Published October 13, 1999

Before Lord Justice Swinton Thomas, Lord Justice Waller and Mr Justice Jonathan Parker

Judgment October 7, 1999

Where a house-father in a children's home sexually abused boys in his care, the company which ran the home and employed him was not vicariously liable for the abuser's failure to report the risk or fact of harm caused by his own acts.

It was common ground that the company was not vicariously liable for the sexual abuse itself as that was independent conduct wholly outside the scope of his employment and it was unrealistic to extend the principle of vicarious liability to the abuser's failure to report what was by its nature a secret act.

It was unrealistic to attempt to distinguish the actual act from the fact that the abuser had kept it secret from his employers.

The Court of Appeal so held when allowing an appeal of Hesley Hall Ltd, from a decision of Judge Walker in Halifax County Court in October 1999 whereby he found for the claimants on the issue of liability with damages to be assessed.

The claimants, respondents to the appeal, were residents at Axeholme House, a boarding annex of Wilsic Hall School at Wadsworth, Doncaster, where maladjusted and vulnerable children were sent, mainly by local authorities. It offered residential accommodation, care and tuition to try to enable boys of later school age to adjust to normal living. The school was owned and run by the appellant, a limited company.

While resident at the school, the three respondents were, at different times between 1980 and 1982, sexually abused by the house father, Dennis Grain.

The abuse did not come to light for some years but in 1995 Grain was convicted in respect of his abuse of the respondents, and of other boys at other homes not belonging to the appellant, and sentenced to seven years imprisonment.

The respondents subsequently brought an action for damages against the appellant on the basis that the defendant owed a duty of care to each of them since, having contracted to take children into their care, it had failed in that duty of care by allowing the situation to arise in which sexual abuse could take place.

Mr Andrew Collender, QC and Mr Andrew Miller for the company; Mr Richard Maxwell, QC and Miss Rosalind Coe for the respondent applicants.

LORD JUSTICE SWINTON THOMAS said that the appellant admitted it had a duty of care to take all reasonable steps to safeguard the respondents, and other pupils, in their physical, moral and educational development while at the school.

Grain was appointed as house-father and his wife as house-mother with responsibility for the boys, including the respondents, while they were at the home.

The trial judge held that, as such, Grain was under a duty to report to the appellant any harm which he perceived had come or might come to any of the boys with a view to the appellant taking remedial or preventative steps.

The failure to report the harm to the appellant was a failure to carry out a duty which Grain owed generally and specifically to each boy in his care.

The judge held that the appellant could not be liable for the actual physical acts of sexual abuse by Grain, but made a distinction between those physical acts and the breach of duty of Grain to the claimants in failing to report those physical acts and the breach of duty of Grain to the claimants in failing to report those acts.

Without analysing the nature of vicarious responsibility for Grain's actions, the judge went on to hold that the appellant was therefore vicariously liable for Grain's failure to report the acts of abuse.

The principles underlying the doctrine of vicarious liability had always been elusive and to an extent the law proceeded on a pragmatic basis. The doctrine had developed incrementally and to a substantial extent on a practical basis.

It was clear that Grain owed to each boy a duty not to assault him either physically or sexually and a duty not to embark on such acts and to report his own acts so as to prevent repetition.

The judge was right to find that the consequence of a report of abuse upon a boy would undoubtedly have resulted in the appellant removing the source of the harm by dismissing G and reporting the incident to the police.

However, an act of indecent assault on a pupil was an independent act outside the course of employment and it was common ground that the appellant was not vicariously liable for the abuse itself: see T v North Yorkshire County Council (The Times September 10, 1998).

The act of sexual abuse of children by a person responsible for their care and welfare was by its nature a secret act and it was unrealistic to attempt to distinguish the actual act from the fact that the abuser kept those acts secret from his employers or failed to inform them of the risk that he would repeat them.

The fact that Grain did not report that he was abusing the respondents was integral to that abuse and was an unauthorised act wholly outside the course of his employment and could not be construed as an authorised act done by an employee in unauthorised manner.

It was part of conduct outside the scope of his employment. Accordingly, the appeal would be allowed.

Lord Justice Waller and Mr Justice Jonathan Parker gave concurring judgments.

Solicitors: Wansbroughs Willey Hargrave, Leeds; Winnard & Colquhoun, Dewsbury, Grindeys, Stoke-on-Trent and Last Cawthra Feather, Shipley.