Is a school liable for the criminal behaviour of its teachers towards students who have left the school?
This very recent English case raises the interesting issue of whether a school can be vicariously liable for the sexual abuse of a student by one of its teachers where the abuse began while the student was at school and continued for some years after that.
FZO, the initials used in the judgment to anonymise the claimant, was born in 1966. He claimed damages for personal injury, loss and damage as a result of sexual abuse and assaults committed upon him by a physical education teacher at a London school, where he was a student from 1980 until 1982 (when he left briefly to attend another school before returning) and then again for a short time in 1983/4. FZO alleged that these assaults continued after he left the school up until and including 1988. FZO sued the London Borough of Haringey which operated the school on the basis that it was vicariously liable for the teacher’s actions.
In 2014, the teacher pleaded guilty to two counts of indecent assault (one count relating to multiple incidents of kissing and touching between February and September 1980 when FZO was 13 and the other to a specific occasion when FZO was made to perform oral sex upon the teacher at a mosque between 1980 and 1982 when he was 14 or 15) and two counts of buggery (one count relating to multiple incidents between 1981 and 1982 when FZO was 14 and a similar count between 1981 and 1982 when FZO was 15). The teacher was sentenced to 12 years in jail, later reduced to 8 years.
In FZO’s civil claim against the Borough, he said that, shortly after his arrival at the school, he was raped by another man. Badly affected by this and unable to turn to his parents, FZO confided in the teacher who encouraged him to do so. The teacher told FZO that this meant that he was gay and that if this became known people would not understand and dislike him and his parents would throw him out of the family home. By contrast he, the teacher, would understand, like him and be his friend. By this means, FZO alleged that the teacher groomed and manipulated him into sexual activity which included the anal rape of him almost from the start. There then continued frequent sexual activity between them until FZO was about 21 years with very occasional contact after that. FZO asserted that he suffered complex post-traumatic stress disorder as a result of the abuse.
The teacher admitted that he had “sexual relations” with FZO from about September 1980, that such activity constituted an assault and that it was abusive by reason of FZO’s age and his inability to consent to the assault. The sexual contact was admitted to have been regular but not daily. There was some dispute as to the precise activity but the teacher admitted raping FZO. He made no admissions as to causation or loss. He raised the limitation defence.
The Borough accepted vicarious liability for the teacher’s assaults while FZO was first at the school between 1980 and 1982 but not after that. It asserted that after FZO left the school there was clear evidence that he was consenting to the activity. It made no admissions as to causation or loss. It too raised the limitation defence.
While the Court had to decide a number of matters, our focus is on the issue of whether the Borough was vicariously liable for the assaults which occurred after FZO ceased to be a student at the school up until 1988? The trial judge found:
I have considered carefully whether the connection between [the teacher’s] employment and his wrongful conduct was broken after [FZO] left Highgate Wood in 1984 such that it would no longer be right for the [Borough] to be held liable for them after that time. In my view it was not. The later assaults, as I have found them to be, were simply a continuation of the behaviour that commenced while and because the [teacher] was a teacher. This conduct is thus indivisible from that which occurred while [FZO] was a pupil at the school. I consider it just in those circumstances for the [Borough] to be held liable for it.
The Borough then appealed to the English Court of Appeal.
In the United Kingdom, when determining whether an employer is vicariously liable for the actions of its employee, one first asks what was the nature of the job. Then one asks whether there was a sufficiently close connection between the employee’s position and his wrongful conduct to make it right for the employer to be held liable. The Court asked: Was it the abuse of the position of trust, created in the period up to 1984 and undoubtedly within a sufficiently close connection, that was still operating upon [FZO]? The answer was yes. The Court found that the control and manipulation of FZO (“grooming”), begun during the teacher’s employment by the Borough, continued to be operative upon FZO, rendering his participation in subsequent sexual activity merely submissive rather than consensual. That situation was caused by what happened when the relevant relationship undoubtedly satisfied the “sufficiently close connection” criterion for vicarious liability.
There are two Australian decisions relevant to this English case. The first is the High Court of Australia’s judgment in Prince Alfred College v ADC. In this case, a boarding housemaster at the College sexually abused a 12 year old boarder. While that boy’s claim was unsuccessful because it was brought out of time, the High Court discussed at length the potential vicarious liability of the College. The Court was critical of the English decisions which looked for the “sufficiently close connection” to find the employer liable. The Court noted that the English judges were looking for a sufficiently close connection to make it “fair and just” to impose liability. Our High Court was concerned that this requirement imported a value judgement on the part of the primary judge which, even if explained by reasons, would not proceed on any principled basis or by reference to previous decisions.
The High Court said that the proper approach was to consider any special role that the employer had assigned to the employee and the position in which the employee was placed as a result vis-à-vis the victim. “In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.”
The practical relevance of these cases is found when considering the risks of running a boarding house or holding overnight excursions as, in both cases, staff may be placed in positions of authority and trust, and have the ability to achieve intimacy with students. For help with your management of risk in such situations, please contact David Ford.