Vicarious liability is alive and well

This decision extends the doctrine of vicarious liability in respect of foster carers for the fist time and it represents another example of the potential for the expansion of this form of liability.

The Supreme Court demonstrated the value of consistency through following and applying earlier reasoning of previous cases when, in Armes (Appellant) v Nottinghamshire County Council (Respondent) 2017, it applied the principles set out in Cox v Ministry of Justice (2016).


In Armes the appellant was in the care of the respondent local authority for a number of years through to her late teens. Nottinghamshire County Council placed her into foster care with a Mr and Mrs A between 1985 and 1986, and with Mr and Mrs B between 1987 and 1988. Mrs A had physically and emotionally abused the appellant. The appellant had been sexually abused by Mr B. It was accepted that the local authority were not negligent in the selection or supervision of the foster parents, but that they were nevertheless liable for the abuse perpetrated by her foster carers. She claimed that the local authority were liable for the abuse, either on the basis that they were in breach of a non-delegable duty, or on the basis that they were vicariously liable for the wrongdoing of the foster parents. Her claim was dismissed by the High Court and the Court of Appeal.


By a majority of 4-1 the Supreme Court allowed the appeal, finding the local authority vicariously liable for the abuse committed by the foster parents. The Court did not accept the argument that the local authority were liable on the basis of a non-delegable duty preferring to deal with the matter on the basis of the principles of vicarious liability. Lord Reed gave the lead judgment, with which Lady Hale (Deputy President at the time) and, Lord Kerr and Lord Clarke agreed. Lord Hughes dissenting. Lady Hale and Lord Reed both sat in the cases of Cox and in the case of Armes.


This is not the first time that alleged sexual and physical abuse of children has been the subject of proceedings before the Supreme Court. In the 2012 case of The Catholic Child Welfare Society and others (Appellants) v Various Claimants (FC) and The Institute of the Brothers of the Christian Schools and others (Respondents), the Supreme Court gave guidance on the sort of relationship which may give rise to vicarious liability. A relationship outside of an employee and employer situation it seems is capable of giving rise to vicarious liability, and the Court took the opportunity in the Christian Brothers case to give further guidance on the nature of that relationship if it was indeed to be brought within the gambit of vicarious liability in tort proceedings.


The general approach described in Christian Brothers was not intended to be confined to child abuse cases and sets out the factors or circumstances in which vicarious liability may in principle be imposed outside employment relationships. In effect, the judgment and the guidance afforded extends the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment. We are told in effect that this is quite deliberate on the part of the judiciary on policy grounds in order to ensure a measure of protection for victims of torts.


Looking back to Cox (Respondent) v Ministry of Justice (Appellant) we are reminded that the Respondent in that case, Mrs Cox, worked as the catering manager at HM Prison Swansea and that she was in charge of all aspects of the catering, including the workings of the kitchen producing meals for prisoners. Prisoners also worked in the kitchen alongside other civilian catering staff and it was Mrs Cox's job to supervise these prisoners in the kitchen. Mrs Cox had been injured as a result of some goods being dropped on her by a prisoner whilst working in the stores. The Court saw the working of the prisoners in the kitchen as an integral part of prison life and they had no difficulty in applying the integral or organisation test and they took the view that the work of the prisoners was an integral part in the provision of meals to prisoners. The prison service was found to be vicariously liable to Mrs Cox. Vicarious liability can apply outside of the relationship of employment and Lord Reed reminded the Court that “As was explained in Cox and in the earlier case of the Christian Brothers, however, the doctrine can also apply where the relationship has certain characteristics similar to those found in employment, subject to there being a sufficient connection between that relationship and the commission of the tort in question.”


Applying the principles set out in Cox v Ministry of Justice [2016] to Armes (Appellant) v Nottinghamshire County Council (Respondent) (2017) on the imposition of vicarious liability, the Supreme Court found the local authority vicariously liable for the acts of the foster parents in the present case. Lord Reed explained their reasoning:


Integration and business activity: The Court noted in particular that Nottinghamshire CC were instrumental in carrying out the recruitment, selection and training of foster parents. This extended to paying their expenses through allowances. Lord Reed also mentions that “The foster parents were expected to carry out their fostering in cooperation with local authority social workers, with whom they had at least monthly meetings. The local authority involved the foster parents in their decision-making concerning the children, and required them to co-operate with arrangements for contact with the children’s families”.;


Lord Reed then went on to show that it may not be possible to give a definitive answer in terms of split responsibilities when he said “If one stands back from the minutiae of daily life and considers the local authority’s statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child, in order for her to receive care in the setting which they considered would best promote her welfare. In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority”. This approach seems to have led to a conclusion that included the council in responsibility for what went wrong and the abuse was seen as committed by the foster parents against the claimant and took place in the course of an activity carried on for the benefit of the local authority;


As regards the creation of risk, Lord Reed was also clear on this point stating “…..the local authority’s placement of children in their care with foster parents creates a relationship of authority and trust between the foster parents and the children, in circumstances where close control cannot be exercised by the local authority, and so renders the children particularly vulnerable to abuse.”;


Control: The lack of sufficient control being one of the primary reasons why the Court of Appeal did not find in favour of vicarious responsibility was addressed by Lord Reed directly and he concluded that the local authority exercised a significant degree of control over the foster parents: it exercised powers of approval, inspection, supervision and removal. Lord Reed was of the view that vicarious liability may arise in relation to the provision of elements of family life as was apparent with such cases as Lister v Hesley Hall Ltd (2002); E v English Province of Our Lady of Charity (2013) as well as the Christian Bothers case but that Micro-management, or a high degree of control, is not necessary for the imposition of vicarious liability;


Ability to pay damages: Lord Reed spoke plainly, making the point that most foster parents have insufficient means to meet a substantial award of damages, whilst local authorities can more easily compensate the victims of abuse;


Public interest and impact: Lord Reed found it difficult to accept that by imposing vicarious liability this would impact upon policy decisions such as where to place children thereby discouraging local authorities from placing children in care with foster parents, and encouraging them instead to place them in residential homes, at much greater cost;


This is a significant decision for local authorities and their insurers as well as victims as it not only extends the doctrine of vicarious liability in respect of foster carers for the first time, it also represents another example of the potential for the expansion of this form of liability.



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