NA -v- Nottinghamshire County Council EWCA Civ 113
In a climate where it seems that the courts are intent on expanding the range of scenarios in which a local authority can be liable for historic sexual abuse, the public sector breathed a sigh of relief at the Court of Appeal’s recent decision in NA -v- Nottinghamshire County Council. Kate Bain reviews the case and its implications for local authorities and their insurers.
At trial in this case in 2014 it was decided that a local authority could not be liable (without fault) for abuse which occurred whilst a child in its care was placed with foster parents. The fact that the social workers involved had not been negligent themselves meant that no liability could attach to the local authority. The local authority could not be said to be vicariously liable for the foster parents’ actions and there was no non-delegable duty of care upon them whilst the child was placed with foster parents.
Thankfully, the Court of Appeal upheld this decision, although the reasoning behind it was altered slightly and not all of the judges put forward the same views.
The Court of Appeal held that a local authority cannot be held vicariously liable for the actions of foster parents as the relationship between the local authority and the foster parents is not sufficiently similar to an employment relationship. The very valuable nature of the foster parent role in providing family life meant that the local authority had insufficient control over or proximity to the foster parents’ actions. The local authority could not provide family life itself and for it to exercise control over this would defeat the very object of the exercise.
The existence of a non-delegable duty of care in this scenario was also rejected, albeit for various different reasons. Amongst the reasons given by the judges were:
- the fact that the local authority itself would not be able to provide family life (as distinct from the position in theWoodland case which concerned subcontracted swimming lessons);
- that it would be contrary to public policy to impose such a duty in this case; and
- that it was unfair to impose such a wide duty which would lead to very harsh strict liability.
Helpfully, the Court of Appeal clarified that a non-delegable duty of care can arise only in relation to negligent acts, not criminal ones (a situation which is dealt with by vicarious liability in any event).
This decision provides very welcome clarification and limits the long list of scenarios in which a local authority can be held liable for the actions of others. The discussion around public policy may hopefully signal a more conservative, limiting approach amongst the judiciary in a climate where the number and variety of historical abuse claims are ever-increasing.