Neither a school nor a specialist expedition company were vicariously liable for the acts of a man who raped three girls on a school expedition in Belize, while they were working and staying on his farm. The school had not failed to organise the expedition properly and neither it nor the company unreasonably failed to take precautions to prevent the attacks.
The claimants, referred to as Mary and Jane, were students at the first defendant school. They were part of a school expedition to Belize in 2005 of twelve girls aged between 15 and 17. One teacher from their school, Miss Pina, accompanied the group together with two expedition experts; former soldiers, from the second defendant, Adventure Life Signs Ltd (ALS). During the trip, the claimants and another girl in the group were raped by a local man, referred to as Aaron; a local tour guide and the owner of the farm where they were staying and working.
The claimants claimed damages agreed at £100,000. They framed their claims against the defendants as follows:
- Vicarious liability on the part of the school and ALS for Aaron’s actions. Although he was not employed by either defendant, the claimants argued that he was recruited or enlisted as part of the leadership team and entrusted with the supervision and care of the girls;
- Negligence of the school in allotting only one teacher to the group, in breach of its duty of care in deciding the organisation and structure of the expedition; and
- Negligence of both defendants in failing, through their employees, to exercise reasonable care to keep the claimants free of foreseeable harm at the hands of Aaron.
Aaron allocated tasks to the girls as the owner of the farm and explained what was to be done, but the work was carried out under the supervision of the three leaders. He was also the facilitator of the visit to a swimming pool and bar on the afternoon before the assaults, but the girls were again under the direct supervision of the leaders throughout. The nature of the relationship was not such that it was fair to hold the defendants liable for the acts of Aaron.
Planning the expedition
The guidance for schools available in 2005 was the Department for Education and Employment guide, Health and safety of pupils on educational visits. This gives a rule of thumb of a minimum ratio of one adult to ten pupils, but said that at least two of the adults should be teachers. The judge also referred to the new guidance for schools, published in December 2011, which aims to reduce the burden on schools undertaking such trips and to reduce teachers’ fears of legal action.
This group of 12 had 3 adults attached to it, but only one of these was a teacher. There was another group from the same school in the vicinity, also led by a female teacher. The judge accepted the evidence from Miss Pina and the managing director of ALS that it was better to have more technical staff on an expedition in Belize. He held that the omission of a second teacher from the group was not a breach of the school’s duty of care.
Failure to take precautions to prevent the attacks
The claimants argued that the behaviour of Aaron earlier on the day in question should have put the leaders on notice that he was grooming the girls as potential victims. They also argued that there was a foreseeable risk of a sexual assault of some kind by Aaron against one of the girls, in respect of which they failed to take precautions. The judge rejected these allegations. The initial checks the leaders took in relation to Aaron were reasonable and proportionate and the leaders had no reason to foresee the attacks. He concluded that the leaders were unaware of the risk because the ethos of the expedition was not to crowd the girls with adult supervision, but to do so from a discreet but reasonable distance. Aaron would have taken care not to alert the leaders of his intention and the girls did not report any concerns to them. Had the leaders been put on notice, the judge was satisfied that they would have refused to let him stay at the farm that night.
On the night in question, Aaron came to the claimants’ cabana where he had earlier hidden rum and lemonade. Although he was not invited in, they did not actively protest. Some of the five girls in the cabana drank and all of them kept their voices down. They socialised for more than an hour before Aaron initiated a kissing game in which at least three of the girls acquiesced. It was after this that he carried out the rapes. Short of posting a guard on the door of each cabana or instituting a system of watch-keeping, there would have been no way of defeating Aaron’s assault on the girls which he and, up to a point, they were at pains to keep from their leaders. The judge rejected the allegation of breach of duty.
