Vicarious Liability ' Two Important Judgments From The UK Courts

• Published date: 26 May 2020
• Author: Mr Séamus Given, Emma Dunne and Hannah O'Farrell
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Trials & Appeals & Compensation
• Law Firm: Arthur Cox

Two important judgements have recently been handed down in the UK in relation to vicarious liability.

On 18 February 2020, the Court of Appeal of England and Wales in Haringey London Borough Council v FZO [2020] EWCA Civ 180 upheld a High Court decision that a school was vicariously liable for the sexual abuse perpetrated by a teacher against a student for acts perpetrated both at school and after the claimant left the school.

On 1 April 2020, the Supreme Court in Barclays Bank plc v Various Claimants [2020] UKSC 13 allowed an appeal from the Court of Appeal and held that the traditional common law principle that a person will not be liable for the acts of an independent contractor, i.e. one who is carrying on business on his own account, still applies.

Haringey London Borough Council v FZO [2020] EWCA Civ 180

The claimant sought damages for sexual abuse committed by a teacher at Highgate Wood School in London between 1980-1982 and then again in 1983-84 (when the claimant was a pupil at the school). The claimant alleged that the assaults continued after the claimant had left the school, until 1988. Although the abuse ended in 1988, the claimant continued to have contact with the teacher until 2012. The claimant issued proceedings against the teacher directly and against the local authority employing the teacher, which it claimed was vicariously liable for his actions. The claimant was successful in the High Court and recovered '1.1m for injuries and losses which were held to be a direct result of the abuse. The local authority appealed this decision on the grounds of limitation, consent and, the most interesting from an employment law perspective, vicarious liability, claiming that the trial judge erred in law by holding the school liable for assaults which occurred after the claimant had left the school.

Court of Appeal Finding

In considering the issue of vicarious liability, the judge at first instance applied the two stage test emerging from recent decisions of the UK Supreme Court in Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56and Mohammed v Wm Morrison Supermarkets plc [2016] UKSC 11. This test provides that for vicarious liability to arise there must be:

1. a relationship between the parties capable of giving rise to vicarious liability, such as employment, throughout the relevant period; and
2. a sufficient connection between the act or omission of one party and the relationship between the parties.

On appeal, the...