SKX AND MANCHESTER CITY COUNCIL  EWHC 782 (QB)
SKX claimed damages against the Defendant for personal injuries arising from childhood sexual abuse. The abuse was carried out in 1989 by the Chief Executive of the privately-run children's home to which the Claimant had been sent at the age of 15, whilst in the Defendant's care. The parties had agreed that there should be a trial of three issues at this stage of the proceedings. These were:
(1) Whether the Defendant was vicariously liable for the actions of the abuser
(2) Whether the duty of care owed by the Defendant to the Claimant was non-delegable
(3) Should the Court exercise its discretion under section 33 of the Limitation Act 1980 to extend time?
The Claimant was born in 1974 and was now 47 years old. He was placed successively, in three residential placements. Whilst the claimant was at one of these, Bryn Alyn Hall, he was subjected to serious sexual abuse from the Chief Executive of the company that owned the home, John Allen, including forced masturbation and buggery. On 26 November 2014, Allen was convicted of 33 sexual offences, including one count of buggery and three counts of indecent assault against the Claimant.
He had brought action against the company, the Bryn Allen Community (“BAC”) that owned the home, but that went into liquidation and the insurer refused to meet the judgment sums. They were able to successfully argue that an exclusion clause excluded recovery in respect of abuse that was committed by the managerial employees of the company, who included John Allen. This was because the deliberate acts of such managerial employees were to be equated with the deliberate acts of the company itself, and such acts were excluded by the exclusion clause. That meant that the Claimant’s action against the company were at an end.
In December 2016, the Claimant was contacted by his civil solicitors, who advised him that there had been changes in the law and that further proceedings were now being contemplated against local authorities who placed children in the BAC.
Mr Justice Cavanagh said that the claim was issued on 23 February 2017. That was approximately 28 years after the events to which the claim related. Pursuant to the provisions of the Limitation Act 1980, the limitation period did not begin until the claimant's 18th birthday, on 11 February 1992, and so the three-year primary limitation period expired on the claimant's 21st birthday, on 11 February 1995, which was 22 years before the claim was commenced.
Cavanagh J set out the relevant statutory framework before turning to each of the three issues, which the court had been asked to determine.
Cavanagh J considered the following cases.
- Armes v Nottinghamshire  UKSC 60
- Various Claimants v Barclays Bank  UKSC 13
- Viasystems (Tyneside) Limited v Thermal Transfer Ltd  EWCA Civ 1151
- Various Claimants v Catholic Child Welfare Society and others  UKSC 56
- Cox v Ministry of Justice  UKSC 10
- WM Morrisons Supermarkets Plc v Various Claimants  UKSC 12
The test for vicarious liability required a synthesis of two stages. The first stage was to consider the relationship of the wrongdoer and the person who was alleged to have vicarious liability and to see whether that relationship was one that was capable of giving rise to vicarious liability.
The second stage was to determine whether there was a sufficiently close connection between that relationship and the tortious conduct.
Cavanagh J looked at the Barclays Bank case. In that case, Lady Hale had referred to five "policy reasons" or "incidents" which usually made it fair, just and reasonable to impose vicarious liability upon an employer for the torts committed by an employee in the course of his employment. These were:
(i) the employer was more likely to have the means to compensate the victim than the employee and could be expected to have insured against that liability;
(ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
(iii) the employee's activity was likely to be part of the business activity of the employer;
(iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
(v) the employee will, to a greater or lesser degree, have been under the control of the employer.
In the Supreme Court's judgment in Barclays Bank, the Court made clear that these five "incidents" were not intended to be a set of criteria which were to be applied in non-employment cases to decide whether vicarious liability existed. Rather, they were the policy reasons as to why vicarious liability existed.
There was still a classic distinction between work done for an employer as part of the business of that employer and work done by an independent contractor as part of the business of that contractor. In the Armes decision, the UK Supreme Court examined the five "incidents", but their conclusion was the foster parents could be regarded as carrying on an independent business of their own.
In doubtful cases, the five "incidents" might be helpful in identifying a relationship which was sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. However, the key, as it was in Christian Brothers, Cox and Armes , would usually lie in understanding the details of the relationship.
Where it was clear that the tortfeasor was carrying on his own independent business it was not necessary to consider the five incidents.
Cavanagh J said that the central question was whether the relationship between the wrongdoer and the person who was alleged to have vicarious liability was akin to employment. If the wrongdoer was carrying out an independent business of his own or that of a third party, then there would be no vicarious liability and there would be no need to consider the five incidents.
In this case, it was clear that the defendant local authority was 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. There was a classic client/independent contractor relationship between the defendant local authority and the Company that ran the BAC.
