of the close connection test. All of PXM's wrongful conduct occurred many weeks after his relationship with the school ended.  He was closely supervised at all times while at the school. He had no private access to the pupil nor any opportunity for such contact. He had no teaching responsibility. The Court of Appeal attached considerable weight to the fact that PXM had no caring or pastoral responsibilities. The use of Facebook was nothing to do with the school activities and the school's policies forbade social media contact. The most that could be said about the relationships was that it provided an opportunity for PXM to meet the pupil.

What does this mean for employers?

As with all vicarious liability cases, this case was very fact specific.  This case shows that work experience can satisfy the first limb of the vicarious liability test. Employers who are facing vicarious liability claims, and their advisers, will find the courts' considerations useful reading.

MXX -v- A Secondary School

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