PI Brief Update

A school was not vicariously liable for abuse by a man on work experience placement against the Claimant student: MXX v A Secondary School [2022] EWHC 2207 (QB) - Grace Corby, Temple Garden Chambers

19/09/22. The court rejected the Claimant’s arguments that the Defendant school was vicariously liable for torts committed against her by an 18-year-old who she met while he was on work experience placement at her school.

Facts

The Defendant is a co-educational secondary school, and the Claimant was a pupil who joined the school on 5 December 2013 aged 13. One of the Defendant’s former pupils (“PXM”) did a work experience placement at the Defendant’s school. He was then 18 and hoping to qualify as a physical education teacher.

It was agreed that PXM had committed torts against the Claimant (although not all torts were agreed). The court determined that the entirety of the torts occurred weeks after PXM’s work experience had concluded. The main area of contention in the trial was the question of whether the Defendant was vicariously liable for PXM while on work experience.

The Decision on Vicarious Liability

It was agreed that there is a two-stage test for the imposition of vicarious liability, as set out in the judgment of Lord Phillips in The Catholic Child Welfare Society v Various Claimants (FC) and The Institute of the Brothers of the Christian Schools and others [2012] UKSC 56 at paragraph 21, being:

"i) The first stage is to consider the relationship of [the Defendant and the primary tortfeasor] to see whether it is one that is capable of giving rise to vicarious liability.

ii) … What is critical at the second stage is the connection that links the relationship between [the Defendant and the primary tortfeasor] and the act or omission of the primary tortfeasor, hence the synthesis of the two stages."

The test had since been revisited and somewhat refined by subsequent decisions of the Supreme Court (see Cox v Ministry of Justice [2016] UKSC 10 which deals mainly with the first stage of the test; Mohamud v Wm Morrison Supermarkets PLC [2016] UKSC 12 which deals mainly with the second stage of the test; Barclays Bank PLC v Various Claimants [2020] UKSC 13; and Wm Morrison Supermarkets v Various Claimants [2020] UKSC 12, dealing with the second stage).

The First Stage: Was the relationship between the Defendant and PXM capable of giving rise to vicarious liability?

HHJ Carmel Well considered the matter and noted that PXM was neither employee or independent contractor. Therefore, the question was whether he was in a relationship akin to employment.

The Claimant relied on a variety of factors in alleging that the Defendant was in a position akin to employment, including that the Defendant regulated many aspects of its relationship with PXM, such as his hours of attendance; the Defendant supervised, directed and controlled PXM's activities within its school; PXM was held out to the Defendant's pupils as a staff member: they were told to address him and treat him as they would a staff member and PXM spent his break time with the staff; and the activities undertaken by PXM were of benefit to the Defendant.

The Defendant highlighted the opposite position, relying on the distinction between ‘work experience’ and ‘work’. The Defendant highlighted that PXM performed a limited role under continual supervision; PXM had a primarily shadowing role and would "help out" only under supervision; PXM's presence made the Defendant's operation of the school more onerous: he was not undertaking useful work for the Defendant. The Defendant further submitted that where, as was the case, a novel instance of vicarious liability was being sought, the court should stand back and consider whether it would be fair, just and reasonable to do so in this case. Here, it would not be.

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