MXX v A Secondary School

Vicarious liability requires both a relationship akin to employment and a sufficiently close connection between the authorised activities and the wrongdoing. A work-experience participant need not be paid for the relationship to qualify. Integration, benefit, close direction, safeguarding regulation, treatment as staff and risk creation may support stage one. Stage two nevertheless requires more than status, opportunity or but-for causation. A short placement involving limited supervised assistance, with no pastoral responsibility, authority or private access, did not make later grooming and sexual assaults closely connected with the participant’s work. Grounds 1 to 3 succeeded, but ground 4 failed, so the appeal was dismissed.

The appellant was a 13-year-old pupil at the respondent secondary school. A former pupil, PXM, aged 18, undertook a one-week work-experience placement at the school while seeking to qualify as a PE teacher. After the placement he communicated with the appellant through Facebook and later sexually assaulted her.

The appellant claimed damages for recognised psychiatric illness and alleged that the school was vicariously liable. On 19 August 2022, HHJ Carmel Wall, sitting as a Deputy High Court Judge, dismissed the claim. The appeal challenged factual findings about grooming, the timing of the tort of intentional infliction of harm, and both stages of the vicarious liability test. The central issues were whether PXM’s relationship with the school was akin to employment and whether the wrongdoing was sufficiently closely connected with his authorised activities.

1. Ground 1. An appellate court will rarely interfere with factual findings, including evaluations and inferences, but may do so where there is an identifiable error, including a demonstrable failure to consider relevant evidence. The principles in Fage UK Limited v Chobani UK Limited [2014] EWCA Civ 5 and Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 applied. The trial judge had failed to address material Facebook evidence bearing on PXM’s motive and the commencement of grooming. Ground 1 was allowed, and specified factual findings were set aside.
2. Ground 2. The tort of intentional infliction of harm requires unjustified conduct, an intention to cause at least severe mental or emotional distress, and physical harm or recognised psychiatric illness. Recklessness is insufficient, although intention may be inferred from the facts. Grooming is assessed as a course of conduct rather than separated from the later abuse. On the assumption that grooming began during the placement, the conduct and mental elements were made out during it. Ground 2 would therefore have been allowed, but the conclusion was conditional.
3. Stage one. Applying the principles in Christian Brothers and subsequent authorities, the absence of salary did not prevent a relationship being akin to employment. PXM carried out work forming part of the school’s PE activities, for the school’s benefit, under close direction and control. He was required to comply with staff safeguarding policies and was held out to pupils as a member of staff. Stage one was satisfied. Ground 3 was allowed.
4. Stage two. The close-connection test requires a factual link between the wrongdoing and authorised activities. But-for causation, opportunity and status alone are insufficient. The same test applies to sexual abuse, although pastoral responsibility and entrusted care may be important features. PXM had no caring or pastoral responsibility, no independent authority, no private access and only a limited, closely supervised role lasting one week. The grooming and assaults were not inextricably woven with his authorised work. Ground 4 was dismissed.

The school was therefore not vicariously liable. Grounds 1 to 3 were allowed, ground 4 was dismissed, and the appeal was dismissed.

• Court of Appeal (Civil Division) — grounds 1 to 3 allowed, ground 4 dismissed, and the appeal dismissed: [2023] EWCA Civ 996.
• King’s Bench Division — on 19 August 2022, HHJ Carmel Wall sitting as a Deputy High Court Judge dismissed the claim, holding that the respondent was not vicariously liable.