Court of Appeal rejects appeal against decision that acts of work experience placement student did not give rise to vicarious liability

About this case:

• Citation:
  [2023] EWCA Civ 996
• Judgment:
  External link
• Court:
  England and Wales Court of Appeal
• Judge:
  Lady Justice Nicola Davies

Claimant and appellant MXX originally brought her case to the King’s Bench division, where a Deputy High Court Judge ruled in favour of the anonymous respondent. She argued that the judge was wrong to conclude that no element of the torts had occurred during the work placement and the relationship between the defendant and the tortfeasor was not akin to employment.

The appeal was heard by Lord Justice Lewison, Lord Justice Jackson, and Lady Justice Davies. Justin Levinson appeared for the appellant and Adam Weitzman KC for the respondent.

After the end

The claimant joined the school in December 2013, when she was aged 13. In the final week of February 2014, a former pupil, PXM, then aged 18, undertook a WEP at the school, at a time when he was attending college hoping to qualify as a teacher of physical education. By early March 2014 PXM and the claimant were communicating on Facebook and exchanges continued until September 2014. In August 2014 PXM committed the torts of assault and battery against the claimant. He pled guilty to offences of sexual activity with a child in November 2015.

In August 2022 the Deputy High Court Judge dismissed the claim. She found that the interactions between the claimant and PXM at the school’s badminton club did not amount to grooming behaviour, and prior to April 2014 there was no significant communication between them. The judge was not satisfied that it had been proved that PXM had the intention of exploiting the claimant from the outset and no element of the tort had been committed during the WEP.

On vicarious liability, the judge found that there was not a relationship akin to employment. PXM had approached the defendant effectively asking for a favour and he had played a very limited role in the school’s activities. It followed that a one-week WEP could not amount to a relationship akin to employment. Further, the wrongdoing occurred many weeks after PXM’s relationship with the defendant had ceased, and the most that could be said was that the relationship had provided an opportunity for PXM to meet the claimant, which was not sufficient to meet the second stage of the test.

For the appellant it was submitted that the judge was wrong to conclude that the entirety of the wrongdoing occurred after the end of the WEP, and the torts were not sufficiently connected to PXM’s relationship with the defendant. The judge overlooked text messages that indicated that PXM had known she had a crush on him while he was doing his WEP and had tried to engineer opportunities to spend time with her by inviting her to the badminton club.

Not inextricably woven

Lady Justice Davies, with whom the other judges agreed, said in her opinion: “In considering the limited evidence as to the events which took place during the course of the WEP, I believe the Judge overlooked evidence, or aspects of the evidence.”

She explained further: “The Judge did not confront the obvious inference from the identified Facebook messages that the claimant and PXM had an immediate sexual interest in each other, nor does the Judge explain what she made of the Facebook exchange. The Judge attached no significance to the fact that the Facebook messaging started within a week of the WEP. What innocent interest could PXM have had in inviting the claimant to be a Facebook friend when he knew it was forbidden?”

On whether there was a relationship akin to employment, Davies LJ said: “The reality of the relationship as between the defendant and PXM was that the defendant identified the terms on which PXM would be at the school. It required him to read and accept the defendant’s procedures and guidance which applied to its members of staff, it regulated PXM’s time, supervised him and directed and controlled what PXM did. Pupils were told to treat him as a member of staff.”

However, addressing whether there was a close connection, she continued: “PXM’s access to the claimant at school was limited as he was, or should have been, kept under close supervision at all times. Even allowing for the fact that PXM was to be addressed as if he was a member of staff, he held no position of authority over the pupils in the school. It was not until PXM left the school that any communication took place on Facebook and such communication was specifically prohibited by the school.”

Davies LJ concluded: “Given the limited nature of PXM’s role during the course of one week, the facts do not begin to satisfy the requirements of the close connection test. The grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant’s school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM.”

Accordingly, while the Court of Appeal found for the appellant in respect of her first three grounds of appeal, it found for the respondent on the fourth ground and accordingly dismissed the appeal.