EXE v The Governors of the Royal Naval School

A criminal act is not necessarily a tort where consent is legally relevant to the civil claim. Whether a young person gave genuine consent is a question of primary fact, assessed from all the factual and expert evidence. Consent may be absent without force, including where apparent consent results from grooming, but age alone does not establish absence of consent.

In assessing a late personal-injury claim under Limitation Act 1980, the court must consider all the circumstances, including the reasons for delay and the extent to which evidence has lost cogency. The discretion is unfettered and is not limited to cases of psychiatric disability. A school may owe pupils a duty to take reasonable recruitment checks, but failure to obtain a criminal-record check is not negligent where the applicable guidance did not call for such a check and the employee was not expected to have access to pupils.

EXE claimed damages from the Governors of the Royal Naval School for psychological harm arising from sexual intercourse with Hughes, a school kitchen porter, when she was aged 14 and 15. Hughes had criminal convictions unknown to the School and later pleaded guilty to unlawful sexual intercourse with EXE.

The claims were advanced in vicarious liability and negligence. The Court had to determine limitation, whether Hughes’s conduct constituted torts despite the criminal convictions, whether the School was vicariously liable, whether it negligently recruited Hughes, and, if liability existed, causation and quantum.

1. Limitation. The primary limitation period expired in August 1997. Under section 33 of the Limitation Act 1980, the question was whether it was equitable to allow the action to proceed, weighing prejudice to EXE against prejudice to the School and considering all the circumstances, including the statutory factors. Psychological shame and anxiety could count in EXE’s favour even though she was not psychiatrically disabled from bringing proceedings. However, the 24-year delay had caused significant and irreparable prejudice through lost witnesses, lost records and deteriorating recollection. A fair trial was no longer possible, so the limitation period was not extended.
2. Consent and tort. The fact that Hughes’s conduct was criminal did not determine whether it was tortious. The criminal offences under the Sexual Offences Act 1956 did not require proof of lack of consent because EXE was under 16. Civilly, however, consent remained relevant. Following the guidance in London Borough of Haringey v FZO [2020] EWCA Civ 180, consent was a question of primary fact. It could be absent without force and could be undermined by grooming, but the evidence did not establish grooming, coercion, brainwashing or mere submission. EXE’s contemporaneous Police Statement, chronology and conduct showed genuine and free consent. No tort by Hughes was proved.
3. Vicarious liability. Applying the two-stage approach in Various Claimants v Catholic Welfare Society [2013] 2 AC 1 and Mohamud v W M Morrison Supermarkets plc [2016] AC 677, the employment relationship was capable of giving rise to liability, but there was insufficient connection between Hughes’s kitchen-porter duties and his conduct. His duties gave him no authority, power or expected contact with pupils. The School would not in any event have been vicariously liable.
4. Negligence. Applying Caparo Industries plc v Dickman [1990] 2 AC 605, the School owed pupils a duty to take reasonable steps to check that staff were suitable for their expected work on School premises. There was no breach. The 1988 guidance concerned substantial access to children in the course of employment. Hughes was a behind-the-scenes kitchen porter whose duties involved no expected access to pupils. The School’s failure to obtain a criminal-record check was therefore not negligent.
5. The claims were dismissed. Causation and quantum did not fall for decision because no tort or breach of duty had been proved.