15 September, 2023
The Court of Appeal has ruled in the case of MXX v a Secondary School, dismissing the claimant's appeal against a finding that the school was not vicariously liable for sexual assaults against her by a work placement student.
The defendant is a co-educational secondary school providing education for children aged 11 to 16. In December 2013 the claimant, then aged 13, joined the school. Between 24 and 28 February 2014 the tortfeasor ("PXM"), one of the defendant's former pupils, undertook a Work Experience Placement at the school. He was aged 18 and attending college hoping to qualify as a physical education teacher. By early March 2014 PXM and the claimant were communicating on Facebook and exchanges continued until September 2014. In August 2014 PXM committed the torts of assault and battery against the claimant. In September 2014 he was arrested and on 2 November 2015 PXM pleaded guilty to sexual activity with a child and two counts of causing a child (the claimant) to watch a sexual act by looking at an image of a person engaging in sexual activity.
None of the assaults took place on the school premises and indeed were during the summer school holidays some months after the one week placement had ended. However, there was some evidence that PXM may have commenced "grooming" of MXX in school, at a Badminton club he partly ran, during the week of his work experience. It was on this basis that the claimant sought to establish that the school should therefore be held liable.
At first instance the claim had been dismissed by HHJ Carmel Wall. The claimant appealed on a number of grounds, the most salient being in respect of the findings on stage 1 and stage 2 of the vicarious liability test.
At the core of the appeal was the issue of vicarious liability, arising from the tortfeasor's wrongdoing in respect of a pupil at the defendant school. In issue was how the "relationship akin to employment" test and the "sufficiently close connection" test operate in the context of a work experience placement.
Davies LJ held that, on the facts of this case, the tortfeasor's work experience was sufficiently akin to employment to satisfy stage 1, but that there was no close connection between the sexual abuse and the role delegated during the work experience. In making the finding on stage 2, Davies LJ applied the approach identified by Lord Burrows in BXB v Trustees of the Barry Congregation of Jehovah's Witnesses. She held that the close connection test was not satisfied because (i) status of itself was not enough and (ii) no pastoral responsibility or authority over pupils was involved in a work experience placement.
Perhaps the most interesting aspect of the decision is the confirmation that in respect of grooming, more than just physical proximity is required to make an employer vicariously liable for those working with children. The grooming must involve some misuse of a role of responsibility given to the tortfeasor for the child.
Of course, had PXM been a fully employed teacher both the stage 1 test (employment) and the Stage 2 "close connection" test would be satisfied and the school would have been held to have been vicariously liable. What if the work experience placement had been for 3 months rather than just a week and PXM had actually taken full P.E lessons involving MXX? Would the stage 2 test of "sufficiently close connection" then be satisfied? Let me know what you think.
Please note the claimant has asked for permission to appeal.
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