| SPOTLIGHT |
The Court of Appeal has dismissed a woman’s appeal over a school’s vicarious liability for sexual abuse by an individual on a work experience placement.
In MXX v A Secondary School [2023] EWCA Civ 996, Lady Justice Nicola Davies found for the claimant in respect of three grounds but for the defendant school in respect of a fourth. She said: “I find that the defendant is not vicariously liable for the torts of PXM as they do not satisfy stage two of the test for the imposition of vicarious liability.”
Outlining the background to the case, the judge noted that defendant is a co-educational secondary school. In December 2013 the claimant, then aged 13, joined the school.
In MXX, the tortfeasor ("PXM"), one of the defendant's former pupils, undertook a Work Experience Placement (WEP) at the school.
PXM was aged 18 and attending college hoping to qualify as a PE teacher. By early March 2014 PXM and the claimant were communicating on Facebook and exchanges continued until September 2014.
In August 2014 PXM committed the torts of assault and battery against the claimant. In September 2014 he was arrested and on 2 November 2015 PXM pleaded guilty to sexual activity with a child, said the judge.
The claimant sought damages of £27,500 for personal injury (recognised psychiatric illness) consequent on the sexual assaults.
On 19 August 2022 HHJ Carmel Wall, sitting as a Deputy High Court Judge, dismissed the claim, holding that the defendant was “not vicariously liable” for the torts committed against the claimant by PXM.
Lady Justice Nicola Davies said: “The Judge identified the starting point for findings of fact as the contemporaneous documentary evidence which included police interviews and the Facebook messages between the claimant and PXM.
“The recovered messages begin in July 2014; the claimant said that previous messages had been exchanged but she deleted them at the instigation of PXM who wanted to ensure that their relationship remained a secret. The first time PXM sent the claimant indecent images of himself was on 4 July 2014.”
The claimant's pleaded case as to the first interaction between herself and PXM focused upon his suggestion to her that she should attend the school's badminton club.
Lady Justice Nicola Davies noted that prior to commencing his work experience placement, PXM attended an induction meeting with CD (Head of the PE Department in 2014) and was told by CD that he would have to be with a member of staff at all times.
PXM was required to sign a form headed "Staff Declaration" which confirmed that he had read the guidance and understood his responsibility for child protection at the school. The declaration he signed was that for all employed staff.
Lady Justice Nicola Davies said: “The Judge accepted CD's evidence and found that (i) The defendant's expectations of PXM were that he would provide some limited help with lessons by running warm-ups, coaching groups of students under guidance, assisting with sorting out equipment, washing bibs and the "general day to day PE stuff".”
She added: “As to the interaction between PXM and the claimant, the Judge found (i) There were two occasions when the claimant had some interaction with PXM, the first was when he suggested to her that she attend the after-school badminton club, the second was the club session itself. PXM and the claimant had some conversation which led to the claimant attending the badminton club. […] Nothing untoward occurred, it was a brief meeting.”
HHJ Carmel Wall found that “The Claimant does not satisfy me that the interactions between herself and PXM at the badminton club amounted to grooming behaviour. There is no sufficient basis to infer that by this time PXM was engaging with the Claimant for any ulterior purpose.”
She also found: “PXM did not carry out any grooming activity at this second meeting with the Claimant nor at any time while undertaking his WEP with the Defendant.
“By 5 March 2014 the Claimant and PXM had a social media connection because they had become Facebook friends. It is not suggested that there was any social media contact between the Claimant and PXM before he had completed the WEP and I find accordingly.”
HHJ Carmel Wall “expressly did not find that prior to late April 2014 there was any significant communication between the claimant and PXM either in content or frequency”, said the Court of Appeal judge.
She added that the school did not dispute that PXM committed acts of assault and battery at the time he sexually abused the claimant.
“The Judge was satisfied that the torts were committed on 2 and 5 August, and it was possible they were committed on later occasions. A battery occurred each time PXM committed a sexual assault upon the claimant, and assault immediately preceded each battery”, she said.
