X & Y V WANDSWORTH LONDON BOROUGH COUNCIL [2006] EWCA Civ 395
FACTS:-
A boy aged 11 and a boy aged 14 were subjected to sexual abuse by the same teacher, who was responsible for their pastoral care at the school they both attended. Both suffered serious psychiatric disturbances, and neither brought a claim until after the conviction and sentence of the teacher, by which time they were in their late twenties. The court at first instance held that the claims were statute barred. The Claimants appealed to the Court of Appeal.
The Court of Appeal considered the issue of limitation and remitted these cases and two others that they considered to the House of Lords. However they made determinations in these cases on the issue of vicarious liability.
JUDGEMENT:-
The Court of Appeal considered the facts of each case and the way in which the Claimants’ cases had been pleaded.
It was accepted that the Court of Appeal was bound by authority to find that the defendant's vicarious liability for the sexual assaults perpetrated by the teacher was subject to a non-extendable six year limitation period (the statutory time limit at that time).
However, the following issues arose :-
i) Whether the trial judge was wrong to hold that it was not possible for an abuser to report anything other than physical harm to a child;
ii) Whether the trial judge was wrong not to find that the actions of the teacher which may very loosely be described as "grooming" constituted a breach of duty on his part which caused damage;
iii) Whether the trial judge was wrong to find in Y's case that the sexual abuse he suffered was not carried out in the course of the teacher's employment, or closely connected with it, because it was performed away from the school premises.
The Court of Appeal said that they were bound by their own decision in KR v Bryn Alyn Community (Holdings) Ltd & Another [2003] EWCA Civ 85 to reject the contention that the school could be vicariously liable for the teacher's failure to report what he was doing, or about to do, to these Claimants.
As to the second issue, there was in each case very long periods of time in which the teacher acted in breach of the duty of care he owed these boys. According to the evidence X gave at the trial, there may indeed have been eight episodes involving improper discussions, only two of which included intentional assaults. That showed how artificial it was to segregate the assaults from the remainder of a course of conduct which led to long-lasting psychiatric harm. In Y's case the breaches of duty of care started with initial grooming and continued with a long period of obsessive interest after the boy said "no" to any further indecent assaults. The improper course of conduct led psychiatric damage.
The psychiatric damage and consequential financial loss caused to Y resulted from a cumulative course of conduct in breach of duty that was not limited to the indecent assaults. In each case the whole of this conduct was performed in breach of the duty of care the teacher owed these two boys as their head of year with pastoral responsibilities towards them.
As to the third issue, the teacher had a measure of pastoral responsibility towards Y. The only reason why the judge rejected the contention that the Defendant should be vicariously liable for his misconduct was because the sexual acts themselves took place off the school premises. This could not in itself be sufficient to dismiss an allegation of vicarious liability. The question that had to be asked was – could the teacher's actions towards Y be fairly regarded as being performed in the course of his employment by the school? The Court of Appeal thought that they could. The facts of this case were quite different from a case that might concern the acts of a school groundsman or the acts of a teacher in the school holidays which had no connection with his responsibilities at the school. This teacher's case fell into a special category because of his pastoral responsibilities for the boys' welfare, with which his acts were closely connected. The Court of Appeal would reverse the judge's decision on this point.
FACTS:-
A boy aged 11 and a boy aged 14 were subjected to sexual abuse by the same teacher, who was responsible for their pastoral care at the school they both attended. Both suffered serious psychiatric disturbances, and neither brought a claim until after the conviction and sentence of the teacher, by which time they were in their late twenties. The court at first instance held that the claims were statute barred. The Claimants appealed to the Court of Appeal.
The Court of Appeal considered the issue of limitation and remitted these cases and two others that they considered to the House of Lords. However they made determinations in these cases on the issue of vicarious liability.
JUDGEMENT:-
The Court of Appeal considered the facts of each case and the way in which the Claimants’ cases had been pleaded.
It was accepted that the Court of Appeal was bound by authority to find that the defendant's vicarious liability for the sexual assaults perpetrated by the teacher was subject to a non-extendable six year limitation period (the statutory time limit at that time).
However, the following issues arose :-
i) Whether the trial judge was wrong to hold that it was not possible for an abuser to report anything other than physical harm to a child;
ii) Whether the trial judge was wrong not to find that the actions of the teacher which may very loosely be described as "grooming" constituted a breach of duty on his part which caused damage;
iii) Whether the trial judge was wrong to find in Y's case that the sexual abuse he suffered was not carried out in the course of the teacher's employment, or closely connected with it, because it was performed away from the school premises.
The Court of Appeal said that they were bound by their own decision in KR v Bryn Alyn Community (Holdings) Ltd & Another [2003] EWCA Civ 85 to reject the contention that the school could be vicariously liable for the teacher's failure to report what he was doing, or about to do, to these Claimants.
As to the second issue, there was in each case very long periods of time in which the teacher acted in breach of the duty of care he owed these boys. According to the evidence X gave at the trial, there may indeed have been eight episodes involving improper discussions, only two of which included intentional assaults. That showed how artificial it was to segregate the assaults from the remainder of a course of conduct which led to long-lasting psychiatric harm. In Y's case the breaches of duty of care started with initial grooming and continued with a long period of obsessive interest after the boy said "no" to any further indecent assaults. The improper course of conduct led psychiatric damage.
The psychiatric damage and consequential financial loss caused to Y resulted from a cumulative course of conduct in breach of duty that was not limited to the indecent assaults. In each case the whole of this conduct was performed in breach of the duty of care the teacher owed these two boys as their head of year with pastoral responsibilities towards them.
As to the third issue, the teacher had a measure of pastoral responsibility towards Y. The only reason why the judge rejected the contention that the Defendant should be vicariously liable for his misconduct was because the sexual acts themselves took place off the school premises. This could not in itself be sufficient to dismiss an allegation of vicarious liability. The question that had to be asked was – could the teacher's actions towards Y be fairly regarded as being performed in the course of his employment by the school? The Court of Appeal thought that they could. The facts of this case were quite different from a case that might concern the acts of a school groundsman or the acts of a teacher in the school holidays which had no connection with his responsibilities at the school. This teacher's case fell into a special category because of his pastoral responsibilities for the boys' welfare, with which his acts were closely connected. The Court of Appeal would reverse the judge's decision on this point.