Haringey London Borough Council v FZO [2020] EWCA Civ 180
DSN v Blackpool Football Club [2020] EWHC 695 (QB)
EXE v Governors of the Royal Naval School [2020] EWHC 596 (QB)
This article originally appeared in Issue 5 (May 2020).
Three recent cases have illustrated the application of a number of legal principles that frequently arise in child abuse cases, including those set out in WM Morrison Supermarket plc v Various Claimants [2020] UKSC 12 and Barclays Bank plc v Various Claimants [2020] UKSC 13, discussed above.
Haringey London Borough Council v FZO [2020] EWCA Civ 180
The Court of Appeal dismissed the Defendant’s appeal against a judgment extending the limitation period by some 25-30 years and awarding £1.1 million to a former pupil abused by a school teacher. The Defendant accepted vicarious liability whilst the pupil had been at the school, but maintained that the relationship was consensual thereafter. This was rejected: the judge was right to hold that conditioned consent resulting from a grooming process was not true consent. The court also rejected the argument that the relationship was not sufficiently close to the teacher’s employment for vicarious liability to arise after the pupil left school. The evaluative judgment that the teacher’s abuse of trust in the period leading up to his majority continued to operate thereafter would not be disturbed. As to limitation, the argument that adverse factors concerning the teacher’s credibility should not be weighed in the balance in considering whether to extend limitation under Limitation Act 1980 s.33 was rejected. Defendants challenging disapplication of the limitation period on the basis of the claimant’s lack of credibility took a risk of adverse findings being made about their own credibility and the issue could not be decided without assessing the credibility of rival accounts.
DSN v Blackpool Football Club [2020] EWHC 695 (QB)
The limitation period was extended by some 22 years to allow a claim arising from abuse by a football coach to proceed, notwithstanding the death of key witnesses including the alleged abuser in the intervening period. The low value of the claim was not a “trump card” to be played by the Defendant and was not one of the factors expressly identified in section 33(3), though the likely value of an award may be important where limitation is determined as a preliminary issue and there is likely to be some considerable time before trial [66]. For practical purposes it was impossible for the Claimant to raise the claim before he did, given in particular the effect of the abuse upon him. The allegations of abuse were accepted without qualification or reservation. Applying the two stage approach in Barclays, the relationship was akin to employment despite the fact that the coach was an unpaid volunteer and it was just and reasonable that vicarious liability should arise. He was a scout for the club and the club lent him credibility by “lavishing tickets and access on him and his protégés.” [160] At stage 2 it was held that the abuse was so closely connected with the relationship, even on a foreign trip, that the club should be vicariously liable. It was noted that the Claimant’s psychiatric injuries had been exacerbated by the club’s conduct since being notified of the claim: “They conceded nothing at all at any point and made no effort to sympathise or to reach out in ways that might have mitigated the difficulties faced by DSN in the years since disclosure”[189]. The Claimant was awarded general damages of £17,000 and a small amount of agreed special damages.
EXE v Governors of the Royal Naval School [2020] EWHC 596 (QB)
The case concerned whether a school was vicariously liable in tort for the actions of a kitchen porter in 1991 who had sex with a pupil who was 14. The judge declined to extend the limitation period given the deterioration in and availability and cogency of evidence. Moreover, notwithstanding that the acts were criminal offences, the judge considered that they were consensual and did not give rise to claims in tort. Neither was the judge persuaded that the school should be vicariously liable had there been any valid claims – the porter did not use his position at the school to get to know the pupil and the majority of the relationship took place after he left. The judge also held that the school had not been directly negligent in respect of the checks it conducted on the porter, who was not a member of the academic, boarding or administrative staff.
Robert Seabrook QC and Justin Levinson appeared for the Respondent in Haringey LBC v FZO. They did not contribute to this article.
