MXX v A Secondary School
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lord Justice Peter Jackson,Lord Justice Lewison |
| Judgment Date | 25 August 2023 |
| Neutral Citation | [2023] EWCA Civ 996 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001876 |
[2023] EWCA Civ 996
Lord Justice Lewison
Lord Justice Peter Jackson
and
Lady Justice Nicola Davies
Case No: CA-2022-001876
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KING'S BENCH DIVISION
HER HONOUR JUDGE CARMEL WALL (SITTING AS A DEPUTY HIGH COURT JUDGE)
QB-2020-002489
Royal Courts of Justice
Strand, London, WC2A 2LL
Justin Levinson (instructed by Bolt Burdon Kemp) for the Appellant
Adam Weitzman KC (instructed by DWF LLP) for the Respondent
Hearing date: 29 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 25 August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
At the core of this appeal is the issue of vicarious liability, arising from the tortfeasor's wrongdoing in respect of a pupil at the defendant school. The tortious acts occurred subsequent to a week during which the tortfeasor took part in a work experience placement (“WEP”) at the school. Findings of fact made at trial are challenged. In issue are how the “relationship akin to employment” test and the “sufficiently close connection” test operate in the context of a WEP.
The background
The defendant (respondent) is a co-educational secondary school providing education for children aged 11 to 16. In December 2013 the claimant (appellant), then aged 13, joined the school. Between 24 and 28 February 2014 the tortfeasor (“PXM”), one of the defendant's former pupils, undertook a WEP at the school. He was aged 18 and attending college hoping to qualify as a physical education (“PE”) teacher. By early March 2014 PXM and the claimant were communicating on Facebook and exchanges continued until September 2014. In August 2014 PXM committed the torts of assault and battery against the claimant. In September 2014 he was arrested and on 2 November 2015 PXM pleaded guilty to sexual activity with a child by penetrating the claimant's mouth with his penis (count 2), penetrating the claimant's vagina with his fingers (count 3) and two counts of causing a child (the claimant) to watch a sexual act by looking at an image of a person engaging in sexual activity.
The trial
The claimant sought damages in the agreed sum of £27,500 for personal injury (recognised psychiatric illness) consequent on the sexual assaults. On 19 August 2022 HHJ Carmel Wall sitting as a Deputy High Court Judge (“the Judge”) dismissed the claim, holding that the defendant is not vicariously liable for the torts committed against the claimant by PXM.
At trial the claimant gave evidence. PXM was not called by the defendant. The defence witnesses included AB, the defendant's current Deputy Head Teacher who in 2014 was an Assistant Head Teacher; EF, the defendant's current and 2014 Head of Student Support Services and a designated safe-guarding lead; and CD, the Head of the PE Department in 2014, an Assistant Head Teacher in 2022.
The Judge described the claimant as being a troubled adolescent in 2014, but by the time of the trial she was a mature woman with family responsibilities and professional aspirations. The Judge identified the starting point for findings of fact as the contemporaneous documentary evidence which included police interviews and the Facebook messages between the claimant and PXM. The recovered messages begin in July 2014; the claimant said that previous messages had been exchanged but she deleted them at the instigation of PXM who wanted to ensure that their relationship remained a secret. The first time PXM sent the claimant indecent images of himself was on 4 July 2014.
The claimant's pleaded case as to the first interaction between herself and PXM focused upon his suggestion to her that she should attend the school's badminton club. In her first witness statement dated 22 August 2021 she stated:
“On one of the final days of his training at the school, I saw [PXM] talking to my friend… He then called my name and told me to come over. … I had never spoken to him before … this was our first conversation. He asked me if I wanted to play badminton after school as he ran the after school club. I told him that I did not know how to play badminton but [PXM] said that he would teach me to play. I went to the badminton club that afternoon and PXM stood behind me and showed me how to hold the badminton racket and hit the shuttlecock. He paid me a lot of attention, which was nice because I was so unhappy at the time and was being bullied.”