Governments have been pre-occupied with the so-called compensation culture for much of the last decade. The Compensation Act 2006 restated the common law position requiring consideration of whether a “desirable activity" was involved when determining whether an allegedly negligent defendant should have taken particular steps to meet a standard of care. Lord Young’s report Common Sense, Common Safety, published in 2010, gave the issue heightened media attention once again and this year began with a pledge from David Cameron that 2012 will be the year in which the government kills off the health and safety culture for good. Judges, most of whom support the Jackson reforms which are designed to make civil litigation less attractive to claimants, are clearly aware of these policy concerns and this can be seen in their judgments.
The cases referred to above reflect the current mood, dismissing claims against schools and similar organisations where they have organised a desirable activity (see also the Court of Appeal’s rugby decision last year in Sutton v Syston Rugby Football Club Ltd). As Jackson LJ said in Scout Association v Barnes, “it is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities”. That case was, however, an exception to the trend since the other members of the Court of Appeal dismissed the Scout Association’s appeal against the decision that it was liable to the claimant for general damages of £7,000 in respect of an injury to his shoulder. The majority concluded that it could not be said that any scouting activity, however risky, was acceptable just because scouting was a very good thing. The social value of the particular activity had to be taken into account in assessing whether the activity was reasonably safe. The scout leader said that “a lot of kids nowadays prefer more excitement”, which is why he decided to turn the lights out whilst the 13 year old scouts played a competitive game which involved running around full pelt in an enclosed space with their heads down. Darkness added no other social or educative value.
Sexual abuse cases have received rather a different reception. In 2001 the House of Lords held that an employer could be vicariously liable for an employee’s acts of sexual abuse where the latter’s misconduct was so closely connected with his employment that it would be fair to impose liability (Lister v Hesley Hall). We recently considered vicarious liability claims for acts of abuse in the context of JGE v English Province of Our Lady of Charity and Trustees of Portsmouth Roman Catholic Diocesan Trust (see Insurance Update December 2011), a decision referred to in the Gravesend Grammar case. This is the first case in which the court has been required to answer the question of whether a diocesan bishop of the Roman Catholic Church can be vicariously liable for the acts of a priest within the diocese. The judge held that in principle vicarious liability could exist. The decision is being appealed.
Earlier this year, the Court of Appeal reviewed an employer’s vicarious liability for acts of violence by their employees in Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd. The outcome in these cases (the employer was liable in Wallbank but not in Weddall) was determined by the facts, and how closely related the violence was to the employment in both time and space. Both cases involved spontaneous acts of violence carried out at the place of work in response to an instruction, but in Weddall the violent employee received Mr Weddall’s offer of a shift on the phone while he was at home off-duty and drunk. Having refused to come in, the employee cycled immediately to the workplace to assault Mr Weddall. There is a sense in Weddall that the court was concerned that the law has become too generous to claimants since Lister. Pill LJ noted that the policy reasons for limiting the operation of the principle of vicarious liability are sound. However, he was concerned that as a matter of loss distribution, it may not be fair to deprive an employee of a remedy against his employer where he has been assaulted in reaction to an instruction he has given at work.
The question of loss distribution is important and one which is not addressed directly in many of the cases. Lord Millett in Lister said that vicarious liability, as a species of strict liability, is best understood as a loss distribution device based on policy considerations. The non-delegable duty discussed in Woodland is similar. The incidence of indemnity insurance was not referred to in Lister but it was in Woodland. The claimant alleged that the council had a duty to ensure its independent contractor had in place adequate liability insurance, an issue which will be determined at trial. She relied on an alleged failure of the common law to recognise such a duty on a school as providing public policy grounds for imposing a non-delegable duty of care in these circumstances, but referred to no authorities on the point.
Tomlinson LJ said that the days are long gone when we ignored the incidence of indemnity insurance. In his view, if the independent contractor and the lifeguard had liability insurance cover adequate to meet the award of damages, it was not easy to see the justification for imposing a non-delegable duty on the council. He wished to explore whether the law recognises a duty to ensure that adequate liability insurance is in place. If the case proceeds to trial, this will be the issue to watch out for.