Turning to the issue of vicarious liability, HHJ Carmel Wall identified the two stage test for the imposition of vicarious liability. Stage one: was PXM in a relationship with the defendant that was akin to that between an employer and employee?
Stage two: is there is a sufficiently close connection between the relationship between PXM and the defendant and the wrongdoing perpetrated against the claimant such that the "wrongful conduct may fairly and properly be regarded as done by the [tortfeasor] while acting in the ordinary course of the firm's business or the employee's employment”.
As to stage one, HHJ Carmel Wall found that there was “not a relationship akin to employment”.
Lady Justice Nicola Davies said: “The Judge rejected a submission that PXM's role was integral to the defendant's business; the "very limited" role he played in the school's activities barely went beyond his own learning. It was "artificial to describe PXM as performing a teaching role or even that of a classroom assistant. […] It followed that it would not be fair, just or reasonable to conclude that a WEP with the defendant of one week's duration in the circumstances amounted to a relationship akin to employment.”
HHJ Carmel Wall concluded that even if the first stage had been established, the second stage was not satisfied. She found that the most that could be said about the relationship between the defendant and PXM was that it provided an opportunity for PXM to meet the claimant which was not sufficient to satisfy the second stage of the test for vicarious liability.
Outlining the grounds of appeal, Lady Justice Nicola Davies noted that the claimant argued Judge Wall was wrong:
(1) to conclude that the entirety of the wrongdoing occurred many weeks after PXM's relationship with the defendant had ceased;
(2) to find that the conduct and mental elements of the tort of intentional infliction of injury were not made out until after the end of PXM's placement at the school;
(3) to find that the relationship between the defendant and PXM was not akin to employment;
(4) to find that PXM's torts were not sufficiently closely connected with his relationship with the defendant so as to give rise to vicarious liability.
Lady Justice Nicola Davies granted permission to appeal on all grounds on 31 January 2023.
Turning to Ground 1, she said: “At the core of this ground of appeal is the contention that the Judge erred in not including or addressing the final sentence in the Facebook exchanges between PXM and the claimant on 18 August 2014 which read: "I tried but I couldn't find your class, what about the other two lads that did work experience after me, we're they hot? Xx".
Discussing the ground, she said: “Given the care which the Judge brought to this judgment, I have difficulty understanding why the response of PXM to the last quoted message of the claimant was not included. […] In my view, this message was clearly relevant to any finding as to what PXM was thinking and doing during his WEP.”
Allowing ground 1, she concluded: “In my judgment, this was relevant evidence which was at the core of the claimant's case as to what took place during the WEP. […] I regard the absence of any such consideration by the Judge as representing a demonstrable failure to consider relevant evidence.
“The failure by the judge to address the matters provides a basis for intervention by this court. In the absence of consideration of this relevant evidence, I am unable to conclude that the findings made by the Judge namely that grooming behaviour by PXM did not take place during the WEP […] and that before late April 2014 at the earliest there was no significant communication between the claimant and PXM are supportable.”
Turning to ground 2, Lady Justice Nicola Davies noted that the claimant and the defendant accepted that success upon ground 2 was “dependent upon findings by this court that the grooming behaviour of PXM commenced during the WEP and that his ulterior motive was to foster a relationship with the claimant”.
Discussing the ground, she said: “The Judge was satisfied that the tort of intentional infliction of injury was made out. The only issue in contention were her findings that neither the completed tort nor any element of it was committed during the WEP.”
She concluded: “PXM engaged in unjustified conduct while at the school in attempting to manipulate his schedule or suggesting to the claimant that she attend the badminton session in order to spend time with a 13-year-old girl whom he knew had a crush on him. I also accept that it would have been obvious to PXM from the outset that grooming the 13-year-old claimant would lead to nothing but misery for her.
“It follows that I am satisfied that the conduct and mental elements of the tort of intentional infliction of injury were made out during PXM's placement at the school. Accordingly, on the assumption that the finding of fact underpinning ground 1 was made, I would allow ground 2.”
