Vicarious Liability and Non‐Delegable Duty for Child Abuse in Foster Care: A Step Too Far?

Publication Date01 September 2016
Date01 September 2016
AuthorStelios Tofaris
Child Abuse in Foster Care
images were disseminated only to local news outlets for identification purposes,
thus limiting the intrusion into the applicant’s private life to a minimal degree.77
Whilst it is not reasonable to expect that one can keep private one’s participation
in a public riot, the measures taken to identify the applicant in JR38 evidently
could set back his autonomy and privacy related interests in a number of ways.
Taking into account the fact that the applicant was a child at the time of the
incident, and he most likely could not have foreseen the subsequent publication
of his image and the lasting consequences that this might have on his ability
to manage his public reputation and lead an autonomous life, it seems proper
that such measures should only be taken where there exist sufficient reasons to
do so. The question whether such reasons exist falls to a consideration of the
criteria set for th in Article 8(2) of the ECHR. The approach taken by the JR38
majority runs the r isk of unduly restricting the scope of Article 8 to exclude
situations where an individual’s privacy related interests are significantly set
back as part of a criminal process. It is surpr ising that the Supreme Court has
created a situation whereby the state is free to disseminate images of suspects in
such situations without demonstrating a legitimate aim for the dissemination,
and that such measures are necessary in pursuit of this aim.
Vicarious Liability and Non-Delegable Duty for Child
Abuse in Foster Care: A Step Too Far?
Stelios Tofaris
In NA vNottinghamshire County Council the Court of Appeal held that a local authority is not
liable under vicarious liability or for breach of a non-delegable duty when foster parents sexually
or physically abuse a child that it has placed in their care. The note discusses the decision in
the light of recent developments in the law. It is argued that the result is unsatisfactor y in terms
of doctrine and policy. It is further suggested that non-delegable duty, rather than vicarious
liability, offers the most appropriate route for establishing liability.
Child abuse has long been a widespread evil. The scale of the abuse is gradually
coming to light in public inquiries,1but also in personal injury claims brought
77 On this point, the measures of dissemination in this case can be distinguished from the case of
Peck vUnited Kingdom, where the applicant’s image was disseminated to national news outlets
for the purposes of advertising the utility of CCTV surveillance. See n 52 above at [79].
Fixed-Term University Lecturer in Private Law,University of Cambridge; Fellow of Girton College.
I am grateful to Nicholas McBride, Sandy Steel and the anonymous referee for their comments. The
usual caveat applies.
1 Several inquiries into institutional child abuse are currently under way across the UK. See, for
example, Independent Inquiry into Child Sexual Abuse (England and Wales); Historical Child
884 C2016 The Author.The Moder n LawReview C2016The Modern Law Review Limited.
(2016) 79(5) MLR 871–900
Stelios Tofaris
by victims. A common feature of most claims is that they are pursued against
persons other than the perpetrators of the abuse, a ‘notoriously unreliable
source of funds’.2Victims of child abuse no doubt deserve to have an effective
remedy, yet liability can only be imposed on those who ought fairly to bear
it.3The claims therefore raise a fundamental issue of tort law: when and why
legal responsibility should be ascribed to one person for the torts of another.
There are three possible routes: (i) the tort of negligence, (ii) vicarious liability,
and (iii) breach of non-delegable duty. Under the first, liability is imposed for
the defendant’s own wrongful act. This is based on fault, which has long been
associated with moral responsibility.4Claims of direct negligence, however, are
difficult to prove for child abuse taking place many years before and in light of
the Bolam test.5Thus, attention is often directed to the other two doctrines,
both of which are exceptional. Vicarious liability imposes secondary liability,
without the defendant committing a wrong.6A non-delegable duty imposes
primary liability, although the defendant is not at fault.7Questions arise about
the justification of these doctrines when applied in new contexts.
NA vNottinghamshire County Council8(NA) grapples with these issues in the
context of child abuse in foster care. The question arising was whether a local
authority was liable in tort where foster parents sexually or physically abused a
child that the local authority had placed in their care without negligence on its
part. The Court of Appeal answered this in the negative, finding that neither
vicarious liability, nor non-delegable duty applied. The decision is unlikely to
be the final word in this area.9The case note seeks to explain why it should not
be. It considers both the court’s reasoning, and how a more satisfactory result
can be achieved in terms of doctrine and policy. This entails an explanation
of the existing relationship between vicarious liability and non-delegable duty,
and which of the two offers the best route for resolving the issue at hand.10
Abuse Inquiry (Scotland); Historical Institutional Abuse Inquiry (Norther n Ireland). Of these
only the last excludes abuse in foster care from its investigation.
2 M. Chamallas, ‘Vicarious Liability in Torts: The Sex Exception’ (2013) 48 Valparaiso University
Law Review 133, 136. Perpetrators seldom have adequate financial resources to satisfy an award
of damages, and even if they have insurance, this does not cover their intentional criminal acts.
See P. Case, Compensating Child Abuse in England and Wales (Cambridge: CUP, 2007) 128.
3McDonnell vCongregation of Christian Brothers Trustees [2001] EWCA 2019; [2002] CP Rep 31
at [53] per War d LJ .
4 D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: OUP, 1999) chs 8 and 9.
5Bolam vFriern Hospital Management Committee [1957] 1 WLR 582; Bolitho vCity and Hackney
Health Authority [1998] AC 232. Many of the decisions that social workers make in their
professional capacity are difficult, consequently satisfying the Bolam test is no easy matter. See
Phelps vHillingdon London Borough Council [2001] 2 AC 619, 672 per Lord Clyde (Phelps).
6Majrowski vGuy’s and St Thomas’ NHS Hospital Trust [2007] 1 AC 224 at [8] per Lord Nicholls.
7Woodland vSwimming Teac hers Association [2013] UKSC 66; [2014] AC 537 at [6] per Lord
9 E. Gumbel, ‘Developments in Vicarious Liability: A Practitioner’s Perspective’ (2015) 31
Professional Negligence 218, 234.
10 The paper does not engage in a normative analysis of the relationship between vicarious liability
and non-delegable duty, or their policy justifications. Instead, it explores whether the present
understanding of these in the case law warrants the imposition of liability on the local authority
for child abuse by foster parents and, if so, the basis for that liability.
C2016 The Author.The Moder n LawReview C2016The Modern Law Review Limited.
(2016) 79(5) MLR 871–900 885

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