EWJ June 61 2025 web - Flipbook - Page 67
as this was merely pleading the statutory duty.
However, permission was given to amend the particulars to include what specific responsibilities the defendant was said to have assumed over the claimant.
In Armes v Nottinghamshire CC [2017] UKSC 60, the
defendant was found vicariously liable for the physical
and sexual abuse committed by foster parents. It was
accepted that the local authority had not been negligent in their selection process or supervision. However, the relationship between the defendant and the
foster parents was akin to employment. The reasons
given included the foster parents were not undertaking an independent business of their own, the service
provided by the foster parents was an integral part of
the defendant’s childcare services for the benefit of the
local authority, and the placement of a child in care
created the inherent risk of abuse as close control cannot be exercised by the local authority. The 2nd stage
was not contested by the defendant on appeal.
In matters involving local authorities and a failure to
remove or protect children from harm, whilst each
case turns on its own facts, claims which are more
likely to have some success are ones in which the
Claimant was accommodated by a local authority
when the abuse took place or was otherwise in their
care.
Human Rights Act 1998 (HRA) claims
Claims under the Human Rights Act 1998 are
frequently brought alongside claims for breach of duty
against local authorities. These are normally for a
breach of Article 3 ECHR (freedom from inhuman
and degrading treatment). Section 6 HRA includes
that it is unlawful for a public authority to act in a way
which is incompatible with a convention right, and
that “an act” includes a failure to act.
This was later followed in DJ v Barnsley MBC [2024]
EWCA Civ 841, where the local authority had placed
a child in an informal arrangement with his aunt and
uncle for 7 months before taking the child into care
with the aunt and uncle acting as foster parents. The
child suffered sexual abuse for several years, with the
local authority not found vicariously liable for the first
7 months as the child was not in care, but liable thereafter when he was in care and the aunt and uncle
recognised as foster parents. The court was quick to
note that this was not a general rule regarding foster
parents and each case was fact specific, especially as
some historic cases, as it was on those facts, were based
on the previous legislation at the time of the abuse, not
the Children Act 1989 [69].
Unfortunately, the updates on limitation only apply to
the Limitation Act 1980. As it stands, s. 7(5) HRA limitation is for a period of 1 year from the date in which
the act complained of took place or such longer period as the court or tribunal considers equitable having regard to all the circumstances. It is expected that
the lift on the limitation for common law claims will
have an impact on the circumstances the court takes
into account when consider the HRA limitation
period.
In MXX v A Secondary School [2023] EWCA Civ 996 a
school was found not to be vicariously liable for the
Claims against organisations
For a claim against an organisation or institution, a
claimant will have to prove on balance, that the abuse
occurred, that the defendant is vicariously liable for
the actions of the tortfeasor, and what injury was
caused.
For a claim against an organisation or institution, a
claimant will have to prove on balance, that the abuse
occurred, that the defendant is vicariously liable for
the actions of the tortfeasor, and what injury was
caused.
Mr Richard Pyper
Consultant Gynaecologist
MB, BChir, FRCS(Ed), MRCOG, FRCOG
Richard Pyper has written over 1250 Expert Reports
Lord Burrows gives a very helpful overview of vicarious liability in BXB v Trustees of the Barry Congregation of
Jehovah’s Witnesses [2023] UKSC 15 at [58] and goes
through the modern law on vicarious liability at [30] to
[57]. BXB, and in particular those paragraphs, are
recommended reading.
on Clinical Negligence in Obstetrics and Gynaecology in
the last 32 years. On Clinical Negligence for claimants and
defendants.
In essence, and as set out in BXB, the test for vicarious
liability comes in two stages:
1. Whether the relationship between the defendant
and the tortfeasor was one of employment or akin to
employment.
G
Clinical Negligence in Obstetrics & Gynaecology for 33 years.
G
Over 1250 Expert Medical Reports on a wide variety of subjects.
G
Special interest in Urogynaecology, pelvic floor surgery, urinary
incontinence and hysteroscopic surgery for menstrual problems.
G
14 Fitness to practise reports for the GMC.
G
Single Joint Expert in the Liverpool Urogynaecology litigation and
wrote 90 reports. Currently, many reports concerning vaginal
mesh and mid-urethral tapes (TVT and TOT).
2. Whether the wrongful conduct was so closely
connected with acts that the tortfeasor was authorised
to do, that it can fairly and properly be regarded as
done by the tortfeasor while acting in the defendant’s
employment or quasi-employment.
Contact Details:
Medico-legal secretary; Alayne Fawkes
Tel: 01903 741 154
Email: pms@pypermedical.co.uk
Website: www.pypermedical.co.uk
These cases are highly fact sensitive, and some
examples are considered below.
EXPERT WITNESS JOURNAL
Hareswith Cottage, West Chiltington Road, Storrington, West Sussex, RH20 4BP
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JUNE 2025
