XVW & YZA v Gravesend Grammar Schools for Girls & Anor

Vicarious liability for the criminal acts of a non-employee depends first on whether the relationship is sufficiently akin to employment, assessed by the facts and particularly the degree of control. The doctrine is not infinitely extendable.

In determining the scope of a duty to protect against a third party’s criminal conduct, foreseeability alone is insufficient. The court must consider whether it is fair, just and reasonable to impose that responsibility in the circumstances, applying the Caparo approach without excessive formula.

School and expedition organisers were not liable where reasonable checks and continuous supervision gave no reason to foresee the attack and the precautions required to prevent it would have involved exceptional security measures.

Two anonymised school pupils claimed damages against their school and an expedition company after being raped by a local man during an educational expedition to Belize.

The claimants alleged that the local man’s relationship with the defendants made them vicariously liable. They also alleged that the school had breached its direct duty of care by arranging the expedition with only one teacher and that the leadership team had failed to respond to warning signs or take reasonable precautions.

The defendants admitted that they owed duties of care, expressed by reference to the care reasonably expected of a careful parent. The issues were whether vicarious liability arose, whether the school’s staffing arrangements breached its duty, and whether the assault was sufficiently foreseeable to require further precautions.

1. Vicarious liability. The relationship between the local man and the defendants was not sufficiently connected with employment or analogous to it. He owned or jointly owned the farm, allocated and demonstrated the work, and facilitated recreational activities, but the girls remained under the continuous supervision and control of the defendants’ leaders. The leaders’ rejection of his proposal that the girls work on jungle paths showed where true control lay. It was not just and fair to impose vicarious liability.
2. Staffing. The school’s decision to provide one teacher, alongside two highly experienced technical leaders, was not a breach of duty. The applicable guidance did not create an inflexible legal requirement for two teachers, and the evidence did not show that the absence of a second teacher caused any difficulty.
3. Scope and breach of duty. The defendants owed duties to take the reasonable care that a careful parent would take. The scope of that duty was governed by the familiar tripartite approach in Caparo v Dickman [1992] AC 605, applied without excessive formalism. Following Mitchell v Glasgow City Council [2009] 1 AC 874 and X and Y v LB Hounslow [2009] EWCA Civ 286, the relevant question was whether the circumstances made it readily understandable that the law should impose responsibility to protect against the risk.
4. The leaders had not been told of the inappropriate incidents at the swimming pool and had no reason to foresee the attack. The checks undertaken were reasonable and proportionate. Preventing the assault would have required measures such as guarding each sleeping hut or operating a watch system. It was not fair, just and reasonable to define the defendants’ duties so broadly. Neither defendant breached its duty of care.
5. Disposition. The claims were dismissed.