An avenue closed: vicarious liability and non-delegable duties in abuse cases

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An avenue closed: vicarious liability and non-delegable duties in abuse cases

Published 28 April 2021

There are few types of claim more difficult and heart-rending than those involving the sexual and physical abuse of children and whether representing claimants or defendants it is impossible to feel anything other than the greatest sympathy for the victims.

A measured and compassionate approach to determining the legal position is an essential element of such cases and this was evident from the important decision of Mr. Justice Cavanagh in SKX-v-Manchester City Council  [2021] EWHC 782 (QB).

The claim involved the infamous Bryn Alyn Hall children’s home (“Bryn Alyn”) in North Wales, an establishment which has been at the centre of numerous allegations and which, with other homes in the area, was the subject of a major public inquiry chaired by Sir Ronald Waterhouse, which resulted in the report “Lost in Care” being published in February 2000.

The claimant had been sent to Bryn Alyn  at the age of 15 while in the care of the defendant and, as the defendant accepted, had received serious sexual abuse at the hands of John Allen, the Chief Executive of the Bryn Alyn Community (“the BAC”), a privately-owned children’s residential community operating a number of children’s homes including Bryn Alyn .

The claimant, who the judge acknowledged “has had a very troubled adulthood”, was not seeking to establish that the defendant local authority was directly at fault for the abuse suffered but that either it was vicariously liable for the acts of the Chief Executive of the children’s home, or that its duty to protect and care for him was a non-delegable duty, meaning that it was liable even though the defendant was not itself at fault for the abuse suffered.

The claimant had made previous attempts to secure compensation for the abuse that he had suffered.  A group action brought directly against the company that owned BAC was ultimately unsuccessful as a policy exemption rendered the insurers not liable to meet the claims and a claim for compensation from the Criminal Injuries Compensation Authority failed as he had unspent criminal convictions.

In this claim, no fault was being alleged on the part of the defendant: it was advanced on the basis that it did not matter that neither the defendant nor its employees were at fault, but that “the continuing responsibility of a local authority for a child in its care in these circumstances is such that the local authority has either assumed a non-delegable duty, or is vicariously responsible for the acts of the senior managers of the company in charge of the placement.” 

Three issues were identified which were to be determined at an early stage in the proceedings and these were:

(1)           Whether the defendant is vicariously liable for the actions of the abuser?;

(2)           Whether the duty of care owed by the defendant to the claimant is non-delegable?; and

(3)           Given that the primary limitation period had expired by the time the claimant commenced these proceedings, should the claim be struck out as being out of time, or should the Court exercise its discretion under section 33 of the Limitation Act 1980 to extend time?

On the first of these issues the judge spent almost 30 paragraphs of his judgment examining the law of vicarious liability and the recent developments including the cases of Armes v Nottinghamshire County Council [2017] UKSC 60, Various Claimants v Barclays Bank [2020] UKSC 13, Viasystems (Tyneside) Limited v Thermal Transfer Ltd [2005] EWCA Civ 1151, Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56; [2013] (“the Christian Brothers case”) and Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660.

The judge identified the central question as “whether the relationship between the wrongdoer and the person who is alleged to have vicarious liability is akin to employment”, noting that it was only where such a relationship was found to exist that the five factors identified by Lord Phillips in the Christian Brothers case to determine whether the imposition of vicarious liability would be fair just and reasonable came into play.

On the vicarious liability issue, the judge came to a simple and clear conclusion:

In my view, applying the principles of vicarious liability as identified by the Supreme Court in Barclays Bank and the cases that preceded it, it is clear that the defendant local authority is not vicariously liable for the abuse perpetrated by John Allen upon the claimant.  At the relevant time, John Allen was not in a relationship akin to employment with the local authorities that placed children in the BAC.  He was carrying out an independent business on behalf of a third party, the company that operated the BAC.  That business was no doubt vicariously liable for John Allen’s actions, but the defendant was not.

Having dismissed the claim as brought on this basis the judge went on to consider whether the defendant was under a non-delegable duty, considering in detail both the Armes case and the decision of the Supreme Court in Woodland v Swimming Teachers Association and others [2013] UKSC 66.  Although there were differences, Armes was closer to the instant cases, dealing as it did with the liability of a local authority who had placed a child in foster care.  The claimant sought to distinguish Armes in which the Supreme Court held that no non-delegable duty arose in such circumstances.

The claimant sought to argue that a distinction should be drawn between Armes, where the child had been taken into care as the result of a care order and his situation (he had been voluntarily placed into care) but this did not find favour with the court.

“……there is also no basis for distinguishing Armes on the basis that the child in Armes was placed with foster parents, whereas the claimant in the present case was placed in a privately-run children’s home.”

The judge concluded his decision on this issue:

“In my judgment, it is clear, in light of the principles identified by the Supreme Court in Woodland and Armes that the defendant in the present case did not have a non-delegable duty to protect the claimant when he was placed in a privately-run residential home.”

In view of the findings on these points the issue of limitation became somewhat academic.  However, the judge went on to consider it nonetheless. 

Approaching the limitation with the same thoroughness and attention to detail as the rest of his judgment, the judge concluded:

“… is appropriate to extend time under section 33 so as to bring the claim in time, notwithstanding that I have gone on to dismiss the claim.”

The decision has widespread ramifications for other cases determining the basis upon which, on behalf of the claimant, it was sought to extend the current parameters of the liability of local authorities.

The case is the lead claim in a number of claims being pursued against various local authorities, with one of those claims being handled by Andrea Ward of DAC Beachcroft.


Andrea Ward

Andrea Ward


+44(0)191 404 4147

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