Vicarious Liability - Armes V Nottinghamshire County Council

Case Alert - [2017] UKSC 60

Supreme Court again considers the nature of the relationship required to find a defendant vicariously liable

Vicarious liability requires (1) the necessary relationship between the defendant and the wrongdoer, and (2) the necessary connection between that relationship and the wrongdoer's conduct. The Supreme Court first discussed the issue in Cox v Ministry of Justice. The Supreme Court referred to Lord Phillips' earlier judgment in Catholic Child Welfare in which he laid down five criteria for establishing a relationship which is "akin to that between an employer and employee", and which therefore can give rise to vicarious liability. The Supreme Court held that those five factors are not all equally significant. The 3 most important factors were: (1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant, (2) the tortfeasor's activity is likely to be part of the business activity of the defendant, and (3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor. There was also no need for the defendant to be carrying on activities of a commercial nature.

The issue in this case was whether a local authority can be vicariously liable for the torts committed by foster parents against children placed with them while in care. The Court of Appeal (deciding the case before the Cox ruling) had held that the local authority did not exercise sufficient control over the foster parents for vicarious liability to arise. The Supreme Court has now overturned that decision by a ruling of 4 to 1.

The Supreme Court held that the foster parents provided care as part of the local authority's organisation of its child care services. That in turn created a relationship of authority and trust between the foster parents and the children "in circumstances where close control cannot be exercised by the local authority, and so renders the children particularly vulnerable to abuse". It was concluded that: "although the foster parents controlled the organisation and management of their household to the extent permitted by the relevant law and practice, and dealt with most aspects of the daily care of the children without immediate supervision, it would be mistaken to regard them as being in much the same position as ordinary parents. The local authority exercised powers of approval, inspection...