Education: vicarious liability for teacher's sexual abuse of pupil can continue after pupil leaves school

The Court of Appeal has ruled that a local authority, as employer of a PE teacher who abused a boy whilst he was a pupil at the school and maintained a sexual relationship with him long after he left, remained vicariously liable for damage caused to the former pupil both during and after his time at the school. The former pupil was awarded £1.1 million in damages.

The Court of Appeal also rejected the local authority’s appeal that the judge should not have exercised her discretion to disapply ordinary time limits for bringing the claim, despite the alleged abuse having started in the 1980s.

With regard to vicarious liability in abuse cases, a two-stage test is applied. First, there must be a relationship between the abuser and the party against whom vicarious liability is alleged, capable of giving rise to vicarious liability. The paradigm example of such a relationship is that of employer and employee. Where a teacher is employed by a local authority, that local authority can be vicariously liable. The more onerous second stage of the test requires there to be a sufficient connection between the abuser’s acts on the one hand and the relationship between the abuser and the other party on the other hand. Previous cases have involved, for instance, the alleged liability of the owners of a school or of organisations responsible for placing teachers within a particular school. In this case, the local authority’s arguments that it was not liable because most of the abuse had taken place ‘privately’ at the teacher’s home, or on weekend trips away when the teacher had ‘taken off his uniform’, were predictably rejected, as the nature of the relevant relationship matters more than the location of the abuse.

What is different in this case is the finding that the teacher’s employer remained liable for acts committed long after the abused child had reached majority age, whilst he continued for many years a sexual relationship with his former teacher. The judge’s reasoning for this finding, upheld by the Court of Appeal, was that the control and manipulation (“grooming”) that began whilst the abused was a child continued to be operative on him even after leaving school when he continued the relationship as an adult. This rendered his participation in subsequent sexual activity submissive rather than genuinely consensual. The relationship was therefore to be regarded as a continuing activity that started during the period when the criteria for vicarious liability set out above were met.

As is common in historic sex abuse cases, there was considerable argument over limitation. This case would, in the absence of the court’s exercise of its discretion, have become time-barred at the latest in the 1990s, three years after the abused reached the age of majority and was aware that he had been abused. Section 33, Limitation Act 1980 requires the court to have regard to all the circumstances of the case and a number of particular factors when deciding whether to disapply the normal time-limits. The main challenge in this case related to whether or not the local authority would be prejudiced by the fact that evidence would be less cogent after such a long delay than it would have been had the claim been brought within the ordinary limitation period. The Court of Appeal agreed with the first instance judge that in sexual abuse cases most of the relevant evidence will need to come from the alleged abuser and the abused; where, as in this case, their memories of the alleged events remain clear, it cannot be said that a defendant would have been significantly more likely to be able to defend himself successfully had a case been brought earlier. Moreover, the local authority did not appear to the court to have failed due to the lapse of time to secure additional witnesses or evidence; rather, they had made no real attempt to make up evidential deficiencies about which they subsequently complained.

This case marks a further incremental step in attributing vicarious liability to the employers of abusive teachers, by allowing a claim relating to events that (in part) took place years after the pupil left school on the basis that the damaging effects of the abusive relationship instigated by the teacher continued.

Further reading: London Borough of Haringey v FZO [2020] EWCA Civ 180.