Vicarious liability and a fair trial

In a historic abuse case the High Court recently gave helpful guidance on the issue of vicarious liability, writes Sarah Erwin-Jones.

In EL v Children’s Society [2012] EWHC 365 EL, who was 67 at trial, alleged that he had been sexually abused between the ages of 11 and 14 at a Children's Society home called Francis Pochin House (FHP). A Mr and Mrs Bibby were Housemaster and Matron at the relevant time. The claimant alleged that in 1959 he was sexually abused by their adult son Frank.

The claimant first disclosed this to the defendant's Head of Safeguarding in the middle of 2008. He alleged he was made to perform oral sex on Frank Bibby who had then subjected him to penetrative anal sexual intercourse. This happened when Frank was either on leave from National Service or vacation from University. It was subsequently discovered that Frank Bibby was a retired Anglican priest. The police interviewed him in July 2009. During the police interview Frank Bibby admitted that he had been involved in masturbation with three boys at the home including the claimant. He was adamant however that he had not engaged in any form of penetrative sexual activity with the claimant.

Solicitors Verisona wrote a letter of claim on 26 August 2009 to the Children's Society. Their letter did not suggest that Frank Bibby was employed by the defendant. Instead it put the claim squarely on the basis of Mr and Mrs Bibby's employment by the defendant and their failure to take reasonable steps to protect the claimant. On 4 February 2010 the claimant issued proceedings against both the Children's Society and Frank Bibby. Mr Bibby committed suicide in July 2010. His relatives settled the claim for £10,000.

The claimant continued with his claim against the Children's Society pleading in Particulars of Claim dated 21.2.11, that certain aspects of the day-to-day operation of the home were delegated to Frank Bibby, who worked in the home from time to time and was used by Mr and Mrs Bibby to "discharge their responsibilities to the Claimant".

Conclusions on vicarious liability

Mr Justice Haddon-Cave found that the evidence did not satisfy him that Frank Bibby was ever left "in charge" of FHP. The judge found that the claimant was an honest witness, but that his memory had been affected by the passage of time. He said he could remember his time as FHP clearly, but the judge found that this was not the case. Crucially, the claimant had no recollection of there being any other adults at FHP, whereas the documents produced by the defendant and evidence from surviving staff clearly showed that during the year in question nine different house staff were employed in addition to Mr and Mrs Bibby and the temporary Housemaster and Matron. There was no evidence of Frank having ever been employed in any capacity.

There were two full-time assistants at FHP for much of the relevant time. One of them had been traced and, aged 85, gave evidence by video link. Her evidence was that Frank was away at college for most of the time. Another witness, from the Children's Society headquarters, provided a statement which confirmed that the records showed Frank had never been employed by the defendant and that there was no arrangement whereby Frank had control of the home.

The judge was satisfied that:

• there was no evidence Frank was ever left "in charge" of FHP;
• it was accepted that on each of the six to eight occasions when it was claimed Frank Bibby committed the abuse Mr and Mrs Bibby were also present in the house. It followed that the abuse did not take place when Frank Bibby was "engaged" as a temporary relief for his parents, since they were present in the home;
• the evidence did not "begin to satisfy the fact sensitive test" for vicarious liability.

Limitation

The primary limitation period expired on 11 February 1965. The claim was brought 46 years out of time. The claimant asked the court to exercise its discretion in his favour under section 33 of the Limitation Act 1980. The judge found that the claimant's reasons for delay were connected to profound feelings of shame, and an attempt to put his experiences to the back of his mind so as to get on with his life. However, the judge concluded that the delay had a very significant effect on both the cogency of the claimant's own evidence and the available evidence to the defendant:

• the question of vicarious liability would inevitably include an investigation as to the systems and organisation in place at the home. Apart from two witnesses there were no other surviving staff of the defendant who could be traced to give evidence of the Society's practice and procedures of the relevant time. Mr and Mrs Bibby could not be asked whether any tasks were delegated to Frank and, if so, why and on what basis;
• the few witnesses called by the claimant who had also been children at the home were elderly. The half-century which had passed inevitably affected their recollections;
• it is likely there would have been more detailed documents throwing light on the home in the late 1950s which were now long lost.

The judge found that a fair trial of the issue of vicarious liability would not have been possible. He also found that, although the claimant was trying his best to recall matters truthfully, there were significant discrepancies about the abuse itself in his evidence. Accordingly it would not be appropriate to disapply the limitation period in relation to the abuse issue.

The judge concluded whilst the claimant was deserving of every sympathy and understanding of the difficulties he experienced in his childhood, his claim must be dismissed. It just goes to show, not every claim, however honest the claimant, will be allowed to proceed, especially if it is simply not possible to have a fair trial. The defendant clearly worked hard to show this in this case and no doubt why their defence was successful.

Sarah Erwin-Jones is a partner at Browne Jacobson. She can be contacted on 0115 976 6136 or via email at This email address is being protected from spambots. You need JavaScript enabled to view it..