The High Court has held that a local authority was not vicariously liable for abuse committed by an employee of a private children’s home run by an independent corporate sub-contractor. The court also held that the local authority did not have a non-delegable duty in respect of the child’s day-to-day care under s.2 of the Child Care Act 1980. This will be of wider interest to those providing support to public bodies in discharging their public duties.

Background

In SKX v Manchester City Council [2021] EWHC 782 (QB), the claimant was one of a number bringing a claim against the local authority for historical sexual abuse by an employee of the private children’s home the local authority had placed the claimant at in the 1980s. An earlier claim against the private children’s home itself had been unsuccessful. The claimant alleged that the local authority was vicariously liable for the acts of the private care home employee, or alternatively owed a non-delegable duty of care to the claimant under the 1980 Act.

The nature of the relationship

Recent decisions on vicarious liability have extended and defined the scope of the first limb of vicarious liability to include not only an employer/employee relationship, but also relationships akin to that, such as: teachers that were unpaid but bound by solemn lifelong vows in Christian Brothers [2012] UKSC 56; foster carers in Armes v Nottinghamshire County Council [2017] UKSC 60; and independent medical practitioners in Barclays Bank v Various [2020] UKSC 13. In this case, there was a contractor/sub-contractor relationship, which was similar to the situation in Barclays, save that the sub-contractor was a limited company rather than a sole practitioner. The private care home was independent of the council, with a separate corporate structure. The court applied the comments of Lady Hale in the Armes decision to the effect that, if it was clear that a party is carrying out his own independent business, it is not necessary to consider the relationship any further. In both cases, the relationship was insufficient to amount to a relationship akin to that between an employer and employee, so no vicarious liability could exist.

Child Care Act duty

The court also considered whether the local authority had a non-delegable duty under the Child Care Act 1980 on a similar basis to that in Armes. Although the specific duty that was alleged to be non-delegable in this claim was different, namely the general duty to provide for abandoned children under s. 2 rather than the duty under s. 21 to provide accommodation for children under the local authority’s care, the same principle applied. The local authority was only responsible for arranging the care of the child, not for the child’s specific day-to-day care. In reaching this view, the court applied Woodland v Swimming Teachers Association and others [2013] UKSC 66.

Comment

This decision adds to the bank of authorities informing potential parties on how a public authority might be vicariously liable for a breach by its sub-contractor of a duty it has sought to delegate and whether that public body could be liable for wrongful acts of a third party under their non-delegable duties. It will be of particular interest to those in the private sector involved in providing services such as childcare, health care, medical services and the like to augment or replace public provision. It should be noted that had the court been with the claimant on vicarious liability and the non-delegable duty points, it would have allowed the claim to proceed and not ruled it time-barred, despite the passing of over thirty years since the alleged abuse.