Following the breakdown of his parent’s relationship the claimant, aged nine, was placed by the local authority in voluntary care with his maternal aunt and uncle who subsequently applied successfully to become the claimant’s foster parents. The claimant remained with the family until his late teens. He later issued a claim for damages for personal injury against the local authority for alleged sexual abuse suffered as a result of the acts of the claimant’s uncle, for which it was claimed that the local authority was vicariously liable. Considering the issue of vicarious liability as a preliminary issue, the recorder found on the evidence that the aunt and uncle’s activity in fostering the claimant had the characteristics of a family bringing up a relative, rather than a task undertaken on the local authority’s behalf, and that the relationship between the local authority and the relatives was not a “stranger, commercially based, fostering placement” based on direction and compliance but was instead unusually consultative and based on a “mutual exchange of views”. Striking out the claim, the recorder concluded that the relationship was, on balance, not akin to one of an employer and employee and, consequently, the local authority was not vicariously liable for the alleged tortious abuse of the claimant by his uncle. The claimant appealed that decision on the grounds, inter alia, that the question of the local authority’s vicarious liability could be answered by reference to the relationship between the claimant and the foster family and that, as he was not their child and they did not treat him as such, the recorder had been wrong to conclude that vicarious liability did not attach to the authority for his uncle’s tortious conduct.
On the claimant’s appeal—
Held, appeal dismissed. For the purposes of understanding whether vicarious liability would or would not be imposed on a local authority, the category of relationship between the foster parents and the cared-for child was not determinative in itself. The question was whether there was a sufficiently sharp line between the activity of the foster carers and the local authority such that vicarious liability was not justified. Thus, while there might be very little room for doubt in the case of “ordinary” foster parents, and there might be a large measure of doubt in the case of foster parents who were parents, liability fell to be determined by analysing the details of the relationship to see whether, on balance, the relationship was one akin to employment. In the present case, none of the recorder’s findings undermined his conclusion that the foster parents were engaged in an activity which was more aligned to that of parents raising their own child and that the activity was sufficiently distinct from that of the local authority exercising its statutory duty. It followed that the local authority was not vicariously liable for the alleged sexual abuse perpetrated by the claimant’s uncle (paras 30–31, 43–45).
Justin Levinson (instructed by Jordans Solicitors, Wakefield) for the claimant.
Steven Ford KC (instructed by Browne Jacobson LLP) for the local authority.