EL v The Children’s Society 24.02.12
The operator of a care home was not vicariously liable for alleged child abuse by the employees’ son. In addition, the claim would have failed on limitation grounds in any event.
This case provides some comfort to voluntary organisations and local authorities who have used the services of unpaid helpers whose actions have not been sanctioned by them. It also reinforces the benefit of ensuring issues of vicarious liability and limitation are heard by the court at the same time. It is perhaps the beginning of a slight rowing back of vicarious liability in abuse cases, which arguably reached the high water mark in Lister v Hesley Hall Ltd .
The Children’s Society ran a home for boys and girls in Southport called Francis Pochin House (FPH). From 1954 to 1959 the housemaster and matron were Mr and Mrs Bibby. They had a son, Frank, who was 15 and a half years old when his parents moved to FPH. The Claimant was born in 1944. He was taken into the Defendant’s care and was placed at FPH for two periods – the first from 1949 to 1951 and the second from 1956 to 1959.
In mid 2008 the Claimant alleged that, whilst he had been in care at FPH on the second occasion, he had been sexually assaulted (including rape) by Frank Bibby. In July 2009 the police arrested Frank (then aged nearly 72 years old), who admitted masturbation with three boys at the home but denied he had raped the Claimant. Frank committed suicide in July 2010. His relatives settled the claim against his estate by the Claimant for £10,000. The Claimant maintained his claim against the Children’s Society.
- Vicarious liability - Mr Justice Haddon-Cave held that the Claimant’s case on vicarious liability failed. He was not satisfied on the evidence that Frank was ever left in charge of FPH, whether formally or informally. There was no evidence that he was ever engaged by his parents to act as their relief. In addition, it was accepted by the Claimant that on each occasion when abuse was committed, Mr and Mrs Bibby were also in the house. It followed that the abuse did not take place when Frank was engaged as a temporary relief. Frank was at FPH because he happened to be the son of the houseparents and FPH was his home. In so far as he used his “position” to commit acts of abuse, it was his status as the houseparents' son which gave him an “air of authority” and nothing else. The evidence did not begin to satisfy the fact-sensitive test of vicarious liability in Lister v Hesley Hall Ltd. If anything, the evidence pointed to a conclusion of positive non-employment of Frank by the Defendant.
- Limitation - Haddon-Cave J stated his views on limitation, in case he was found to have been wrong on the issue of vicarious liability. The primary limitation period had expired on the Claimant’s 21st birthday in 1965 and so the claim had been brought 46 years out of time. The Judge considered in particular the effect of delay on the issues of vicarious liability and the extent of the abuse. In his view, with the passage of half a century and in the absence of the accused himself, a fair trial of the abuse issue would not be possible. On this basis, even if he had found for the Claimant on the issue of vicarious liability, he would have declined to exercise his discretion to extend the limitation period under s.33 Limitation Act 1980.
View our recent review of the law on vicarious liability.