As the Supreme Court is due to hear the appeal in the case of Trustees of the Barry Congregation of Jehovah's Witnesses v BXB later this year - when arguments will again focus on vicarious liability for sexual abuse - the case of MXX v A Secondary School highlights that organisations which have a primary caring role for children are not vicariously liable for everyone who comes into contact with the organisation. In this case, the court considered whether a school is vicariously liable for abuse carried out by a work experience student.

The claimant, MXX, was a year 8 pupil at the school. She was sexually abused by PXM, who was an 18 year old former pupil. PXM was undertaking a college course to become a PE teacher and as part of that course he approached the defendant with regards to undertaking a work experience placement (WEP) at the school for one week between 24 and 28 February 2014 which the defendant allowed. PXM was subsequently convicted in 2015 of a number of serious sexual offences perpetrated against the claimant.

The claimant alleged that the defendant was vicariously liable for any torts perpetrated by PXM. Whilst the defendant accepted that the claimant had been a victim of serious sexual abuse, it denied it was vicariously liable. 

In deciding whether the defendant was vicariously liable, the court had to consider the two stage test for the imposition of vicarious liability.

The first stage is to consider whether the relationship between the claimant and PXM was akin to employment and one that was capable of giving rise to vicarious liability. The second stage is to consider whether there was a close connection between the defendant and the tort committed by PXM.

In relation to the first stage, the judge found that this was not a relationship akin to employment. It was PXM who had approached the defendant asking for the opportunity to spend one week as a WEP in the defendant’s school. 

PXM was aged only 18 and he was unqualified. The purpose of the WEP was for PXM to learn from the defendant’s teachers. It was an altruistic gesture by the school and it cannot have been intended that the defendant would derive benefit from the presence of PXM in any real sense, notwithstanding that PXM performed some minor ancillary tasks during the WEP. PXM was supervised at all times, he was closely directed and was never given nor was it intended that he would have any responsibility for the teaching or other care of pupils.

The very limited role PXM played in the school’s activities barely went beyond his own learning. The WEP was always understood to be for no more than one week and there was no real degree of integration into the school’s business.

In relation to the second stage, the judge considered that even if the first stage of vicarious liability had been established, the second stage of the test for vicarious liability was not satisfied. The judge found that the entirety of the wrongdoing occurred many weeks after PXM’s relationship with the defendant had ceased. 

That was fundamentally different from wrongful conduct that begins when the abuser is in a relationship with a defendant and continues outside or beyond the scope of that relationship. PXM’s role was very limited and he was kept under close supervision at all times. He had no private access to the claimant at school, he had no caring or pastoral responsibility in relation to the claimant or any other pupil and he didn’t have any teaching responsibility. No aspect of the defendant’s function was delegated to him.  

Although the school required its pupils to treat PXM with respect, he was not placed in a position of authority over the pupils. The most that can be said about the relationship between the defendant and PXM was that it provided an opportunity for PXM to meet the claimant and that is not sufficient for a finding of vicarious liability.

Although the judge held that the claimant was undoubtedly the victim of appalling and criminal acts of sexual assault, she was not satisfied that the defendant was vicariously liable for the assaults perpetrated against her by PXM and the claim was dismissed.