ABC v West Heath 2000 Ltd & Whillock - Teacher and School's Liability for "sexting"

Article

24 June, 2016

A Claimant has been awarded £25,000 by the High Court for the psychological harm caused to her by being encouraged to send explicit, sexual text messages and images of herself to the Vice-Principal and Child Protection Officer at a Special Educational Needs School that she attended in Kent.

Facts: The Vice Principal began sending inappropriately intimate emails to the Claimant in 2007 and, by 2009, was calling her late at night when she was in bed. The Claimant's home life was of concern, and in 2009 she was placed on the Child Protection Register under the categories of emotional and physical abuse. She was also known to suffer from severe epilepsy and behavioural problems including communication and memory difficulties.

In early 2010, the Claimant's mobile phone was found by another member of staff, who discovered some 18 sexually explicit text messages and 20 indecent photographs sent by the Claimant to the teacher. As a result of this discovery, the Claimant took an overdose. She was suffering acute distress. She was diagnosed with Adjustment Disorder with signs of Personality Disorder, anxiety, social difficulties with her peers and a decrease in her self-confidence and self-esteem.

Case: The Claimant's medical experts agreed that the Claimant turned for help to a man who exploited her vulnerability and breached the boundaries of an appropriate teacher-student relationship. She sued the Vice Principal for damages for personal injuries caused by sexual assault, rape, grooming and sexting.

Sir Robert Nelson found that the three elements of the tort of intentional infliction of harm under Wilkinson v Downton (conduct, mental, and consequence) were made out by the Vice Principal; firstly emotionally manipulating the Claimant and encouraging her to send indecent images of herself to him, then engaging with her in sexual banter in text messages. These were held to be actions whose consequences or potential consequences were so obvious that the teacher cannot realistically say that they were unintended (Rhodes), even though he claimed that this was not his intention.

The Court awarded damages for pain, suffering and loss of amenity at £35,000, which included compensation for the sexual assaults. Sir Robert Nelson clarified that the "Rhodes" element of the claim was quantified at £25,000.

Forbes Comment: Increased use of social media and information technology by children and young people inevitably exposes them to additional dangers and creates the environment for a new type of risk which schools need to be alive to. The Court held that the intention to cause emotional or mental distress was enough for liability to attach to the school, without any physical assault. As such the law regarding the causing of intentional harm has been expanded, leaving schools more vulnerable to claims of vicarious liability. Schools should review their staff training, their safeguarding and social media policies to ensure robust risk management. If this happens, the school will be liable due to the doctrine of vicarious liability, so all we can do is work hard to make sure that it doesn't.

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