Historic Abuse Claims: Recent Developments
June 24, 2021
Catherine Knowles provides an overview of recent developments that may be of interest to defence practitioners dealing with complex and sensitive historic abuse claims, with reference to SKX v Manchester City Council  4 WLR 56 and AB v Chethams School of Music  EWHC 1419 (QB).
Defence practitioners dealing with complex and sensitive historic abuse claims will be familiar with the numerous legal and factual issues that arise in such cases. In SKX v Manchester City Council, Cavanagh J rejected a claimant’s attempt to extend the concept of a non-delegable duty of care to a local authority that had placed a child in a privately run care home, and to hold the local authority vicariously liable for sexual abuse by the CEO of that privately run care home. In AB v Chethams School of Music, Fordham J considered limitation in the context of a claim against the abuser’s employer, and looked at whether the defendant employer was vicariously liable for assaults taking place away from the employer’s premises.
SKX was one of a number of claimants who brought historic abuse claims against Bryn Alyn Community (Holdings) Ltd (‘the company’) (which owned a care home in which they had resided as children in the 1980s), and against the company’s insurers. Whilst the liability of the company was established, SKX was unable to recover compensation because the company had gone into liquidation, and the insurance policy excluded liability for ab deliberate actions.
SKX had been placed in the company’s care home by Manchester City Council (‘MCC’), and in February 2017 he brought a claim against MCC, alleging that:
- MCC had owed him a non-delegable duty of care to ensure that he was protected from harm;
- MCC was vicariously liable for abuse carried out by the company’s CEO.
These issues were listed to be heard as preliminary issues, along with the question of whether the limitation period should be disapplied, the claim having been brought some 22 years after the expiry of the limitation period.
No non-delegable duty of care
Cavanagh J held that MCC had not been under a non-delegable duty to protect SKX when he was placed in a privately-run residential home, the situation being analogous to that of children placed in foster homes (Arnes). Section 21 (1) of the Children’s Act 1980 made clear that when a child was placed in accordance with that section, the local authority’s function to “provide daily care” was discharged, not delegated. That did not mean that MCC had ceased to owe any duty towards SKX, but it was a duty to arrange for, and then monitor, the performance of the care giver. SKX had not pleaded that MCC had been negligent in its monitoring function.
No relationship akin to employment = no vicarious liability
The central question was whether the relationship between the wrongdoer and the person alleged to have vicarious liability was akin to employment: if the wrongdoer was carrying out an independent business of their own or a third party, there would be no vicarious liability. At the time of the abuse, the CEO had not been in a relationship akin to employment with MCC and he had been carrying out independent business of the company. MCC was only one of a number of authorities that placed children with the company, and the company was not part of MCC’s organisation, nor integrated into its structure, MCC having entered into specific agreements with the company whenever it send a child for placement.
Limitation period disapplied
Although it proved academic, given the conclusions on the other issues, Cavanagh J did hold that it was just and equitable to disapply the primary limitation period. MCC had not suffered prejudice, the cogency of its evidence had not been impaired (non-delegable duty being a pure point of law, and the facts relating to the fundamental nature of the relationship between MCC and the CEO being clear and undisputed), MCC had not been disadvantaged by the delay and the sheer length of the delay was not reason to decline to extend time in the absence of such disadvantage.
In AB v Chethams School of Music, Fordham J was asked to decide three key issues:
- Whether the court should exercise its discretion under S.33 Limitation Act 1980 to disapply the limitation period set out in S.11;
- Whether Mr Li had sexually assaulted the claimant, ‘A’;
- Whether Chethams School of Music (‘CSM’) was vicarious liable for sexual abuse carried out by Mr Li against A where that sexual abuse had taken place away from CSM’s premises, in Mr Li’s private car and flat.
Much of the 114 page judgment is taken up with addressing the second of these questions, but for the purposes of this article, it is sufficient to note that Fordham J concluded that Mr Li had sexually assaulted A.
A was born outside the UK. A talented violinist, she came to the UK and started school at the Yedhudi Menhuin School (‘YMS’) in London at the age of 12, where she was taught violin by Mr Li between 1993 and 1996.
When Mr Li resigned from YMS and moved to CMS, A also changed school to CMS. Mr Li taught A violin at CMS between September 1996 and June 1997 (when A was 15 and 16 years old).
