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Vicarious Liability – An Expanding Universe

In 2016, Robert O’Leary of Crown Office Chambers, secured a significant victory for the Claimant in the Supreme Court case of Cox v Ministry of Justice [2016] UKSC 10. In that case, the Supreme Court held that Mrs. Cox’s employers, the Ministry of Justice, were vicariously liable for the negligence of a prisoner working with Mrs. Cox at HMP Swansea who dropped a large sack of rice on her, injuring her. In so finding, the Court held that Lord Phillips’ guidance in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 was not confined to a special category of cases such as the sexual abuse of children, but provided a basis for identifying the circumstances in which vicarious liability may be imposed outside the relationship of employment.

Now, in another abuse case, Armes v Nottinghamshire County Council [2017] UKSC 60, the Supreme Court has expanded the reach of vicarious liability further, applying the principles set out in Cox v Ministry of Justice, over-ruling the well-known decision of S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150, C.A. in the process.

In Armes, the Claimant was both physically, emotionally and sexually abused by foster parents with whom she had been placed whilst in the care of Nottinghamshire County Council. The claim proceeded on the basis that whilst the local authority were not negligent in the selection or supervision of the foster parents, they were nevertheless liable for the abuse perpetrated by them either on the basis that the local authority was in breach of a non-delegable duty of care, or, alternatively, on the basis that they were vicariously liable for the wrongdoing of the foster parents.

The appeal on the basis of a non-delegable duty of care failed. However, allowing the Claimant’s appeal by a majority of 4:1, the Supreme Court held that the local authority was vicariously liable for the acts of the foster parents. Applying the Cox principles, the Supreme Court held that the local authority was under a statutory duty to care for children committed to its care, such duty involving the provision of accommodation, maintenance and daily care. The local authority carried out the recruitment, selection and training of foster parents, paid their expenses and supervised their fostering. In such circumstances, the foster parents were not carrying on an independent business of their own, but were carrying out such activity for the benefit of the local authority as an integral part of its organisation of its child-care services. The placement of children, such as the Claimant, with foster parents in circumstances where the local authority could not exercise close control, created a relationship of authority and trust between the foster parents and the children and rendered the children particularly vulnerable to abuse. The Supreme Court noted that micro-management or a high degree of control were not necessary for the imposition of vicarious liability. It was also material that most foster parents would have insufficient means to meet a substantial award of damages, whilst local authorities could more easily compensate the victims of abuse.

Consideration of the factors discussed in Cox  therefore pointed towards the imposition of vicarious liability and the Claimant’s appeal was allowed.



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