The British Columbia Court of Appeal found in H.N. v. School District No. 61 (Greater Victoria) that the School District was not vicariously liable for the sexual abuse perpetrated on a student during private tutoring sessions.

HN alleged that he was sexually abused by Mr Redgate who was recommended as a tutor by the school English teacher. Mr Redgate tutored HN during lessons as well as at HN’s home address and Mr Redgate’s home address. Whilst it was alleged that HN had been groomed at the school the abuse did not occur on school grounds. 

The English teacher who recommended Mr Redgate was aware Mr Redgate was seeing HN at his home, an arrangement which was contrary to the school’s policy.

The Appeal Court upheld the decision of the trial judge on the basis that providing a potential abuser with the “mere opportunity” to commit abuse of a vulnerable child was insufficient to make out vicarious liability. There must be a strong connection between what the employer was asking the employee to do and the wrongful act.

The court also clarified that the vulnerability of potential victims did not itself provide the “strong link” between the enterprise and the sexual assault in order to establish a finding of vicarious liability, although it was a factor to be considered in terms of the wider circumstances. 

It was important to consider Mr Redgate’s role as a tutor and the extent of any power and intimacy created by the arrangements put in place. The tutoring in this case provided only an opportunity to groom HN but the abuse itself occurred away from the school.  

The court found that Mr Redgate had subverted the slight opportunity created by the school’s tutorial arrangements for his own ends. This was not sufficient to establish the strong connection required for vicarious liability. Mr Redgate was not placed in a position of trust, care or protection in respect of HN and was not expected to be alone with him outside of the school. 

Comment

Although this is a Commonwealth decision, it will be of interest to practitioners in England given the continuing developments in the law of vicarious liability. 

The case follows a recent trend of recent decisions including Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 which have limited the widening of the scope of vicarious liability. 

It reinforces that there must be a “strong” connection between the alleged abuse committed and the alleged perpetrator’s employment in order to reach a finding of vicarious liability on behalf of the institution. Providing a perpetrator the opportunity to perpetrate the abuse was not enough to establish liability.