It was CMS’ policy that all overseas students had to have a UK guardian, who would act in loco parentis, and who would have the student to stay with them during “free” weekends and half-term holidays. Before A started as a pupil at CMS, it was agreed between Mr Li and A’s parents that Mr Li would be A’s UK based guardian. CMS was notified of this decision, but did not have any input into it.
In early 2013, A contacted Greater Manchester Police (‘GMP’) to make a complaint of sexual misconduct of Mr Li relating to the period 1996/1997. For reasons explained in the judgment, that prosecution was not proceeded with.
A instructed solicitors to bring a civil claim, and a limitation amnesty was agreed. For the purposes of the limitation argument, the claim was treated as having been issued on 16 August 2017. That was some 15 years and 5 months after the expiry of the primary limitation period, C having turned 21 in March 2002.
Limitation period disapplied
Fordham J reviewed the authorities, and weighed the competing factors in A’s case, concluding that “the balance of prejudice and justice” came down “decisively in favour of [A]” being able to proceed with her claim:
- Whilst Fordham J did not accept that the multiple reasons for delay put forward by C stood “as cogent and compelling reasons for the entirety of – and for each period within – the very long period of delay”, he found that there was “nevertheless some very real force in several of the points made”:
- Until she was 25, A had seen Mr Li as having “taken advantage” of her, but had not recognised what had happened to her as sexual abuse. She had wanted to “block out and forget what had happened to her”.
- When, in early 2013, A reported what had happened to her to GMP, the catalyst for doing so was that she had learned that there was an investigation into allegations of teacher sexual abuse at CSM, which were being investigated. It was this that caused her to step forward, believing that she would be taken seriously by authorities. After that, she placed her trust in the criminal process.
- Fordham J found that “there is a legitimacy in an abuse survivor experiencing, as an encouraging and reassuring catalyst, knowledge of another similar investigation”, and that “there is a legitimacy in trusting the criminal process and not pursuing parallel civil action against an abuser or their employer.” As to the period after the criminal prosecution had been “dropped”, A “understandably needed some recovery time.”
- There had been periods of unexplained delay, in particular, 2006-2013, (the date between which A had graduated from music college in the UK and her making a complaint to GMP), but the critical question was whether there was substantial, relevant, prejudice to CSM, a question that Fordham J answered in the negative.
- Fordham J found that CSM had not been prejudiced in a relevant sense by the delay:
- The issues in the trial were narrow.
- As to the issue of whether Mr Li assaulted A, there was no issue of consent. Whether A’s allegations against Mr Li were correct, engaged the evidence of A and Mr Li, both of whom were still available to give oral evidence and to be cross examined at trial. They both claimed a clear recollection of whether what was alleged took place.
- As to the issue of vicarious liability, A accepted that CSM had no role in choosing Mr Li as guardian, and accepted that the abuse in Mr Li’s flat and car had taken place whilst Mr Li was hosting A as guardian.
- It was not said that there was any witness who would have been available had the claim been brought sooner, but who was not now available, nor was it suggested that any material documents were no longer available.
- A fair trial was still possible and there was no unfairness to CSM in the trial taking place.
- The court had the advantage of “a solid platform of contemporaneous material elicited by GMP during a sustained period of investigation.”
- In the present case, the court was not being asked to decide questions relating to physical or mental health conditions, or causation, and the parties had agreed quantum on a particular basis (and agreed that it could be resolved if the court found that only part of the abuse had occurred).
CSM vicariously liable for abuse in teacher’s flat and car
- CSM’s argument was that when Mr Li abused A at his flat, and in his car, that was a misuse of the authority conferred upon him by A’s parents under the guardianship arrangement, rather than a misuse of authority conferred upon him by CSM in his role as music teacher. That guardianship arrangement preceded Mr Li’s teaching of A at CSM, and CSM had had no role in selecting Mr Li as A’s guardian.
- Fordham J rejected CSM’s arguments, and held that CSM was vicariously liable for the abuse in Mr Li’s flat and car (as well as that on school premises). Fordham J took into account the following features:
- The functions which CSM entrusted to Mr Li, as A’s lead instrumental teacher, included the pastoral responsibility owed to her as a teacher, these being within his field of activities and the nature of his job.
- CSM conferred on Mr Li authority over A.
