March 25, 2020

Non-recent abuse: limitation, vicarious liability and standard of care defences succeed

A recent decision of the High Court in England has provided a stark illustration of the difficult and complex questions which can arise in cases of non-recent abuse. It will provide useful guidance for courts in Scotland in assessing the statutory defences available under the Limitation (Childhood Abuse) (Scotland) Act 2017.

Background

The Claimant was a pupil at the Defendant's school. In 1991, at the age of 14, she was groomed and had sexual relations on numerous occasions with "Hughes", a kitchen porter employed by the school.

Unbeknown to the school, Hughes had a criminal record which included two counts of unlawful sexual intercourse with underage girls. In 1992, Hughes pled guilty to three counts of unlawful sexual intercourse with the Claimant. EXE brought proceedings against the school for damages.

Limitation

EXE's claim was statute-barred under the Limitation Act 1980. The limitation period for the claim was three years from EXE's 18th birthday and expired in August 1997.

In considering whether to exercise its discretion under s.33 of the Limitation Act the court concluded that the delay in bringing proceedings was due to EXE's sense of shame. That delay had caused the evidence to be less cogent than if the action had been brought within the time allowed. There were discrepancies in the Claimant's evidence, in addition to a lack of witnesses able to speak to the events, and a lack of records.

There were difficulties in assessing the relevant standard of care, issues surrounding consent, causation and vicarious liability. The court concluded that the delay had not only given rise to the possibility of significant prejudice but had caused very significant prejudice to both sides. However the prejudice to the school was greater. In the circumstances the court was not satisfied that a fair trial was possible. As such, the court refused to extend the limitation period under section 33 of the Limitation Act.

Consent

The court considered the difficult area of consent. The Claimant's evidence that she had been "brainwashed" or coerced by Hughes was rejected. Instead whilst acknowledging that it might be argued that a child under 16 could never consent, Mr Justice Griffiths found that the Claimant had been a willing participant, and that all of the sexual acts were consensual. As such, although a crime had been committed, the court found that a tort had not been. While consent was not a defence to the criminal charges, it was a valid defence to a claim of trespass to the person.

Vicarious Liability

The court went on to consider whether the school would have been vicariously liable for Hughes. It was held that the relationship between the school and Hughes was capable of giving rise to vicarious liability, but that there was an insufficient connection between Hughes' employment and his conduct. He was employed as a kitchen porter and it was not intended that he would come into direct contact with children. The fact that he came across EXE at the school, in working hours, on the premises was not enough - his job duties did not involve him having contact with the pupils, he did not use his position to get to know her, the place where he first met EXE was out of bounds, and the school was unaware of their contact. Although the first act of sexual intercourse took place in his room in the school, most of the improper conduct took place after he had left the school's employment.  

Standard of Care

Part of the Claimant's case was that the school was directly liable for breaching a duty of care owed to EXE by failing to check Hughes' previous criminal history. The evidence showed there was no expectation that Hughes would have contact with pupils, and that the recruitment process involved obtaining an independent reference and asking him whether he had a criminal background. At the time, in the early 1990s, the school had no right to obtain have a criminal records check run. In those circumstances, taking into account the standards of the time, the school had not breached its duty of care.

Conclusion

Of particular relevance to Scottish claims is that the language employed by the judge in his decision on limitation mirrors the language in the Limitation (Childhood Abuse) (Scotland) Act 2017. Having heard the evidence, the court concluded that there was substantial prejudice to the defender which outweighed the prejudice to the pursuer. It also concluded that a fair trial was not possible. That is despite the allegations dating from the 1990s, previous criminal proceedings having taken place and the accused having been convicted.

The case is also a useful illustration that there are some limits to the types of employment which will give rise to vicarious liability for abuse. Not every employee's employment will be sufficiently closely connected to the care of children as to give rise to vicarious liability. In each case it is necessary to examine the precise details of the employment.

Authors: Duncan Batchelor, Partner, and Bethany Dodds, Associate.