[2021] EWHC 782 (QB)
Mr Justice Cavanagh
“1. The claimant, SKX, claims damages against the defendant for personal injuries arising from childhood sexual abuse. The abuse was carried out in 1989 by the Chief Executive of the privately-run children’s home (Bryn Alyn) to which the claimant had been sent at the age of 15, whilst in the defendant’s care. The claimant does not seek damages on the basis that the defendant local authority was directly at fault for the abuse that he suffered. Rather, the claimant contends that that the defendant is liable on one of two alternative grounds, namely that the local authority is vicariously liable for the acts of the Chief Executive of the children’s home, or that the local authority’s duty to protect and to care for the claimant was a non-delegable duty, so that the defendant is liable even though the defendant was not itself at fault for the abuse suffered by the claimant.”
In this case the Claimant had been deprived of any compensation for the abuse he suffered because:-
- Although part of the North Wales Group Action, his allegations were against John Allen, and as such the Defendant Insurers escaped liability because of an exemption in their insurance contract which excluded wrongdoing by managers of Bryn Alyn.
- He had previous criminal convictions and therefore lost in his Criminal Injuries Compensation Claim.
- He thus sought compensation from the transmitting authority (Manchester City Council) on the basis of the cases of Woodland v Essex, and Armes.
The issues for the Court were:-
“(1) Whether the defendant is vicariously liable for the actions of the abuser?;
(2) Whether the duty of care owed by the defendant to the claimant is non-delegable?; and
(3) Given that the primary limitation period had expired by the time the claimant commenced these proceedings, should the claim be struck out as being out of time, or should the Court exercise its discretion under section 33 of the Limitation Act 1980 to extend time?”
The Court held:-
- Vicarious Liability did not apply on the basis that the relationship between the transmitting authority and Bryn Alyn was not akin to employment “There was a genuine arms-length relationship of independent contractor between the defendant local authority and the business that John Allen worked for, and this is, in my view, fatal to the argument that the defendant is vicariously liable for John Allen’s actions.”
- There was no non-delegable duty of care because the facts were more or less identical to Armes where it was held that there was no non-delegable duty of care “as Armes, the central question is whether the defendant local authority had a statutory duty (1) to provide children such as the claimant with day-to-day care, or only (2) to arrange, supervise and pay for it. The clear answer, in light of the reasoning in Armes, is (2): a local authority’s duty under the 1980 Act, was to arrange, supervise and pay for the child’s day-to day-care. There was no non-delegable duty to ensure that care was taken for the claimant whilst he was placed with a third party in accordance with the defendant’s power so to do under section 21(1)”
- The Judge decided that although 4 of the 5 criteria in Woodland were present “The criterion which is not present is number (4), namely that: The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed toward the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it”
- The case was not out of time and the Judge exercised his discretion to allow the case under S.33 Limitation Act 1980 in that there had been no appreciable prejudice to the Defendants because there had been a reasonably recent conviction of John Allen his abuser including a charge in the Claimant’s favour
To read the entire judgment on BAILII follow this link