The decision of the UK Supreme Court in Armes (Appellant) v Nottinghamshire County Council (Respondent) [2017] UK SC60, handed down in October 2017, should be carefully considered by organisations which facilitate contact between individuals. Why? Because it may extend their liability for the actions of non-employees.

In Armes, the Supreme Court concluded that a local authority could be vicariously liable for abuse carried out by foster carers; while in their own homes and beyond the day-to-day control of the local authority.

The facts and circumstances of the case

The claimant was placed in foster care by the local authority in 1985 at the age of 7. While in care, she was abused in two separate foster homes.

She raised an action for damages against the local authority. She did not argue that the local authority had been negligent in vetting, selecting or supervising the foster carers. Instead she argued that the local authority was either or both, vicariously liable for the actions of the carers and in breach of a non-delegable duty of care for her wellbeing.

At First Instance (the original hearing) it was found, and not challenged thereafter, that Section 33 of the 1980 Limitation Act (which determines whether actions in England and Wales are time-barred) should operate so that the claim was allowed to proceed even though it was otherwise time-barred. However, at First Instance and on appeal to the Court of Appeal, the claimant failed on the grounds of fault advanced.

She ultimately appealed to the Supreme Court where Lord Reed gave the leading Judgment. Lady Hale, Lord Kerr and Lord Clarke agreed with Lord Reed and Lord Hughes dissented.

Non delegable duty of care

Lord Reed held that a non-delegable duty will only be applied in exceptional circumstances. He narrowed the question in this case down to whether the duty was one which the local authority was bound to perform itself, or one which it was bound to arrange to have performed by others. He ultimately concluded that the local authority was not under a duty to care for the child but rather to arrange, supervise and pay for someone else to do so. Accordingly, there was no failure in that duty. In so doing, the court refused to extend the principles of non-delegable duty set down in Woodland v Essex County Council [2013] UKSC 66 (where the local authority was found liable for the actions of a third party supervising a school child who got into difficulties during a swimming lesson). However, and significantly, Lord Reed found that a non - delegable duty can be breached by a deliberate wrong. Although his comments in this regard are obiter (not central to the case before him) they are likely to be persuasive in any future consideration of the point in lower courts.

Vicarious Liability

Lord Reed concluded that the local authority was vicariously liable for the actions of the foster carers.

In S v Walsall Metropolitan Burgh Council 1985 WLR there was no vicarious liability for the actions of the foster carers because they were not agents of the local authority. However it is clear that things have moved on since then. S was decided when vicarious liability was restricted to relationships of agency and employment. Later cases such as Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 ("the Christian Brothers Case'), extended the reach of vicarious liability but remained grounded in a consideration of whether the relationship was "akin" to employment.

In Armes Lord Reed noted that things had moved on again; commenting that "a more fine grained approach has been applied in more recent authorities". He referred to Cox (Respondent) v Ministry of Justice (Appellant) [2016] UKSC 10, a UK Supreme Court decision, where he gave the leading judgement. In Cox he concluded that control was less important than it might previously have been considered. His decision in that case was based on the principle that the person benefiting from the fact that the risk was being taken, should pay for the losses stemming from the activity.In Armes Lord Reed drew a distinction between being in control of how something is done and being in control of the fact that it is done. He referred to the level of control which an employer might have in relation to a professional employee. Accordingly, the fact that the local authority did not, and could not, control the operation of private family life in foster homes did not mean that the local authority could not be vicariously liable for the foster carers' actions. Lord Reed considered whether the fear of vicarious liability for the actions of foster carers would discourage foster care. However he concluded that the alternative, residential care, is more expensive and therefore unlikely to become more attractive. In any event, he also found deterrence was not the principal factor in determining vicarious liability. Instead he found echoing his comments in Cox, that the fundamental principle was "the organisation who benefits from the services being provided should bear the cost of harm which is wrongfully caused." In relation to the fear that a finding of vicarious liability would lead to large numbers of cases, he commented that if there are large numbers of cases, then the law should expose them now.

It is important to bear in mind that the decision was based on the legislative framework in force in the 1980s and not that which is in force at present. However, it seems unlikely that any consideration of the current statutory duties would lead to a different decision.

Lord Reed was not "readily persuaded" that there should be vicarious liability for wrongs committed by family members. This is a particular problem in the context of foster care where there are often "kinship carers" and it is difficult to understand a principled reason for drawing a line between abuse committed by family members operating as carers and abuse committed by third parties operating as carers. Indeed, in his dissenting Judgment Lord Hughes commented that this disparity underlined the error in finding that local authorities were vicariously liable for foster carers. It was his view that foster carers looked "a great deal more like independent contractors". He referred to what he termed important matters such as integration and control. Overall he believed it undesirable that family matters should be ventilated in the courts; "it was not either called for or justified but rather fraught with difficulty and contra indicated."

The implications of the decision

It is hard to avoid the conclusion that there were public policy considerations underlying Lord Reed's decision. The Independent Inquiry into Child Sexual Abuse, set up in July 2014 and the Scottish Childhood Abuse Inquiry, set up in October 2015 are currently hearing evidence in relation to historic child abuse in Scotland, England and Wales. In Scotland, The Limitation (Childhood Abuse) (Scotland) Act 2017 allows claimants to bring actions even although the claims would otherwise be time-barred. There have been several recent news stories about the inappropriate sexual behaviour of charity employees and Telford Council is currently under pressure to hold an inquiry in relation to reports of sexual exploitation.

If, as it seems to be, the current public view is that victims of abuse should be heard and compensated for what has happened to them; any legal argument in relation to liability will be heard in that context. Accordingly it seems that vicarious liability remains on the move.

This is something which should be at the forefront of the minds of those responsible for insurance and risk in any organisation which allows employees or volunteers direct unsupervised access to members of the public; and particularly to those in vulnerable groups. Not only because many of the historic legal barriers to obtaining compensation have been removed but also because the public awareness of such abuse and the presence of redress may well encourage presentation of claims which previously might not have been brought.


Kate Donachie

Legal Director