Vicarious Liability Remains On The Move

Armes (Appellant) v Nottinghamshire County Council (Respondent) [2017] UK SC60.

This decision of the UK Supreme Court, handed down in October 2017, should be carefully considered by organisations which facilitate contact between individuals. Why? Because it may extend their liability for the actions of non-employees.

In Armes, the Supreme Court concluded that a local authority could be vicariously liable for abuse carried out by foster carers; while in their own homes and beyond the day-to-day control of the local authority.

The facts and circumstances of the case

The claimant was placed in foster care by the local authority in 1985 at the age of 7. While in care, she was abused in two separate foster homes.

She raised an action for damages against the local authority. She did not argue that the local authority had been negligent in vetting, selecting or supervising the foster carers. Instead she argued that the local authority was either or both, vicariously liable for the actions of the carers and in breach of a non-delegable duty of care for her wellbeing.

At First Instance (the original hearing) it was found, and not challenged thereafter, that Section 33 of the 1980 Limitation Act (which determines whether actions in England and Wales are time-barred) should operate so that the claim was allowed to proceed even though it was otherwise time-barred. However, at First Instance and on appeal to the Court of Appeal, the claimant failed on the grounds of fault advanced.

She ultimately appealed to the Supreme Court where Lord Reed gave the leading Judgment. Lady Hale, Lord Kerr and Lord Clarke agreed with Lord Reed and Lord Hughes dissented.

Non delegable duty of care

Lord Reed held that a non-delegable duty will only be applied in exceptional circumstances. He narrowed the question in this case down to whether the duty was one which the local authority was bound to perform itself, or one which it was bound to arrange to have performed by others. He ultimately concluded that the local authority was not under a duty to care for the child but rather to arrange, supervise and pay for someone else to do so. Accordingly, there was no failure in that duty. In so doing, the court refused to extend the principles of non-delegable duty set down in Woodland v Essex County Council [2013] UKSC 66 (where the local authority was found liable for the actions of a third party supervising a school child who got into difficulties during a swimming lesson)...