EL v The Children's Society

Vicarious liability requires more than the opportunity created by an association with the defendant. The court must examine both the relationship between the defendant and the tortfeasor and the connection between that relationship and the tort. The inquiry is fact-sensitive and requires a synthesis of both stages. The defendant must have entrusted the tortfeasor with functions undertaken by the defendant, and there must be a sufficiently close connection between those functions and the tort for liability to be fair and just.

Under section 33 of the Limitation Act 1980, the court must consider all the circumstances, including the statutory factors, the reasons for delay and forensic prejudice. Delay alone is not decisive. The overriding question is whether it is fair and just to require the defendant to meet the claim despite the delay.

The claimant alleged that he had been sexually abused by the son of the houseparents while living at a children’s home operated by the defendant during the 1950s. The alleged abuser was not employed by the defendant, although the claimant asserted that he had assisted with the home’s operation and had sometimes been left in charge.

The claim was brought many years later. The issues were whether the defendant was vicariously liable, whether the precise extent of the abuse could be established, and whether the limitation period should be disapplied under section 33 of the Limitation Act 1980.

1. Vicarious liability. The claim was dismissed. The doctrine imposes strict liability but must remain within clear limits. The court adopted a two-stage, fact-sensitive inquiry: first, the relationship between defendant and tortfeasor; secondly, the connection between that relationship and the tort. The two stages must be assessed by a synthesis of the relevant circumstances.
2. The defendant’s employment or enterprise must have entrusted the tortfeasor with performance of a function undertaken by the defendant. Mere opportunity to commit the tort is insufficient. There must also be a sufficiently close connection between the tort and the entrusted function to make liability fair and just. The evidence did not establish that the alleged abuser had any formal or informal role, had been engaged as relief staff, or had been left in charge. His status as the houseparent’s son did not satisfy the test.
3. Limitation. The court stated that personal injury claims founded on deliberate assault were subject to the three-year limitation period in section 11 of the Limitation Act 1980. Section 33 required consideration of all the circumstances, including the statutory factors, the reasons for delay, and the effect of delay on the defendant’s ability to investigate and defend the claim. The length of delay was not decisive by itself.
4. Although the claimant’s delay was understandable and there was no criticism of the defendant’s conduct, the half-century delay caused substantial forensic prejudice. The relevant witnesses were dead or elderly, memories had faded, and records were incomplete. A fair trial of both the vicarious liability issue and the disputed extent of the abuse was not possible. The court would therefore have refused to disapply the limitation period under section 33, even if the vicarious liability conclusion had been wrong. Those limitation conclusions were academic in light of the primary decision.