MXX v A SECONDARY SCHOOL

Vicarious liability requires both a relationship capable of giving rise to liability and a sufficiently close connection between that relationship and the tort. A short, closely supervised work-experience placement, undertaken principally for the learner’s benefit, will not ordinarily be akin to employment where the participant has no independent teaching, pastoral or caring responsibility. The mere opportunity to meet pupils is insufficient.

In sexual-abuse cases, the close-connection inquiry may consider authority, delegated responsibility and the field of activities entrusted to the tortfeasor. Where all grooming and abuse occur weeks after the placement has ended, away from the school and through unauthorised social-media contact, the necessary connection is not established.

The claimant, who was aged 13, alleged that she had been sexually abused by PXM, an 18-year-old former pupil undertaking a one-week work-experience placement in the defendant school’s physical-education department. The defendant admitted that PXM had committed assault and battery, and the claimant also relied on intentional infliction of harm. The issue was whether the defendant was vicariously liable for those torts.

The court found that PXM’s school interactions with the claimant were limited to a brief conversation and a supervised badminton session. The grooming, sexual communications and assaults occurred after the placement had ended. The central questions were whether PXM’s relationship with the school was akin to employment and whether the necessary close connection existed.

1. Outcome. The claim was dismissed. The claimant proved assault and battery on 2 and 5 August 2014 and proved the tort of intentional infliction of harm, completed when sexual activity occurred on 2 August. Quantum had been agreed at £27,500 subject to liability.
2. Intentional infliction of harm. Applying Rhodes v OPO [2015] UKSC 32, the tort required unjustified conduct directed at the claimant, an intention to cause at least severe mental or emotional distress, and physical harm or a recognised psychiatric illness. Recklessness was insufficient and intention could not be imputed merely from the natural and probable consequences of conduct. On the facts, the requisite conduct and intention arose only when PXM arranged and engaged in sexual activity with the claimant, several weeks after the placement.
3. First stage of vicarious liability. The court applied the two-stage framework in The Catholic Child Welfare Society v Various Claimants [2012] UKSC 56, as developed in Cox v Ministry of Justice [2016] UKSC 10 and Barclays Bank PLC v Various Claimants [2020] UKSC 13. PXM’s one-week placement was principally for his own education. He was unqualified, closely supervised, had no independent responsibility for teaching or pupil care, and performed only minor ancillary tasks. The school’s safeguarding policies and requirement that pupils treat him respectfully were neutral factors. The relationship was not akin to employment.
4. Second stage. Even if the first stage had been satisfied, the close-connection test was not. The court applied the guidance in Lister v Hesley Hall [2002] 1 AC 215 and Blackpool Football Club v DSN [2021] EWCA Civ 1352. Unlike a warden entrusted with the care and welfare of children, PXM had no pastoral or delegated responsibility and was never alone with the claimant. The badminton contact was public, supervised and legitimate. The later Facebook communications were unauthorised and unrelated to the school. All wrongful conduct occurred after the placement, separated from it by time and location. The school had provided an opportunity to meet the claimant, but that alone was insufficient.
5. The parties were invited to agree the consequential order.