DJ v Barnsley Metropolitan Borough Council
[2023] EWHC 1815 (KB)
MXX v A Secondary School
25 August 2023
[2023] EWCA Civ 996
Court of Appeal
A school wasn't held responsible for a work experience student's sexual assault of a pupil, even though the student may have started grooming the pupil during the placement. The student's job was too minor, and the abuse happened after the placement ended, meaning the connection between the student's work and the abuse wasn't strong enough to hold the school liable.
Key Facts
- •MXX (appellant) was a 13-year-old pupil at A Secondary School (respondent).
- •PXM, a former pupil undertaking a one-week work experience placement (WEP) at the school, sexually assaulted MXX.
- •The assaults occurred after the WEP concluded.
- •MXX sued the school for vicarious liability.
- •The trial judge dismissed the claim, finding no vicarious liability.
- •The appeal focused on whether the relationship between the school and PXM was akin to employment and whether a sufficiently close connection existed between the relationship and the torts.
Legal Principles
Vicarious liability two-stage test: (1) relationship akin to employment; (2) sufficiently close connection between the relationship and the wrongdoing.
Catholic Child Welfare Society v Various Claimants (FC) and The Institute of the Brothers of the Christian Schools and others [2012] UKSC 56
Close connection test considers whether the wrongful conduct was so closely connected with the acts the tortfeasor was authorized to do that it can fairly be regarded as done by the tortfeasor while acting in the course of their employment or quasi-employment.
BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15
Intentional infliction of harm requires: (a) conduct element; (b) mental element (intention to cause severe mental or emotional distress); (c) consequence element (physical harm or recognized psychiatric illness).
Rhodes v OPO [2015] UKSC 32
Appellate courts will not interfere with a trial judge's findings of fact unless there's a material error of law, lack of evidentiary basis, misunderstanding of evidence, or failure to consider relevant evidence.
Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600
Outcomes
Appeal dismissed.
While the court found the trial judge erred in not considering all relevant Facebook messages, indicating grooming may have begun during the WEP, it ultimately concluded that the close connection test for vicarious liability was not met. PXM's role was too limited, and the abuse was not inextricably linked to his authorized activities during the WEP.
Grounds 1, 2, and 3 allowed (Trial Judge's factual findings regarding the timing of grooming and nature of the relationship between the school and PXM were overturned).
The trial judge failed to consider crucial evidence in Facebook messages demonstrating PXM's ulterior motives during the WEP. The court found that the relationship between PXM and the school was akin to employment, given PXM's tasks, supervision, and presentation as a staff member.
Ground 4 dismissed (Insufficiently close connection between PXM's role and the torts).
Despite finding that grooming began during the WEP and the relationship was akin to employment, the court held the connection between PXM's limited role and the subsequent abuse was insufficient to establish vicarious liability. PXM lacked pastoral responsibilities, had limited unsupervised access to the claimant, and the abuse occurred after the WEP concluded.