[2021] EWHC 1419 (QB)
Our thanks go out to Malcolm Johnson for the following summary taken from our December 2021 Newsletter
This is a lengthy judgment of Mr Justice Fordham and concerns the sexual abuse of a pupil at a music school by her teacher and guardian. The Crown Prosecution had declined to prosecute the teacher and limitation had expired over 15 years after the Claimant’s 21st birthday. The issues were a) limitation b) whether the alleged assaults took place and c) whether the Defendant was vicariously liable for the teacher.
Fordham J found for the Claimant on the issue of limitation. He commented that until the Claimant was well into her adult years, she saw the teacher’s sexual conduct towards her as his having “taken advantage of her”. and although she did not “forget” it, she did “push it to the back of her mind’. When in early 2013 (aged 31) she did report what had happened to her, the catalyst for doing so was that she had learned that there was an investigation into allegations of sexual abuse at the school. After that, she placed her trust in the criminal process. Whilst the passage of time could damage the evidence, the issues in the trial were narrow. The Court had to decide the factual questions of whether the essential allegations of sexual acts took place and to what extent, if those acts did take place, the school was vicariously liable. There was no issue of consent. Quantum was also agreed.
In relation to the factual allegations of abuse, Fordham J found for the Claimant. Both she and the teacher had been cross examined at length, and ultimately the judge did not find his evidence convincing. In relation to vicarious liability, the issue here was that the teacher had also been the Claimant’s guardian and the Defendant sought to argue that role did not make the school vicariously liable for his abuse. Fordham J pointed to Haringey LBC v FZO [2020] EWCA Civ 180 (Court of Appeal, 18.2.20 where the Court of Appeal had upheld the judgment of Cutts J at [2018] EWHC 3584 (QB)) (FZO). The Defendant, Haringey was found to be vicariously liable for all of the sexual assaults perpetrated by a teacher on a pupil, in all places and during all periods. In the Claimant’s case, there had been a “pastoral relationship between teacher and pupil”, which had then been “abused by the perpetration of regular sexual assaults on a pupil/former pupil”
The Defendant’s counsel submitted that if the teacher had been employed a guardianship agency to look after the Claimant, then vicarious liability would have fallen on that agency. In reply, Fordham J said such an example could give rise to “dual” vicarious liability on both the school and the agency. However, in this case the guardianship was something that was enabled by the Defendant school.
To read the actual judgment on BAILLII go to https://www.bailii.org/ew/cases/EWHC/QB/2021/1419.html