School found not vicariously liable for sexual assault by work experience student

• Law Firm: Kennedys
• Subject Matter: Employment and HR, Consumer Protection, Health & Safety, Employment Litigation/ Tribunals, Education
• Author: Ms Carol Dalton, Emma Taylor and Katie Averre
• Published date: 18 September 2023

The UK Court of Appeal has confirmed that a secondary school is not vicariously liable for an assault committed against a pupil by a work experience student.

Background

It is important to be aware that this is a sensitive case arising from the abuse of the claimant who was a minor at the time, attending secondary school. The perpetrator was a college student (PXM) aged 18, and a former pupil of the school. In February 2014, PXM undertook a work experience placement (WEP) at the school for one week where he met the claimant. By early March 2014, the claimant and PXM had become 'friends' on Facebook and began exchanging messages which continued until September 2014. In August 2014, PXM committed assault and battery against the claimant. He was later arrested and pleaded guilty to various counts of sexual activity with a child.

The claimant sought damages for psychiatric injury, alleging that the defendant was vicariously liable for assault, battery and intentional infliction of harm.

Trial decision

The matter was heard in the High Court in August 2022 with the Judge finding that the defendant was not vicariously liable for the assault committed by PXM.

The Judge considered the three elements required to establish intentional infliction of harm following Rhodes v OPO [2015]:

• The conduct element, requiring words or conduct directed at the claimant for which there is no justification or excuse.
• The mental element, requiring an intention to cause at least severe mental or emotional distress.
• The consequence element requiring physical harm or recognised psychiatric illness.

The Judge found the consequence element was not present until the sexual activity took place in August. The conduct and mental elements were not present until many weeks after the WEP ended. As there was no evidence that PXM had the intention of exploiting or manipulating the claimant from the outset, the Judge found that intentional infliction of harm was made out but it did not occur within the WEP.

The Judge went on to consider the two stage test for vicarious liability as set out in The Catholic Child Welfare Society v Various Claimants [2012] and The Institute of the Brothers of Christian Schools and Others [2012]. Stage one was not established. PXM's relationship with the defendant was not 'akin to employment'.

Stage two, the 'close connection' test, was also not established. The role performed by PXM was very limited. He had no private access to the claimant and no caring or pastoral...