by Peter Garsden September 2001
as appeared in the Family Law Journal
On the 9th May 2001 the House of Lords handed down their Judgment in the case of Lister and Others v Helsey Hall Limited (The Times May 10th 2001). By overruling a previous decision of the Court of Appeal (Trotman v North Yorkshire County Council) [The Times, September 10th 1998; (1999 LGR 584)]) the House of Lords widened the scope of vicarious liability to include acts of physical and sexual abuse committed during the course of employment (see below).The Law Lords, in a unanimous verdict, followed a line of Canadian cases culminating in a Supreme Court of Canada decision at the end of 1999 (see below).
Since the law changed in Canada, compensation claims have mushroomed over the last two years to 6200 claims, amongst a much smaller child care population than the United Kingdom.In a recent book called “The Forgotten Children” by Christian Wolmar, which is essential background reading, the author estimates that in the United Kingdom there as many as 15,000 potential claimants.ACAL (The Association of Child Abuse Lawyers) estimate that solicitors are dealing with approximately 2,000 claims at the moment.The potential growth in this area of work therefore should not be under estimated.
The Previous Law
Before the Lister case the law was governed by Trotman v North Yorkshire County Council [The Times, September 10th 1998; (1999 LGR 584)] where a child with learning disabilities was abused on a camping holiday in Spain by the headmaster of a school.Butler-Sloss LJ and others in the Court of Appeal held that sexual abuse was so far removed from the care of children that it could not fall within the scope of employment.The employers were not vicariously liable and the claim was unsuccessful.They reversed the first instance decision.The previous law therefore made it very difficult for a victim of child abuse to bring a successful claim against the managers of a care home.
Since most of the investigations arise out of abuse committed between 10 and 30 years ago, the primary limitation period for assault, which is six years, and negligence, which is three years, has obviously long since passed.In any event, many of the abusers are serving prison sentences, impecunious and unworthy of serious litigation.The case of Stubbings v Webb (1993) 1All E.R. 322], which is still good law, established that a claim for abuse is not a claim for personal injuries, to which the provisions of the Limitation Act (11, 14 and 33) apply.The case of S v W & Another [1996 3 FCR 649], which is also good law, concerned a child bringing proceedings against her abusive father and mother, who allegedly failed to intervene when mother knew her daughter was being abused by her father.Somewhat bizarrely it was held that, following Stubbings and Webb, the claim against the father was statute barred as proceedings were instituted more than six years after the act of abuse, whereas the claim against the mother in negligence was within time under the exceptional provisions of the Limitation Act 1980.
Victims argued previously and continue to argue that their psychological states of disassociation caused by the abuse have prevented them from disclosing the abuse for many years. It is not uncommon for the victim to withhold his experiences from his next of kin until the police knock on his door, many years after the event. Usually these cases succeed under Section 33 Limitation Act 1980 on the grounds that the abuse has caused the victim to remain silent, particularly where a violent abuser has intimidated his child victim into silence with threats. Complaints, which were ignored in the past, have not encouraged the adult survivor to disclose.
Accordingly, before the law changed, and assuming the limitation hurdle could be overcome, it was possible to bring claims against the managers of children’s homes in negligence, where it could be shown that there were defects in the systems of management at the home.Groups of Claimants could establish defects in management systems by illustrating that career paedophiles had operated in the home over a number of years. The repetitive nature of the abuse strengthened claims in negligence and allegations of constructive knowledge of the abuse against the home managers.The Defendants, however, usually pleaded in their Defence, that they were ignorant of the abusive activity and had been hoodwinked by secretive and manipulative paedophiles.They claimed that they were completely unaware of what was going on.
There were examples of complaints being ignored, as illustrated by the Waterhouse Enquiry and the North Wales Tribunal.There were many examples of inept management practices and geographically isolated children’s homes being allowed to rule themselves in a hands off management style.A macho bully boy culture, particularly in Approved Schools, was sadly all too common.
Whilst cases did settle the discounts used to assess the risks of litigation were quite high. Even after a change in the law however these cases remain very difficult, both legally and emotionally for the conducting solicitor.
The Law After Lister
The Facts
In Lister v Hesley Hall Limited three boys in the care of the local authority were placed at Axelholme House, where they were physically and sexually abused by Dennis Grain, the Warden of the home between 1979 and 1982.At Darlington County Court the Judge dismissed the claim in negligence.It could not be proved that the managers of Hesley Hall Limited were aware, or should have been aware of what was going on.Axelholme was an isolated building in the grounds of a large country house.It was run by Dennis Grain and his wife.
The Law
To circumvent the vicarious liability problem, Counsel argued that, after the abuse had been committed, Dennis Grain was under a duty to self report his own abuse as part of his role as a care worker.At first instance the Judge agreed with this argument and found for the Claimants.The Defendants appealed to the Court of Appeal who were compelled to follow Trotman (see above), by holding that sexual abuse was outside of the scope of employment.
Between the Court of Appeal and House of Lords, the Canadian Supreme Court radically changed the law in Bazley v Curry [(1999) 1974 DLR (4th ) 45] by holding that the employers of a care worker who commits an act of abuse whilst looking after children, are vicariously liable for his deeds.It was argued that if a care worker is employed to undertake the functions of putting to bed and toileting, then that is an activity closely connected with employment. The employers are thus putting the employee in a position of risk. If abuse takes place in the course of such activity, then it is an unauthorised way of carrying out an authorised activity rather than an act outside of the scope of employment.