The Judge identified “the only relevant reference” in the Facebook messaging as to the circumstances in which the claimant first had any meaningful interaction with PXM as messages on 18 August 2014 which she set out as follows [54]:
“MXX: … I remember the first time I ever spoke to you:) omg xx
PXM: When was that then Xx
MXX: In school? Lunch, Wednesday was when I spoke to you, you were just so fucking hot: (and still are!! And I was ugly I look like trash in the uniform omg:,) I was like how old are you, you would [not] tell me so I asked daisy, the I was like omg only 4 years:,) then I ran off:.) Then I got closeoth daisy e.c.t xx
PXM: I remembering you running of shouting it's not that much of an age difference haha Xx
MXX: Omg:,) I had the biggest crush on you, I even had the fucking courage to talk to you again asking can you teach my set #TOP SET. Then you didn't: (xxxx”
The Judge's findings of fact
The claimant transferred to the defendant's school in December 2013 because of bullying at previous schools. PXM would not have known of the circumstances of her becoming a pupil at the school [65] – [68].
Prior to commencing his WEP, PXM attended an induction meeting with CD and was told by CD that he would have to be with a member of staff at all times. CD went through the defendant's policy documents and written guidance with PXM which included “Guidance for safe working practices for the protection of all children, young people, vulnerable adults and staff at A Secondary School”. The guidance applied to all adults working or volunteering for the school and stated that: “A relationship between a member of staff and a student cannot be a relationship between equals … There is potential for exploitation and harm of vulnerable young people and staff have a responsibility to ensure that an unequal balance of power is not used for personal advantage or gratification. … Staff should not establish or seek to establish social contact with students for the purpose of securing a friendship or to pursue or strengthen a relationship.” PXM was required to sign a form headed “Staff Declaration” which confirmed that he had read the guidance and understood his responsibility for child protection at the school. The declaration he signed was that for all employed staff. CD also referred PXM to the “Staff Code of Conduct” which stated that it applied to all adults working or volunteering for the school whatever their position, role or responsibilities [79] – [86].
The Judge accepted CD's evidence and found that (i) The defendant's expectations of PXM were that he would provide some limited help with lessons by running warm ups, coaching groups of students under guidance, assisting with sorting out equipment, washing bibs and the “general day to day PE stuff”. PXM was expected to attend the school from 8:15am until 2:40pm when the school day ended. After school clubs might run until 3:45pm. PXM's attendance at clubs was not compulsory but there was a strong expectation that he would attend [87] – [88]. (ii) PXM would have been introduced to the pupils at the start of the classes in which the claimant was present in terms of “[t]his is Mr PXM who is on a WEP and should be treated as any member of staff should be. He is here to support in lessons” [89]. (iii) The class teacher would have talked through with PXM what they wanted him to do by way of assistance on a lesson by lesson basis. The lesson would be delivered by the teacher and not by PXM. PXM would always be supervised in the assistance he was providing to the class teacher [90] – [91].
As to the interaction between PXM and the claimant, the Judge found (i) There were two occasions when the claimant had some interaction with PXM, the first was when he suggested to her that she attend the after school badminton club, the second was the club session itself [93] – [94]. (ii) PXM did not undertake any of his WEP in any of the claimant's PE lessons because the claimant was in the high band set and PXM taught the low band set. PXM and the claimant had some conversation which led to the claimant attending the badminton club. This occurred at lunch time on 26 or 28 February despite the school policy that PXM should be with PE staff at all times. Nothing untoward occurred, it was a brief meeting [107] – [109].
At [110] and following the Judge made the following findings:
“110. I find that this was not grooming behaviour. I am not satisfied there is evidence from which it could reasonably be inferred that PXM had any ulterior motive during this first interaction with the Claimant.
111. The Claimant does not persuade me there was any further interaction between them before the badminton club session. … It cannot reasonably be inferred that PXM had any ulterior motive towards the Claimant during this brief meeting.
112. I am satisfied that the badminton club took place on Friday 28 February after school. It was supervised by a teacher whom the Claimant believes was GH. …
113. I am satisfied that PXM attended the club as part of his WEP because there was an expectation on the part of the Defendant he would do so, because he was keen to maximise the experience he would gain from the WEP and probably also to make a good impression. It is likely that he was already planning to attend the club before he...
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