EL V THE CHILDREN’S SOCIETY [2012] EWHC 365 (QB)
 
FACTS:-
 
The Defendant ran a children’s home, where a Mr and Mrs D were housemaster and matron. They had a son X who was 15 when they moved into the home. The Claimant was born in 1944 and he was put into care from May 1949. In mid 2008, he alleged that he had been sexually assaulted by X, who was arrested. X admitted that he had been involved in masturbation with three boys at the home but he denied the most serious of the Claimant’s allegations. In 2010, the Claimant issued proceedings against the Defendant and X. X committed suicide in July 2010 and his relatives settled X’s claim for £10,000.
 
HELD:-
 
Mr Justice Haddon-Cave said that there were three issues for determination.
 

1. Limitation
2. The extent of the abuse
3. Vicarious liability

 
Haddon-Cave J considered the law on vicarious liability and referred to the following cases:-
 

• Bernard v The AG of Jamaica [2004] UKPC 47
• Lister v Hesley Hall Ltd [2002] 1 AC 215 (HL)
• Various Claimants v Catholic Welfare Society and the Institute of the Brothers of the Christian Schools [2010] EWCA Civ 1106
• JGE v The English Province of Our Lady of Charity and the Trustees of the Portsmouth Roman Catholic Diocese [2011] EWHC 2871
• Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005[ EWCA Civ 1151

.
The underlying principles for making A vicariously liable could be summarised as follows:-
 

1. The underlying rationale for making A vicariously liable for the torts of B, where A has employed B for his own ends, is one of ‘inherent risk”. If A gave B the opportunity to commit an unlawful act connected to, or arising from a risk inherent in the enterprise, A would be liable for B’s actions if the risk was one which experience showed was inherent in the nature of the business.
2. Secondly a two stage inquiry was required. The first was to examine the relationship between the Defendant and the tortfeasor. The second was to examine the connection between the defendant and the act or omission of the tortfeasor in question.
3. Vicarious liability was not only confined to relationships of employment or paid business relationships. It could exist in other types of relationships, such as between members of unincorporated associations or partnerships.
4. If the tortfeasor committed an action outside his authority, that was not necessarily a bar to the existence of vicarious liability.
5. It was not sufficient that the employment by the Defendant merely afforded the tortfeasor the opportunity to commit the tort.

 
The Claimant argued that Mr and Mrs D had entrusted the running of the home to their son, X which included putting the children to bed and taking them to church. However the Claimant had not mentioned X as having any supervisory role when he first raised his complaint, nor had his letter of claim said that the Defendant was his employer.
 
Haddon-Cave J examined what X had done within the home. The Claimant’s evidence about X being in charge was not particularly compelling and there were no evidence in any of the Defendant’s records of X having ever been employed in any capacity at the home.
 
There was a witness from the home, an assistant who was now 85. She had actually left the home after making a complaint about Mr D’s violent temper. There were two witnesses who had been children at the home. One said that X was something an authority figure because he was the son of Mr and Mrs D, and the other said that he was sometimes left in charge of the home.
 
Haddon-Cave J referred to the Children’s Society Handbook 1959, which set out the Defendant’s structure. A senior employee of the Defendant also gave evidence. She confirmed that X had never been employed by the Defendant.
 
Haddon-Cave J said that the Claimant’s arguments on vicarious liability failed for a number of reasons. Firstly he was not satisfied on the evidence that X was ever left in charge of the home, when his parents went out. Whilst his parents had authority engage a suitable person in the home, there was not evidence that their son would have been regarded as a suitable person or in fact that he was ever engaged. Finally the abuse took place when X’s parents were in the house, and consequently it did not take place when X was engaged as a temporary relief. The evidence did not begin to satisfy the fact-sensitive tests of vicarious liability.
 
Haddon-Cave J then considered the issue of limitation. In this case the primary limitation period expired on the 11th February 1965, and the present proceedings were filed on the 21st February 2011. The claim was therefore 46 years out of time. Haddon-Cave J considered the terms of Section 33 of the Limitation Act 1980 and referred to the following cases:-
 

• KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 (CA)
• A v Hoare [2008] AC 844 (HL)
• B v Nugent Care Society [2010] 1 WLR 516 (CA)
• Cain v Francis [2009] QB 754

 
Haddon-Cave J applied the following principles:-
 

1. The court should consider each of the circumstances listed under subsection 33(3)(a) to (f) of the Limitation Act 1980, but that list was not exhaustive.
2. Key considerations were the reasons or excuse for the delay and the effect of the delay on the Defendant’s ability to investigate or defend the claim.
3. The length of the delay was not of itself, a deciding factor.
4. The Court had to consider whether the Defendant had suffered any evidential or other forensic prejudice by reason of the delay and whether the Defendant would have a fair opportunity to defend himself against the claim.
5. The basic test was whether it was fair and just in all the circumstances to expect the Defendant to meet this claim on the merits, notwithstanding the delay.
6. Each case depended on its own facts.

 
Counsel for the Defendant took no point on the Claimant’s reasons for not having come forward earlier with this complaint. Haddon Cave J said that this was the correct approach. However the facts in this case were very different from those in B v Nugent Care Society. In that case, the perpetrator was the husband of the house mistress who had a formal role as an “escort officer” and they were referred to as joint house parents. Vicarious liability was not seriously challenged.
 
Counsel for the Claimant also argued that this claim would have been impossible prior to Lister and A v Hoare. Haddon-Cave J would reject this ingenious argument. It was always open to the Claimant in law to bring the claim earlier.
 
There was also the effect of delay in the context of the vicarious liability issue, which was fact sensitive. Only two members of staff from the Defendant could be traced. Mr and Mrs D and their son, X were no longer alive. The few witnesses from the care home who were still alive were now elderly and the half century elapsed had inevitably affected their recollections. Whilst basic records from the home existed, it was likely that there would have existed more detailed contemporaneous documents and account throwing light on the home. For these reasons, the Defendant would be seriously prejudiced. Haddon-Cave J would decline to waive limitation.
 
There was an issue as to the extent of the abuse. The Claimant’s memory had faded in many respects over the passage of time, and there were inconsistencies, but Professor Maden concluded that the Claimant was a good and credible historian. X had admitted to the police that acts of masturbation involving the Claimant probably did take place, but he had not engaged in anal intercourse with the Claimant. Haddon-Cave J said that after fifty years, a fair trial of this issue (the extent of the abuse) would not be possible. Therefore he would have declined to exercise his discretion under Section 33 in any event, even if he had not found against the Claimant on the vicarious liability issue.