Public Authority Liability News - December 2011

A year of change

We are now settling in to the merged firm with our new colleagues. Everything has gone encouragingly smoothly, even down to quoting our name correctly when answering the telephone!

We continue to recruit and are pleased to welcome Mary Edis as In-house Counsel. Mary was a barrister at a set of chambers we use regularly, 1 Chancery Lane, before embarking upon a career break for her children. Mary returns with much experience and enthusiasm in defending claims brought against the public sector and she will also assist us with both inquests and criminal proceedings. Mary is very pleasant and approachable and she has already fitted in extremely well.

In terms of the law, next year will bring significant changes as a consequence of the reforms brought about by the Jackson proposals. The Legal Aid, Sentencing and Punishment of Offenders Bill, a core element of the proposals, has been approved by the House of Commons and will now go to the Lords. It is to be hoped that progress there will be smooth. The claimant lobby continues to fight emotively and hard, one group terming the proposals as "Robin Hood in reverse". Others on the claimant side appear to recognise however that change is inevitable and are working constructively towards a successful implementation of the proposals. The Government's target date remains October 2012, but there may be a modest overshoot.

The reforms are not all immediately obviously beneficial, in particular the proposal that successful defendants will no longer be able to recover their costs (or QOCS as it is unglamorously called).This may lead to a temptation to make nuisance offers. The jury is currently out as to whether the changes will mean more litigation or less, however we can be confident that overall the costs of our opponents will come down significantly.

One effect of the funding will be that claimant lawyers will be even more reluctant to bring complex speculative claims where prospects for success cannot be guaranteed. The financial rewards will not justify the time expended. As a consequence, the current trickle of stress at work, education and social services claims should not increase and may even abate.

We shall of course continue to keep you fully updated with the latest news and, more importantly, our analysis of how the reforms will affect you. This is the last Public Authority Liability News for 2011, we shall return in the early spring of next year. All that remains for us to do is wish you the very best for the festive period and the New Year. Thank you to everyone for your support this year.

Where will it end?

By Tom Walshaw

There has been a storm of publicity about a recent court case which The Daily Mail branded as one "which will have massive implications". But what was it all about?

JGE v Trustees of Portsmouth Roman Catholic Diocesan Trust (Queens Bench Division, 2011)

Introduction

It is easy to forget how far the principles of vicarious liability have widened over the last decade or so. It seems incredible but it was as recently as 1999 that in Trotman v North Yorkshire County Council, the Court of Appeal held there to be no liability on the part of the council when a teacher sexually abused a pupil in his care. It was held that the teacher was not acting in the course of his employment. Thousands who now routinely receive compensation for sexual abuse would not do so now, if the law was still as it was in the late 1990s.

Condensed history of the law:

1. Originally for vicarious liability to exist between an employee and an employer there had to be a strict relationship of employment. So, in Trotman, just mentioned, the Court said that the abuse that took place at the school was not a mode of carrying out the teacher's work. His work was to teach, not to abuse. Abusing was not a way of teaching, and therefore no vicarious liability would attach.

2. Lister v Hesley Hall Limited (2002), is the well known House of Lords authority which pushed the law wider to cover abuse. There, the warden of a boarding school had abused children in his care. His employer would have been found not liable if Trotman had been followed. However the House of Lords introduced a test of whether the wrongdoing was closely connected with the duties of the job. There the job was to supervise, and the abuse took place as a result and connected to the doing of that job. Liability attached.

3. In Viasystems v Thermal Transfer (Court of Appeal, 2005) the requirement of a direct connection between the employer and the employee was lost. A fitter's mate, supplied by one party, was working under the supervision of another party. It was held that the supervising body could be vicariously liable for the actions of the fitter's mate when he negligently caused the flood of a factory.

   So what did this new case do?

   In JGE, the question was whether the priest was an employee of the diocese, or not. In previous cases in which it was sued, the Roman Catholic Church had not challenged the principle that it was the employer, just that they were responsible for the abusive acts of their admitted employee.

   The basis of the church's defence here was that it did not employ the priest because:

1. There are no terms and conditions of employment in the traditional sense, and there is no control over the priest once appointed. The priest is free to conduct his ministry as he sees fit, and the bishop's role, if he becomes involved at all, is merely advisory, not supervisory. The bishop has no power of dismissal; dismissal would have to be effected through the Church in Rome.

2. Priests do not receive any financial support from the bishop/diocese. Each parish carries responsibility for generating sufficient income to support its own priest. That is mainly from the collection plate.

3. Catholic priests would be considered as a holder of office, rather than an employee in the legal sense. There is no formal contract of employment.

   However, the judge, in this clear first instance decision, found that despite the looseness of the arrangement the diocese was the employer of the priest.

   The judge introduced a new test of employment as follows:

   "The activities of the priest had been set in motion by the defendant in pursuance of a relationship into which the defendants had entered for their own benefit. It was their empowerment (ie, appointment) of the priest which materially increased the risk of sexual assault, the granting of the power to exploit and misuse the trust which the defendants had granted to him. It was the defendants who had introduced the risk of wrongdoing."

   So to condense further, the test becomes whether the defendants have created risk of harm to others, or set in motion events that led to the abuse.

   What are the implications of this?

   The problem is that this most recent extension in the law, whereby the question of employment is decided on the basis of the creation of a risk of harm, and the setting in motion of a relationship which is a benefit to the defendant, may usher in new categories of claims. Local authorities, for example, are currently not vicariously liable for the acts of foster parents, but those foster parents are appointed by the local authority, and it can benefit the local authority if they no longer have to have a child in say one of their care homes. Will it be long before vicarious liability attaches in that situation? And, if the law now encompasses unpaid appointees, then where will liability end?

   Compare and contrast!

   By Wendy Mayes

   The two following Court of Appeal cases show the differing approaches taken by judges in tripping claims in respect of the financial resources of highways departments, and in this article we try to explain who decided what, and why.

   First off is ... Josie Lawrence v Kent County Council (Court of Appeal, 2011)

   The claimant fell on ...

   ... a manhole cover that was protruding by around 15 millimetres above the surrounding pavement. The sole consideration at the trial was whether the defect constituted a hazard that created a reasonable foresight of harm and therefore a breach of the duty to maintain the highway, contrary to Section 41...