Before Lord Justice Butler-Sloss, Lord Justice Thorpe and Lord Justice Chadwick

[Judgment July 14]

Where a teacher sexually abused a mentally disabled schoolboy entrusted to his care, that did not amount to the performance of his duties in an unauthorised manner. It was an independent act outside the course of employment and therefore the local authority was not vicariously liable for the offences of the teacher.

The Court of Appeal so held in a reserved judgment, allowing the appeal of North Yorkshire County Council from the order made by Judge Spittle in Darlington County Court, on a preliminary issue, that the council was capable of being vicariously liable for indecent assault committed by the teacher. After a police investigation, the teacher was tried and convicted of seven counts of indecent assault on pupils not including the plaintiff.

Mr Nigel Baker, QC and Mr Anesh Pema for the council; Mr Simon Hawkesworth, QC and Mr Mark Grenyer for T.

LORD JUSTICE BUTLER-SLOSS said that the plaintiff, T, suing by his mother, suffered from epilepsy and mental handicap and had attended a special needs school.

In May 1991 he went on a school trip to Spain and as he required nocturnal supervision it was arranged that he would share a room with the deputy headmaster, Michael Stevens. The plaintiff alleged that during the visit he was subjected to sexual assaults by the deputy headmaster which caused serious psychological injury.

An action was brought against the council alleging that as employers of the deputy headmaster, they were vicariously liable for his criminal acts. No application was made to the Criminal Injuries Compensation Board since the offences took place in Spain.

The judge, in reliance upon Bracebridge Engineering v Darby ([1990] IRLR 3), held that the deputy headmaster was effectively in loco parentis in respect of the plaintiff with a duty to care for and supervise him. Therefore the deputy head's acts were so connected with his authorised responsibilities that they could be regarded as an improper mode of performing his duties.

In reliance upon the judgments in Jones v Tower Boot Co Ltd ([1997] ICR 254) and Caledonia Motor Group Ltd v Reid (unreported, November 7, 1996) her Ladyship held that Bracebridge was not an authority upon which the plaintiff could rely as it was decided in the context of the Sex Discrimination Act 1975 where there was a greater range of remedies available against the employer than at common law.

Mr Hawkesworth also relied on the bailment line of cases to argue that the conduct of the deputy headmaster was a perverted form of his duty of care towards the child and therefore the council was answerable for his conduct.

He relied upon Morris v C. W. Martin and Sons Ltd ([1966] 1 QB 716) where the plaintiff's mink coat, sent to the furrier to be cleaned, was stolen by an employee of the defendant. It was held that the defendant owed the plaintiff the duties of a bailee to take reasonable care of the coat and could not rely on an exemption from liability clause.

Her Ladyship stated that following the judgments in Heasmans v Clarity Cleaning Co Ltd ([1987] ICR 949) and in Makanjoula v Commissioner of Police of the Metropolis ([1990] Admin LR 215), the bailment cases could be seen as a category of their own or as an example of vicarious liability being imposed where an authorised act was performed fraudulently. In any event the rule in Morris had not been applied beyond the bailment line of cases and was not applicable to the present case.

It was difficult to visualise serious sexual misconduct being an unauthorised mode of carrying out an authorised act rather than an independent act outside the course of employment, therefore the judge was wrong to find the council capable of being liable for the deputy headmaster's actions.

Lord Justice Thorpe agreed and Lord Justice Chadwick delivered a concurring judgment.

Solicitors: Hammond Suddards, Leeds; Jacksons, Middlesbrough.