MXX v A Secondary School 2022 EWHC 2207 (QB)

Rebecca Barton
Rebecca Barton

Published: February 1st, 2023

7 min read

Following on from the decision in DSN v Blackpool Football Club Ltd [2021] EWCA Civ 1352, the High Court were asked to consider principles of vicarious liability in the matter of MXX v A Secondary School [2022] EWHC 2707 (QB).

Background

In MXX v A Secondary School the Claimant, a pupil of the school, sought damages from the defendant on the basis that it was vicariously liable for a serious sexual assault that was perpetrated by PXM. PXM had been on work experience at the school some months prior.

PXM undertook one week's work experience at the school when he was 18 years old. He had approached the school to undertake the placement as he was aspiring to become a Physical Education Teacher. The placement was completed by PXM in February 2014 and the pupil, then 13, was later assaulted by PXM in August 2014. PXM later plead guilty to the assault in November 2015. The claimant sought damages of £27,500.00 claiming that the school was vicariously liable for PXM's proven torts.

Judgement

The Judge found in favour of the defendant by applying the two stage test as set out in the judgement of Lord Philips in The Catholic Child Welfare Society v Various Claimants (FC) and The Institute of the Brothers of the Christian School and others [2012] UKSC 56.

Stage 1 - is to consider the relationship between the defendant and the primary tortfeasor and to see whether it was one that was capable of giving rise to vicarious liability. The court held;

  • PXM had approached the school asking for a week's work experience. The court held that he was in fact asking for a favour and this is how the school had treated the request.
  • The defendant agreed to PXM's request because they knew him as a former pupil and believed at the time that he was a suitable candidate for a career in teaching. The defendant wanted to support a former pupil in his further education at college.
  • PXM was aged 18 and was unqualified. The main purpose of his attendance at the school was to learn from the school's teachers.
  • It could not have been intended that the school would derive benefit from PXM's presence in any real sense. Notwithstanding that he had performed some minor ancillary tasks during the placement, PXM had been supervised by the staff at all times.
  • It would not be fair, just, or reasonable to conclude that a one week work experience placement with the school in these circumstances would amount to a relationship akin to employment.

The Court held that the first stage of imposing vicarious liability was not satisfied, and the school was not vicariously liable for the torts committed against the claimant.

Stage 2 - Judge Carmel Wall concluded that there was no vicarious liability under Stage 1 of the test, however she did consider Stage 2 namely whether the abuse was 'closely connected' to PXM's duties on behalf of the school. She found that;

  • The tort was not committed as a result of activity being undertaken by PXM for the school, rather, it had been committed well after the placement had ended. The school therefore did not create the risk of PXM committing the tort. The sexual grooming and assaults had no connection with the defendant's activity.
  • PXM's activity within the school was not in any real sense part of the Defendant's business activity.
  • PXM was not given, nor was it intended that he would be given any responsibility for teaching or care of the school's pupils.
  • A person like PXM on work experience would impose a burden rather than be a benefit to the school.
  • The work experience would have only provided PXM with the opportunity to meet the Claimant, and this was not sufficient for a finding of vicarious liability.

Judge Carmel Wall therefore concluded that even if the first Stage of the test had been established the second Stage of the test would not have been satisfied.

Forbes' Comment

This case continues to follow a spate of claims which have looked at expanding the boundaries of the doctrine of vicarious liability and this is another case in which vicarious liability was not established.

Judge Carmel Wall said;

"…it is my finding that the entirety of the wrongdoing occurred many weeks after PXM's relationship with the Defendant had ceased. That is a fundamentally different factual matrix from wrongful conduct that begins while the tortfeasor is in a relationship with a Defendant and continues outside or beyond the scope of that relationship - whether out of hours or after the relationship has ended".

This judgement will be important to the many businesses, charities, local authorities and schools who welcome on to their premises those seeking work or volunteering experience. An adverse outcome may well have seriously impacted upon their willingness to offer valuable opportunities to those seeking to make an informed decision about their future career aspirations, or have severely impacted the nature and quality of work experience offered in light of the heightened risk of a VL finding should an issue arise.

As ever, each case must be looked at on its own facts. Helpfully, it would appear that the Courts are continuing to apply the two stage test when establishing vicarious liability.

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