In Woodland v Essex County Council  UKSC 6, the Supreme Court held that a local education authority was liable for injuries suffered by a school pupil who suffered a severe brain injury during a swimming lesson that had been arranged by the school at a pool run by another local education authority and which had been supervised by a swimming teacher and life guard who had been employed by the independent contractor who organised and provided the lesson. The Supreme Court held that the essential feature of a non-delegable duty of reasonable care was that a defendant had control over a vulnerable claimant for the purpose of performing a function for which the defendant had assumed responsibility, and that, within school hours, a school was in such a position of responsibility and control over a pupil. The Supreme Court held that it was fair, just and reasonable to hold a school liable for injury caused by the negligence of an independent contractor to whom it had delegated its educational function and control over a pupil during the school day.
Cavanagh J also considered the case of Armes which also considered whether there was a non-delegable duty. In his judgment, it was 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. The reasoning of the Supreme Court as applied to children in foster care in in Armes, with minor alterations, applied equally to the present case.
As in Armes, the central question was whether the defendant local authority had a statutory duty (1) to provide children such as the claimant with day-to-day care, or only (2) to arrange, supervise and pay for it. The clear answer, was that it had a duty to arrange, supervise and pay for the child's day-to day-care. There was no non-delegable duty to ensure that care was taken for the claimant whilst he was placed with a third party in accordance with the defendant's statutory power so to do.
Moreover, in light of the Supreme Court judgment in Armes, it was clear that, when it placed the claimant in the BAC, the defendant performed and discharged its duty to provide accommodation and maintenance and daily care for the claimant..
The conclusion that there was no non-delegable duty in the present case was consistent with the legal principles set out by the Supreme Court in the earlier case of Woodland. Though four of the five criteria for a non-delegable duty, were present, the fourth one was not, which was :-
"The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed toward the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it"
This criterion was not satisfied because the defendant local authority in the present case did not delegate to the BAC the function of daily care and protection of the claimant: rather, the defendant discharged its duty in that regard by placing the claimant with the BAC.
The limitation issue
The claimant had submitted that the court should exercise its discretion under section 33 of the Limitation Act 1980 to permit the claim to proceed, notwithstanding that it was issued outside the primary limitation period. Cavanagh J would consider that point as it was possible that this case might go to appeal. He referred to the following cases :-
- RE v GE  EWCA Civ 287
- CD v Catholic Child Welfare Society & others  EWCA Civ 2342
- Cain v Francis  EWCA Civ 1451,
- AS v Poor Sisters of Nazareth  UKHL 32
Cavanagh J said that even if he had not found in the defendant's favour, he did not think that the defendant would have been significantly disadvantaged in relation to the liability issues by the delay in issuing proceedings. This was because there were no important relevant witnesses whose recollections had faded, and there were no lines of evidential enquiry which had been closed off to the defendant by the effluxion of time.
As regards the non-delegable duty issue, this was a pure point of law, decided by reference to the Supreme Court authorities, the statutory framework, and the undisputed facts. This meant that the defendant had not been disadvantaged by the effluxion of time.
So far as the vicarious liability issue is concerned, this point did require some examination of the facts, because it depended on the nature of the relationship between the defendant, on the one hand, and the Company and John Allen, on the other. However, the court was not disadvantaged by the absence of detailed evidence on this matter. The fundamental nature of the relationship between the defendant and the Company was clear and undisputed.
In relation to the question whether the sexual abuse actually took place, there was no issue between the parties.
The issue of assessment of damages did not arise. Even if it had done so, Cavanagh did not think that in the unusual circumstances of this case, the defendant would be significantly disadvantaged by the delay in commencing these proceedings. The defendant’s counsel accepted that the defendant had not been significantly disadvantaged by evidential difficulties relating to remedy, and did not seek to rely on any such difficulties as part of his argument based on evidential prejudice.Cavanagh J said that in his view, the defendant was right to make this concession. If damages had been an issue, it is true that there would have been difficult issues of causation. It would have been difficult to work out the extent to which the claimant's difficulties were the result of the abuse that he had suffered at the hands of John Allen. However, Cavanagh J did not think that it would have been significantly easier to resolve these difficulties if the claimant's claim had been issued before the expiry of the primary limitation period.
The sheer length of the delay was not a good reason, in itself, to decline to extend time, in circumstances in which, for the reasons already given, the defendant was not prejudiced by the delay.Moreover, in the particular circumstances of this case, Cavanagh J did not think that the reasons for the delay meant that he should decline to extend time.
The trigger for the present proceedings was that the claimant's former solicitors contacted him in December 2016 to inform him that, in light a change in the law, there was now a chance of obtaining compensation from the local authority that had placed him in the BAC. He and his legal advisers acted swiftly thereafter, issuing his claim in February 2017 (it was subsequently stayed pending the outcome of the appeal to the Supreme Court in Armes).
However, for the reasons above, the claim would be dismissed.