In Armes v Nottinghamshire County Council the Supreme Court has held that local authorities are not subject to a “non-delegable duty” to ensure that reasonable care be taken for the safety of children in foster care. However, the court held that where a child was sexually and physically abused by two successive sets of foster carers the local authority should be fixed with vicarious liability.

The Supreme Court, in relation to the non-delegable duty, applied the five stage test in Woodland v Essex County Council and in relation to the vicarious liability applied the two stage test set out by Lord Phillips in the Christian Brothers case and restated in Cox v Ministry of Justice.

The facts

As a child, the claimant was abused physically, sexually and emotionally by two sets of foster parents with whom she was placed, while in the care of the defendant local authority.

At first instance it was not argued that the local authority had failed to exercise reasonable care in the selection of the foster parents or in the supervision and monitoring of the placements. The claimant’s case was that the local authority was responsible for the tortious conduct of the foster parents, either on the basis of vicarious liability, or on the basis of a non-delegable duty of care. In a carefully reasoned judgment, the Judge Males rejected both arguments.

The question of the existence of a non-delegable duty of care was addressed and by the Court of Appeal and was rejected by both courts on the basis that it would impose an unreasonable financial burden on local authorities providing a critical public service. There would also be a significant financial impact on local authorities in terms of recruitment practices, training requirements and supervision, all of which might become more intensive, or on the basis that they are vicariously liable for the wrongdoing of the foster parents. Tomlinson LJ in the Court of Appeal noted that “a non-delegable duty must relate to a function which the local authority had assumed a duty to perform. Fostering was not a function which the local authority could perform: it must be entrusted to others.”

In relation to the argument of vicarious liability Judge Male considered a local authority which had exercised reasonable care in placing a child in its care with foster carers and, in supervising the placement, could not be vicariously liable for abuse perpetrated by the foster carers on the child.

The decision

The claimant appealed both findings before the Supreme Court.

The Supreme Court did not agree with the reasoning that was presented on the non-delegable duty, but nevertheless found that:

“…the proposition that a local authority is under a duty to ensure that reasonable care is taken for the safety of children in care, while they are in the care and control of foster parents, is too broad, and that the responsibility with which it fixes local authorities is too demanding.”

The Supreme Court also disagreed with the finding that there was no vicarious liability on the part of the local authority to the claimant.

The Supreme Court reiterated the doctrine of vicarious liability, setting out:

“…the law holds a defendant liable for a tort committed by another person. Plainly, the doctrine can only apply where the relationship between the defendant and the tortfeasor has particular characteristics justifying the imposition of such liability. The classic example of such a relationship is that between employer and employee. As was explained in Cox and in the earlier case of the Christian Brothers, however, the doctrine can also apply where the relationship has certain characteristics similar to those found in employment, subject to there being a sufficient connection between that relationship and the commission of the tort in question.”

Lord Reed and the court recognised the relationship between the foster parents and the local authority and stated:

“…the foster parents provided care to the child as an integral part of the local authority’s organisation of its child care services. If one stands back from the minutiae of daily life and considers the local authority’s statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child…”

The majority concluded that foster carers were sufficiently integral to the local authority’s “business activity”, and that the local authority had sufficient control over the foster carers to satisfy the relevant elements of the five stage test. Accordingly the court overturned the lower court’s decision, finding the local authority vicariously liable for the losses causes by the foster carers.

A copy of the full judgment can be found here.

Discussion

The law of negligence is fault-based, which means a defendant is personally liable only for her negligent acts or omissions. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do. This is because, as stated in Lewis v British Columbia [1997] 3 SCR 1145, a common law duty of care “does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care.” The expression “non-delegable duty” has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.

In this case the court revisited whether such an extensive duty does or should fall on local authorities. It should be noted that the heavy financial and administrative burden this would place on the 375 local authorities in England and Wales, was a factor in the Court of Appeal’s decision making, whereas the Supreme Court contented itself by examining the nature of the relationship between local authorities before determining that a non-delegable duty did not exist. Whereas the court was satisfied that proper construction of the relationship between the foster carers was sufficient to establish vicarious liability, in accordance with the principles espoused in Cox.

What this means for you

This decision is a continuation of the expansion of vicarious liability for those organisations which can afford to pay for claims. There is no doubt that abused children are worthy recipients of protection and where that fails, damages. However the fear among defendants is that the widening of vicarious liability will expose them and their insurers to ever increasing numbers of claims, especially where they have taken all of the steps they could be expected to take.

This is also a clear message that those injured will not be denied protection from the court on the grounds of policy.