The House of Lords was very impressed with the Canadian Judgment and followed it.It was unanimously held that abuse committed during the course of the employment of a care worker imposes vicarious liability on the employers if the activity is closely connected with the scope of employment.There was comment that the nature of the employment should be carefully examined. It was said, for example, that abuse committed by a gardener, might not be within the scope of employment.
Because of the limitation rules created by Stubbings v. Webb (see above) it was importantwhether the vicarious liability was imposed for the tort of trespass (6 years unextendable) or breach of duty (3 Years extendable). The Law Lords were partially divided.Lord Millett held that the employers were vicarious liability for the tort of trespass, whereas Lords Hobhouse, Clyde and Steyn all held in varying degrees that it was for breach of duty.
The House of Lords followed a line of decisions taken from the law of bailment and started by Morris v C W Martin & Sons Ltd [1966] 1 QB 716 , where an employee of a firm of cleaners who were entrusted to clean a fur coat, stole it.The employers were held liable for the theft.The obvious question was “ are fur coats more important than children?”The inevitable answer to the question and the Canadian decisions persuaded the House of Lords to change the law.
The Effects of the Lister Case
Because vicarious liability has been imposed for acts of sexual abuse it becomes much easier to bring a claim against the employers of an abuser.It almost imposes strict liability for the act itself.If it is necessary to allege negligence, then commission of the act itself be it physical or sexual abuse, must be good enough.It almost takes the law into the realms of Rylands v Fletcher.
Legal Aid has always been available for child abuse claims, but has previously been refused where it could not be shown that there was corroborative evidence and a group of Claimants proceeding together in a co-ordinated fashion.It will now be possible to bring claims for abuse out of time, even where there is one isolated act of abuse committed by an employee whilst the child was in care.Such cases however, should be handled cautiously because the truth of the allegation is likely to be rigorously challenged by the Defendants.A criminal conviction to corroborate the truth of the allegation is always important.
The case does not help allegations of abuse by pupils on other pupils.Obviously, the doctrine of vicarious liability is of no assistance here.Proof of negligence, ignored complaints and an abusive climate within the home would have to be shown in a similar way to the law before Lister (see above).
Arguably the change in the law does not assist a visiting abuser not employed by the home, or a former employee who returns to the home to abuse children in care.It may not assist employees whose function is not to care for children, but do other tasks, such as gardeners, cleaners.The exact circumstances of the abuse however should be examined.A gardener who is asked to show the children the skills of gardening and abuses in the potting shed, may still be liable.
Lister covers an employee whatever his status.It matters not that he is an unpaid volunteer, or agent of the home, provided that the managers were aware of his presence and existence.It may also cover visiting paedophiles, if invited by an employee, on the ground that if the employee acts knowingly it amounts to a breach of duty.
In Canada the law has been extended the cover the foster care situation (Monique Brooks v British Columbia (2000 BCSC 735)).In this case a girl was abused by her foster father.A Canadian statute put a local authority, who were responsible for a child under a care order, in loco parentis.It was not possible to delegate the duty of care to anyone else by entrusting the child to foster parents.Thus the local authority remained liable because of the non-delegable duty of care and under the principles of vicarious liability.There is no such decision in the English Courts.No doubt the law will be clarified in a future appeal by the House of Lords.Thebook “Forgotten Children” referred to above illustrates that the number of children in the residential care of children’s homes is a fraction of what it used to be and that foster care is now much more popular.It is known that abuse is alleged to take place in foster care and many of the Police investigations cover this area. The argument must surely run that it is inequitable for a Local Authority to escape liability by sending a child to foster parents as opposed to a local authority children’s home particularly where the choice has been made on the grounds of the saving of cost.
Conclusions
Vicarious liability has clearly been imposed upon an employer for acts of physical or sexual abuse, provided that the activity being carried out by the employee was closely connected to and within the scope of employment The act is an unauthorised way of carrying out an authorised activity (Lister vHesley Hall Limited)
The law can be argued to cover other areas of abuse such as elder abuse, racial abuse and religious abuse, though there is no authority for this proposition as yet.
The change in the law does not assist with allegations of pupil/pupil abuse.
The status of employment is unimportant.
The number of claims being made should mushroom in numbers over the next few years from 2000 to as many as 15,000 Claimants.
This is a very difficult area of law, both legally and emotionally.It is totally different from other types of personal injury claims and requires careful handling.Emotional health is vital and training is advisable.ACAL hold training courses see the website www.childabuselawyers.com, or contact Lee Moore P O Box 466, Lower Road, Chorleywood, Herts, WD3 5LG.Tele No. 01923 286921, Fax No. 01923 264988, email:leemooreco@aol.com or via the website.
Most of the cases referred to above are referred to and hyperlinked on the ACAL Website. Lister in particular is reported on the House of Lords site http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm
Peter Garsden is a Partner in Simpson Millar LLP Solicitors, a national law firm. He co-ordinates most of the child abuse children’s home group actions in the North of England and heads a specialist department dedicated to this type of work.He is a Personal Injury Panel Member and Partner.His firm, which has been established for 16 years, has a Legal Aid Franchise and Investors in People Certificate.He lectures, writes articles on the subject of child abuse, and has given interviews extensively to the national and local TV, radio and newspapers.He has been a qualified solicitor for 20 years.
