Armes v Nottinghamshire County Council [2017] UKSC 60

The facts

The claimant was a former foster child who was abused physically and sexually by the foster parents that she was placed with while in the care of the defendant.

The claimant pursued a claim against the defendant, alleging that they were in breach of their non-delegable duty of care and were vicariously liable for the wrongdoing of the foster parents.

The claimant accepted that the defendant was not negligent in the selection or supervision of the foster parents.

The matter went to the Court of Appeal where Tomlinson LJ considered that the defendant had not exercised sufficient control over the foster parents for vicarious liability to arise. It was specifically stated that the provision of family life could not be part of the activity of the defendant or of the enterprise upon which they were engaged. Also, the Court of Appeal rejected that the defendant owed the claimant a non-delegable duty of care and Tomlinson LJ held that fostering was not a function which the defendant had assumed a duty to perform, instead, it was entrusted to the foster parents.

The Court of Appeal dismissed the claim.

The claimant appealed the decision and the matter went to the Supreme Court.

Decision

The Supreme Court was required to address the question of whether the defendant was liable to the claimant for the abuse which she had suffered, either on the basis that the defendant was in breach of a non-delegable duty of care or on the basis that they were vicariously liable for the wrongdoing of the foster parents.

The Supreme Court held that the proposition that a local authority was under a duty to ensure that reasonable care was taken for the safety of children, while they were in the care and control of foster parents, was too broad. It was specifically concluded that this was too onerous a duty to be placed on local authorities.

In respect of whether the defendant was vicariously liable for the acts of the foster parents; the Supreme Court considered the two key questions addressed in Cox v Ministry of Justice [2016] UKSC 10. Firstly, what sort of relationship had to exist between an individual and a defendant before the defendant could be made vicariously liable in tort for the conduct of that individual? Secondly, in what manner does the conduct of that individual have to be related to that relationship in order for vicarious liability to be imposed?

In Cox v Ministry of Justice reference was made to the five factors identified in the Christian Brothers case that would usually make it fair, just and reasonable to impose vicarious liability. These factors were:

(i) Whether the employer was more likely to have the means to compensate the victim than the employee and could be expected to have insured against that liability; (ii) Whether the tort was committed as a result of activity being taken by the employee on behalf of the employer; (iii) Whether the employee’s activity is likely to be part of the business activity of the employer; (iv) Whether the employer (by employing the employee to carry on the activity), created the risk of the tort being committed by the employee; (v) Whether the employee will, to a greater or lesser degree, have been under the control of the employer.

In respect of the first factor, it was noted that most foster parents have insufficient means to meet a substantial award of damages and the defendant could more easily compensate the victims of abuse.

In relation to the second and third factors, it was seen that the tort was created as a result of the foster carers activities, which were an integral part of the defendant’s organisation of its child care services.

Specifically, the Supreme Court held that the relevant activity of the defendant was the care of children who had been committed to their care. It was held that the defendant was under a statutory duty to care for these children and discharged this duty by recruiting, selecting and training people that were willing to accommodate, maintain and look after children in their homes as foster parents.

It was noted that the defendant inspected homes of potential foster carers before any placement was made and paid allowances and provided equipment to foster carers. Also, it was noted that the defendant provided in-service training to foster carers who were expected to carry out their fostering in cooperation with local authority workers, with whom meetings were carried out at least once a month.

As a result, the Supreme Court held that the foster parents had not been carrying on an independent business of their own because the defendant had a say in many important aspects of the arrangements. Also, it was held that the care provided by foster parents was an integral part of the defendant’s organisation of its child care services. Further, it was concluded that the abuse committed by the foster carers was in the course of an activity carried out for the benefit of the defendant.

In respect of the fourth factor, it was held that a risk was created as a result of the activity being undertaken. It was held that the defendant’s placement of children in the care of foster parents created a relationship of authority and trust between the foster parents and the children. It was seen that the defendant could not exercise sufficiently close control over this relationship, which resulted in children being particularly vulnerable to potential abuse.

In respect of the fifth factor, the Supreme Court concluded that the defendant exercised a significant degree of control over what the foster parents did and how they did it.

As a result of these findings, the appeal was allowed by a majority of 4:1.

Interestingly, Lord Hughes dissented in respect of the vicarious liability decision. His view was that if vicarious liability attached to ordinary foster carers then it also had to apply to friends and family placements, which would prevent these placements from happening in the future. Also, Lord Hughes was of the view that this decision would result in increased litigation of family activity in the courts, which was undesirable. However, the majority were of the view that this decision would not discourage local authorities from placing children with foster parents or encourage them to place children in residential homes at a much higher cost.

What this means for you

The law on vicarious liability remains on the move and covers abusive acts carried out by foster parents where a local authority has placed a child into their care.

As a result of this judgment, local authorities will be found strictly liable for proven abuse that has been carried out by foster parents even if they are not found negligent in terms of the supervision, monitoring or training provided to the foster parents etc.

This case follows on from the High Court case of Various Claimants v Barclays Bank [2017] EWHC 1929 (QB), where liability was imposed on an apparently innocent employer for the actions of an independent contractor. These recent decisions can be seen as being inevitable following the decisions of the Supreme Court in Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 and Cox v Ministry of Justice [2016] UKSC 10.

This judgment arguably places a greater burden on local authorities who will now be liable to meet this type of claim even where the actions of the foster carers could not have been reasonably known and where there was no reason to doubt the foster carer’s suitability for the placement.

Here, the claimant’s only financial remedy was against the local authority and not the foster carer directly who had insufficient means to meet the claim. As a result, if the claim had failed then the claimant would have had no redress for the abuse that they had suffered. This was a factor that was taken into account by the Supreme Court when assessing whether it was fair, just and reasonable for vicarious liability to attach.

It should be noted that the Supreme Court has not extended the doctrine of vicarious liability to local authorities where the potential abuse had been carried out by a parent or other family member where the child had been placed. However, it is possible that satellite litigation will follow in respect of this issue, which may need to be heard before the higher courts.

It should be noted that vicarious liability will continue to attach to a widening set of circumstances and a traditional employment relationship is no longer required. It can be seen that the test is now whether there was sufficient control, integration into the defendant’s business activities and creation of the risk as a result of these activities. Also, as noted above, consideration will be given to who has the financial means to meet any potential claim.