One of the most difficult challenges when responding to claims for damages consequent upon sexual abuse is trying to determine who is potentially liable for payment of claims, provision of care or other rehabilitation services.
It is clear that anyone who abuses another person will bear personal responsibility but they are often not a real target for reparations as they often have limited assets or, as in many non-recent cases, they have died or cannot be located.
In advance of what may be a large number of claims against sports organisations, particularly football teams, legal determination on the extent of vicarious liability for independent contractors is timely. A trial of a preliminary issue in Various Claimants v Barclays Bank Plc  EWHC 1929 (QB) concluded that Barclays (“the Bank”) was vicariously liable for the intentional sexual assaults of a doctor retained to conduct pre-employment medical examinations of prospective employees.
A group of 126 claimants are pursuing claims against the Bank for damages for alleged sexual assaults perpetrated by a Dr G Bates between 1968-1984. The allegations emerged in 2013, when a police investigation took place, but the doctor had died in 2009 so there was no criminal prosecution.
The issue of vicarious liability for foster parents in cases where there have been allegations of sexual abuse remains a fertile ground for litigation with another judgment handed down this week, whilst the Supreme Court is likely to hear the appeal in NA in early 2017.
In VN & SN v London Borough of Brent, VK & AK  EWHC 936 (QB). the claimants alleged that they were physically, sexually and emotionally abused by their foster carers.
It was contended on behalf of the claimants that the defendant local authority was:
- Negligent in its approval and supervision of the foster carers and placement of the claimants; and
- Strictly liable on the basis of vicarious liability and a non delegable duty.
Sir Robert Nelson found that the claimants had not established their allegations of abuse. However in obiter comments he noted that had abuse been established he would have been bound by the NA decision and thus have rejected the claimants’ arguments on both vicarious liability and non delegable duty. He considered that the claimants attempt to distinguish their claim from that in NA did not succeed because “the Children Act 1989 and subsequent regulations did not affect the heart of the decision in NA.”
It is clear that vulnerable children when placed in foster care should be safe and any abusive behaviour can only be condemned. However extending vicarious liability or the doctrine of a non-delegable duty to cover foster parents seems to be an extension too far because of the wider implications that would have for the ability of foster parents to provide a family environment to the children in their care. It is clear however that this will continue to be a subject for consideration by the courts and in due course possibly by the IICSA.
Amy Clarke, associate
The Supreme Court has given permission to the appellant (claimant) to appeal in the case of NA v Nottingham County Council.
Last night’s edition of the Moral Maze on BBC Radio 4 considered some of the difficult moral issues which arise in connection with allegations of historical sexual abuse, including where the accused is dead. Peter Hitchins, who has commented and spoken widely on the case of Bishop George Bell, contributed along with others including Barbara Hewson, known for her previous public comments about matters relating to historical allegations and a somewhat controversial suggestion of a reduction in the age of consent to age 13. Continue reading