The boundaries of vicarious liability have been stretched and defined through recent judgments, and at the point of writing this alert we await the Supreme Court's judgments in Wm Morrisons Supermarkets plc v Various Claimants and Barclays Bank plc v Various Claimants.
On 18 February 2020, the Court of Appeal handed down its judgment in Haringey London Borough Council v FZO, the claim relating to historic sexual assaults of a student by a teacher (who had pleaded guilty at criminal trial) who taught at the school he attended.
The local authority appealed against the first instance judgment, in which the Claimant had recovered £1.1m in damages, the appeal grounds including questions of limitation, consent and vicarious liability.
On limitation, the local authority sought to assert that the Claimant lacked credibility in order to show that it would be inequitable for the limitation period to be disapplied. In order for the judge to assess the credibility of the Claimant, it took the risk that the judge would hear all of the evidence in order to assess the relative credibility of witnesses, as she did in this case. Having heard the evidence, noting that there was no evidence of prejudice to the local authority through the delay (no missing witnesses being identified and the medical experts being in a position to advise) the judge exercised her discretion, disapplied the limitation period and allowed the claim to be pursued.
Insofar as consent was concerned, the Claimant was manipulated into submitting to sexual activity (and did not consent to it), and through psychological coercion continued to submit after he had left the school until his early 20s.
The question of vicarious liability, the school employing the abusing teacher, was considered in the light of the tests set out in Various Claimants v Catholic Child Welfare Society. The employment relationship between school and teacher, combined with the connection between the abuse by the teacher and his employment duties (notwithstanding the fact that many of the abusive acts occurred away from the school) was found by the trial judge to cause the school to be vicariously liable for the actions of the teacher even after the Claimant left the school, the findings being upheld by the Court of Appeal.
The injury suffered by the Claimant was found by the trial judge to be complex PTSD, this being one of the first judgments in which this condition has been recognised. General damages were awarded taking into account the effect of the abuse when it was perpetrated, the effect of the abuse before the Claimant suffered a breakdown and the impact of the breakdown; including an element of aggravated damages to reflect the conduct of the teacher, damages for pain, suffering and loss of amenity were £85,000. Including past lost earnings (£236,000), past treatment (£127,000), future loss of earnings (£423,000) and future medical costs (£229,000) the damages awarded in this matter totalled £1,112,000.
The Court of Appeal upheld the trial judge's judgment in this claim. The extent to which the forthcoming Supreme Court judgments will flex the boundaries of vicarious liability remains to be seen.
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