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Vicarious Liability and Non-Delegable Duty: the Tweedle-Dum and Tweedle-Dee of Strict Liability? - Lucile Taylor

18/12/17. In Armes, the Claimant had suffered physical and sexual abuse at the hands of the foster parents with whom she had been placed at aged seven whilst in the care of the local authority (“LA”). The abuse took place in the foster home in the course of day-to-day care and control of the Claimant.

The question was whether the LA was liable to the Claimant, either on the basis that they were in breach of a non-delegable duty of care (“NDDC”), or alternatively, that they were vicariously liable for the wrongdoing of the foster parents. The allegation of negligence against the LA was dismissed by summary judgment and not appealed. The remaining allegations therefore fell to be considered on the basis that the LA had not been negligent in the selection and supervision of the foster parents.

The Supreme Court held unanimously that the LA did not have an NDDC, following Woodland v Swimming Teachers Association.1 [39-49] It held 4:1, Lord Hughes dissenting, that they were vicariously liable, applying the approach adopted in Cox v Ministry of Justice.2 [59-63] The judgment resolved the anomaly that a child in foster care did not have redress against the LA on the basis of vicarious liability, whereas a child placed in a residential home did.

Whether LAs are vicariously liable for torts committed by foster parents, had not been reconsidered since S v Walsall Metropolitan Borough Council, where the question had been whether foster parents were acting as agents of the LA.3 This was rejected, and the action against the council dismissed. That case was of limited guidance, however, since in the last thirty years, the law of vicarious liability has evidently been 'on the move'.4 It was even on the move concurrent to Armes itself. In the leading judgment, reversing the decision of the lower courts on vicarious liability, Lord Reed duly noted that the Court of Appeal's decision had been made prior to the judgment in Cox. [64]

A: Non-delegable duty of care was rejected for the following reasons:

A1: There were no authorities suggesting that...

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