19 Jul 2018
UK Supreme Court extends vicarious liability in sexual abuse claims – could Australia go down the same path?
By Dr Ashley Tsacalos, Nihara Sarker
The extension of the principle of vicarious liability in the UK resulting in a government agency being liable for the deliberate actions of a contractor will be monitored carefully by Australian lawyers.
A recent United Kingdom decision extended the principle of vicarious liability in the context of a sexual abuse claim. In Armes v Nottinghamshire County Council  UKSC 60, the UK Supreme Court held that a local authority was vicariously liable for the tortious conduct, specifically sexual, emotional and physical abuse perpetuated by foster carers against a child.
The foster child's claim
The claimant was taken into the care of the local authority in February 1985 — when she was seven years old. During that time, she was fostered out to Mr and Mrs Allison where she was physically and emotionally abused by Mrs Allison. Subsequently, she was also fostered out to Mr and Mrs Blakely and was sexually abused by Mr Blakely.
The Court had to decide two fundamental questions, whether the local authority was liable for the abuse suffered by the claimant, either due to:
- breach of a non-delegable duty of care; or
- through vicarious liability (in relation to the actions of the foster carers).
Local authority is vicariously liable
The Court held that the local authority did not owe a child in foster care a non-delegable duty of care in relation to abuse but that the local authority was vicariously liable for the abuse committed by the foster parents. This is despite the fact that the Court found that the local authority was not negligent in their selection and supervision of the foster parents at law.
The Court found that the local authority was vicariously liable because:
- the abuse was committed by the foster parents in the course of an activity carried on for the benefit of the local authority, namely "the care of children who had been committed to their care",
- the local authority had sufficient control over the foster carers;
- by placing the children in the care of foster parents, the local authority was creating the risk of the abuse committed by the foster carers; and
- the local authority was able to compensate the claimant and the foster carers were unlikely to be able to do so.
Implications in Australia and how this could affect you
In Australia, the furthest that courts have gone in expanding vicarious liability in a sexual abuse context to date is to suggest that employers may be liable for the intentional actions of employees in circumstances where there is "authority, power, trust, control and the ability to achieve intimacy with the victim" as per the High Court's observations in the 2016 decision of Prince Alfred College v ADC (2016) 258 CLR 134.
The widening of the principle of vicarious liability in the UK is a trend that could come to Australia. Following the Royal Commission into Institutional Responses to Child Sexual Abuse, there has been an increase in sexual abuse claims and litigation with most resolving prior to judicial determination. However, given the large amount of claims, there is a strong possibility that a case will arise with similar circumstances to Armes in the near future and, if the case goes on appeal, this UK decision is likely to be considered closely by the relevant appellate court.
Following the reasoning in Armes and the observations in Prince Alfred College, the following legal issues may arise specifically in the context of sexual abuse claims in Australia in the future, namely:
- vicarious liability may be imposed:
- beyond the well-established relationships to, for example, government agencies and foster carers,
- for the deliberate/intentional actions of third parties, in certain circumstances,
- like the local authority in Armes, even where an organisation has not been negligent and has discharged their duties at law, they may still be liable for third parties' tortious actions, such as for the actions of foster carers, if the principle of vicarious liability is extended as the Court did in Armes.