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Archive for November, 2017

Child abuse: council liable for foster parents

VICARIOUS LIABILITY

Case Armes v Nottinghamshire County Council (2017) The Times, November 6, Supreme Court

Facts A was taken into care by NCC in 1985 when she was aged seven. She was physically and sexually abused by successive foster parents with whom she was placed while in care. NCC had not been negligent in the selection or supervision of the foster parents. The issue was whether NCC was liable to A.

Decision 1. NCC was liable.

  1. The doctrine of vicarious liability could only apply where the relationship between the defendant and the tortfeasor had particular characteristics justifying the imposition of such liability.
  2. A classic example of such a relationship was that between employer and employee. The doctrine could also apply where the relationship had certain characteristics similar to those found in employment, subject to there being a sufficient connection between the relationship and the commission of the tort.
  3. In Cox v Ministry of Justice the Supreme Court referred to five incidents of the relationship between employer and employee as making it fair, just and reasonable to impose vicarious liability and which could properly give rise to vicarious liability where other relationships had the same incidents and could be treated as akin to employment:

* The employer was more likely to have the means to compensate the victim than the employee and could be expected to have insured against that liability;

* The tort would have been committed as a result of activity being taken by the employee on behalf of the employer;

* The employee’s activity was likely to be part of the business activity of the employer;

* The employer, by employing the employee to carry out the activity, would have created the risk of the tort committed by the employee;

* The employee would have, to a greater or lesser degree, have been under the control of the employer.

  1. The relevant activity of NCC was the care of children who had been committed to its care. It was under a statutory duty to care for such children. In order to discharge that duty, so far as it involved the provision of accommodation, maintenance and daily care, it recruited, selected and trained persons who were willing to look after children in their homes as foster parents. It inspected their homes before any placement was made.
  2. NCC paid allowances to foster parents, provided them with equipment and provided training. Foster parents were expected to co-operate with social workers with whom they had regular meetings. NCC involved foster parents in decision-making and required them to co-operate with arrangements for contact with the child’s family.
  3. Foster parents could not be regarded as carrying on an independent business of their own. They provided care to the child as an integral part of its child care services.
  4. It was impossible to draw a sharp line between the activity of NCC and the foster parents. It was NCC which possessed parental powers in relation to the children.
  5. NCC exercised powers of approval, inspection, supervision and removal without any parallel in ordinary family life. It exercised a significant degree of control over what the foster parents did and how they did it.
  6. Vicarious liability was only of practical relevance where the principal tortfeasor could not be found or was not worth suing and the person sought to be made vicariously liable was able to compensate the victim of the tort.
  7. These conditions were satisfied in the present context. Most foster parents had insufficient means to meet a substantial award of damages and were unlikely to have relevant insurance. NCC could more easily compensate the victims of injuries, which were often serious and long lasting.
  8. Vicarious liability would not be imposed if the abuse had been perpetrated by the child’s parents, if the child had been placed with them, because the parents would not have stood in a relationship of the kind described in Cox v Ministry of Justice.

Mediation: an extra layer of profit?

Mediation

It may appear to outsiders to be bizarre that the main aim of English civil procedure is to avoid litigation. A legal system has become so complex and expensive that those in charge of it advise users to avoid it if at all possible. Alternative dispute resolution (ADR) is highly recommended by the drafters of the reformed civil procedure rules. It is expressly stated that litigation should be a last resort. A refusal to consider ADR may have costs implications – once again, money is the key.

Mediation is one form of ADR. It consists of a sort of shuttle diplomacy between the parties and their legal advisers with the aim of settling disputes out of court.

Some clients have concluded that mediation has developed into yet another money-making quasi-legal racket. Its aim is to avoid litigation and it is said to be cheaper than litigation, which gives plenty of scope for high charges.

There is an absurdity about a system of civil procedure which is so expensive to operate that claimants are urged to use it as a last resort and to seek alternative means of dispute resolution. This means, in effect, that the massively sophisticated machinery for civil claims is available only to the very rich.

There is every chance that we are witnessing the development of another layer of legal procedure which, although not expensive to the crippling extent of full-tilt litigation, still costs more than most people can afford. Alternative dispute resolution is now, effectively, compulsory because a refusal to mediate carries costs implications.

The potentially rich pickings of mediation are illustrated by a circular advertising a commercial mediator training course at a cost of £2950 plus VAT. A worthwhile investment in another layer of law for the rich.


Schools: health and safety horrors

SCHOOLS

Repton School fined for safety failings

In November 2013 Christine Bywater went to Repton School to watch her grandson play football.  She left the school pavilion and stepped on a stone staircase. She fell from the staircase to the ground five metres below. She suffered multiple injuries. The stone staircase had a parapet running along its edge but no handrail. This was a foreseeable incident which could easily have been avoided if reasonable measures, for example the fitting of guard rails, had been taken. Published guidance exists regarding appropriate edge protection and dimensions for handrails which the school could have used to identify the appropriate standard.

 

School camping fire

In July 2011a group of girls from a school in East Ham went on a camping trip in West Sussex. One of the girls poured methylated spirits from a five-litre container onto a cooking stove when she thought that it was going out. This caused a flashover. The girl suffered severe burns to her hands, arms, face, neck and legs. The incident could have been avoided if basic precautions had been taken. Fuel should have been kept in the correct containers, safely stored and simple procedures followed for lighting the stove.

 

Paint stripper burns

In January 2012 Bret Thomas, a school pupil then aged 16, was on an extended work experience placement at Motorhouse 2000 Ltd’s site in Cannock. He was told to help an employee who was refilling a wheel stripping tank. The employee poured paint stripper from plastic containers into the tank and then passed the containers to Thomas who removed their labels and cut them in half. As he was cutting the last container with a Stanley knife, the container flicked up and the remains of the paint stripper splashed into his eyes and face. He was not wearing face or eye protection. He suffered burns to his face and eyes. His vision was seriously affected for a month and his face is scarred.