On ground 3, the Court of Appeal judge turned back to the two-stage test for vicarious liability.
She said: “It is the claimant's case that all the features of employment were present in the relationship between the defendant and PXM save for salary. PXM's position was indistinguishable from the work of a junior PE teacher or teaching assistant.
“The defendant supports the Judge's findings that the WEP was not integral to the school's business nor performed for the defendant's benefit. PXM did not fulfil a teaching role nor that of a classroom assistant because he had no independent responsibility for any aspect of the defendant's undertaking, pupils were not entrusted to his care to any extent.”
Lady Justice Nicola Davies said it was accepted that the judge “correctly set out the law as to the two stages of vicarious liability and correctly identified the test for stage one, namely whether the relationship between the defendant and PXM was "akin to employment".”
She noted that she had “difficulty” accepting Judge Wall's rejection of the submission that PXM's role was “integral to the defendant's business”.
Concluding on Ground 3, she said: “The reality of the relationship as between the defendant and PXM was that the defendant identified the terms on which PXM would be at the school. It required him to read and accept the defendant's procedures and guidance which applied to its members of staff, it regulated PXM's time, supervised him and directed and controlled what PXM did. Pupils were told to treat him as a member of staff.
“The badminton session which the claimant attended at the suggestion of PXM was open only to pupils and staff, and PXM was not a pupil. At [115] the Judge found that "PXM assisted the Claimant to play badminton. That was the purpose of the club." I am satisfied that in undertaking the tasks assigned to him by the defendant, PXM did assist with the business of providing PE classes and after school sports clubs to the defendant's pupils. During his time at the school PXM was not a pupil nor is there any evidential basis to support an assertion that he was carrying on business on his own account.
“For the reasons given, I conclude that the Judge was wrong to find that the relationship between the defendant and PXM was not akin to employment. It follows that I am satisfied that stage one of the test for vicarious liability is made out.”
Lady Justice Nicola Davies allowed ground 3.
Finally, turning to ground 4, which argued that the Deputy High Court judge was wrong to find that PXM's torts were “not sufficiently closely connected with his relationship with the defendant so as to give rise to vicarious liability”, the Court of Appeal judge said the claimant criticised the judge's findings on two points:
The judge noted that the first point was already addressed in Ground 1.
She said: “The Judge's starting point was identified as her finding that the entirety of the wrongdoing occurred many weeks after PXM's relationship with the defendant had ceased. Given the court's conclusion in respect of ground 1, this is no longer applicable.
“The findings and assumptions of this court on grounds 1 to 3 as to the time when the grooming started and the role of PXM during the WEP differ from those of the Judge. It follows that I approach stage two of the vicarious liability test on the basis that grooming commenced when PXM was at the school, and his role at the school was akin to employment.”
Turning to stage two of the liability test, Lady Justice Nicola Davies said: “I agree with the assessment of the Judge as to the limited nature of PXM's role at the school. He had no caring or pastoral responsibility for the pupils, a factor to which considerable weight is given in previous cases.
“PXM's access to the claimant at school was limited as he was, or should have been, kept under close supervision at all times. Even allowing for the fact that PXM was to be addressed as if he was a member of staff, he held no position of authority over the pupils in the school. It was not until PXM left the school that any communication took place on Facebook and such communication was specifically prohibited by the school.”
She found that given the “limited nature” of PXM's role during the course of one week, “the facts do not begin to satisfy the requirements of the close connection test”.
Dismissing ground 4, the judge said: “The grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant's school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM.”
Lady Justice Nicola Davies found for the claimant in respect of grounds 1-3, but for the defendant in respect of ground 4.
Concluding, she said: “I therefore find that the defendant is not vicariously liable for the torts of PXM as they do not satisfy stage two of the test for the imposition of vicarious liability. Accordingly, the appeal is dismissed.”
Lord Justice Peter Jackson and Lord Justice Lewison agreed.
Lottie Winson
