To succeed in a complaint of vicarious liability, claimants have to show that the relationship between the relevant parties is “akin to employment” and that the "wrongdoing" is so closely connected to it that it can be regarded as having been done whilst acting "in the course" of the relationship. In MXX v A Secondary School, the Court of Appeal held that the second test could not be met as the assaults on MXX did not happen until after the perpetrator had left the school.
Basic facts
In February 2014, a former pupil at the school called PXM returned to do a week’s work experience placement. He was 18 and attending college with the hope of becoming a PE teacher. During the placement he met MXX, a 13-year-old pupil at the school, but did not teach in any of her classes. Towards the end of the week, he suggested to her that she should attend a session of the after-school badminton club which was supervised by a teacher.
PXM was required to read the school’s guidance which prohibited people working and volunteering at the school from exchanging messages on social media with pupils. However, soon after finishing the placement, he became Facebook friends with MXX. In early July, he sent MXX indecent images of himself and when they met for the first time in August, he sexually assaulted her. He was subsequently tried for the offences.
MXX sought damages of £27,500 in the High Court against the school for personal injury arguing that it was vicariously liable for the assaults.
High Court decision
Dismissing the claim, the High Court judge held firstly that the relationship between PXM and the school was not “akin to employment”. The limited tasks PXM performed were minor and ancillary, not integral to the work of the school; he had no responsibility for teaching; and no pupil was ever entrusted to his care to any extent. The school did not, therefore, create the risk of PXM committing the tort (civil wrong).
However, if she was wrong on that point, the judge held that the second stage was also not satisfied as all the wrongdoing took place after the relationship between PXM and the school had ended. The most that could be said was that the school had provided an opportunity for PXM to meet MXX which was not enough to create a “close connection” with the perpetrator.
MXX appealed, arguing that PXM's position was indistinguishable from the work of a junior PE teacher or teaching assistant and was, therefore, akin to employment.
Decision of Court of Appeal
The Court of Appeal agreed with MXX that the school identified the terms on which PXM would be at the school; it required him to read and accept the procedures and guidance which applied to members of staff; it regulated PXM's time, supervised him and directed and controlled what he did. The badminton session which the claimant attended at the suggestion of PXM was open only to pupils and staff, and PXM was not a pupil. His relationship with the school was, therefore, “akin to employment”.
However, it agreed with the High Court judge that the assaults carried out by PXM were not sufficiently connected with the work allocated to him during his week at the school. He had no caring or pastoral responsibility for the pupils; his access to MXX was limited as he was (or should have been) kept under close supervision at all times. Even allowing for the fact that PXM was to be addressed as if he was a member of staff, he held no position of authority over the pupils in the school. It was not until PXM left the school that any communication took place on Facebook, communication that was specifically prohibited by the school.
It, therefore, dismissed the appeal.
Comment
The claimant was unable to establish vicarious liability in this case because PXM had had a very limited and short-term role at the school and because the grooming which led to the sexual offending was not inextricably linked to him carrying out his work at the school.