- Mr Li abused that authority, by his actions at CSM and in the teacher-pupil setting: of exercising control over A, and manipulating her (grooming), paving the way for the sexual assaults which followed, as the beginning of a course of conduct which manipulated her into submission in relation to those sexual assaults.
- Mr Li further abused that authority by actions at CSM, and in the teacher-pupil setting: of repeated sexual assault in the practice room at CSM, actions which were the beginning of an escalating course of sexual assaults that followed in the private setting of his car and flat.
- The employment relationship between CSM and Mr Li caused Mr Li to have access to A, in circumstances where sexual abuse was facilitated.
- CSM, through the employment relationship, provided Mr Li with the opportunity to abuse his power.
- CSM, through the employment relationship, created or significantly enhanced the risk that A would suffer the sexual abuse.
- The risk was a function of both close proximity, and a position of trust.
- The employment relationship facilitated the commission of sexual abuse of A by Mr Li by placing him in a position where he enjoyed both physical proximity to A, and the influence of authority over her.
- The employment relationship between CSM and Mr Li entrusted Mr Li with responsibility for care of A.
- There was a strong causative link between the employment relationship between CSM and Mr Li, and Mr Li’s sexual assaults of A.
- This strong causative link could be seen in the fact that CSM’s use of Mr Li, as principal instrumental teacher with pastoral responsibility, was done in a manner which created or significantly enhanced the risk that A would suffer the relevant sexual abuse.
- The sexual assaults in Mr Li’s car and flat, whilst he was acting as host under the guardianship arrangement agreed with A’s parents, flowed directly from acts of control and manipulation by Mr Li at CSM and the teacher-pupil setting.
- The sexual assaults at the flat and in the car were an escalation of the course of conduct of sexual abuse that began at CSM and in the teacher-pupil setting.
- Whilst egregious and unexplained delays may result in a claimant being unable to proceed with the claim (e.g. RE v GE), the fact that not every period of delay can be excused is unlikely, by itself, to cause the court to reject an application to disapply the limitation period. AB is an example of the courts recognising that people who have been abused may not initially recognise that they have been abused, and that they may be justified in waiting until other people come forward to come forward with their own complaint.
- The presence or absence of real prejudice to a defendant remains key. Prejudice has to be examined in each case, and against the issues arising in each case. It is not be enough for a defendant merely to assert prejudice (FZO).
- Following SKX and Arnes, the focus is likely to turn away from arguments of non-delegable duty of care, and back to whether a particular defendant organisation is vicariously liable for the abuse, remembering that more than one organisation may be vicariously liable. Allegations of negligent monitoring may be raised where the evidence supports that approach.
- As to whether an organisation is vicariously liable, two limbs have to be considered: (i) was the relationship between tortfeasor and defendant organisation one capable of giving rise to vicarious liability; (ii) was the abuse sufficiently closely connected to that relationship so as to make the defendant liable? (The Christian Brothers case).
- At the first stage, the key question is whether the tortfeasor is carrying on business on his own account (or that of a third party), or whether he is in a relationship akin to employment with the defendant. The key will usually lie in understanding the details of the relationship, and where it is clear that the tortfeasor is carrying on his own independent business it is not usually necessary to go further (Barclays Bank; SKX).
- Each case turns upon its own facts, and AB is an example of the need to analyse those facts carefully. It has long been recognised that the fact that abuse takes place away from the defendant’s premises does not necessarily negate vicarious liability, but at first blush, one can see why CSM felt that it had a good defence on vicarious liability relating to the assaults in Mr Li’s flat and car: he knew A before she started at CSM, he was appointed as her guardian by A’s parents and not by CSM, and he was hosting A in his car and flat as part of that guardianship arrangement. However, on the facts as Fordham J found them to be, it became clear that the sexual assaults away from CSM’s premises were a continuation of the abuse that had started within the teacher-pupil relationship at CSM, and within CSM’s teaching rooms.
Cases referred to:
SKX v Manchester City Council  4 WLR 56.
AB v Chethams School of Music  EWHC 1419 (QB).
Arnes v Nottinghamshire County Council  UKSC 60.
RE v GE  EWCA Civ 287.
London Borough of Haringey v FZO  EWCA Civ 180.
Various Claimants v Catholic Child Welfare Society (‘The Christian Brothers case’)  UKSC 56.
Barclays Bank plc v Various Claimants  UKSC 13.