XVW & YZA v X School for Girls & Adventure Lifesigns Ltd  EWHC 575 (QB)
This action was brought by two Claimants and arose out of a school trip/expedition to Belize in July/August 2005. The Claimants were pupils at the D1 school; they were aged 16 years and 15 years respectively. D2, a UK company, assisted with the planning of the expedition, as well as providing two ex-military adult staff to accompany the same. The expedition was a developmental training experience for the participants; it was not a holiday. The young women who participated were actively involved in the choice, selection, planning and budgeting for the index expedition. A teacher from D1 also accompanied the expedition. During the course of the expedition it was necessary for the planned itinerary to be altered as a result of a hurricane which affected the area (Mexico) to which the group intended to travel. The young women participating in the expedition were actively involved in the change of plan and the arrangements for alternative accommodation. A local Belizean company provided accommodation to members of the expedition party in return for work undertaken by the participants and an agreement to undertake trips with the Belizean company to be paid for by the participants from funds held by them. A local man (A) was the son of the owner of the Belizean accommodation and might have been co-owner of the resort where the group stayed. During the early hours of the morning of 1 August 2005 A raped the Claimants and another of the young women on the expedition who was staying in the same cabana accommodation at the resort. The Claimants alleged that they had sustained psychiatric injury as a result of the sexual assaults. They brought proceedings against the Defendants in respect of the alleged intentional wrongdoing of A. The Claimants’ case was that D1 and/or D2 were vicariously liable for the conduct of A. Alternatively, it was submitted on their behalf that the scope of D1 and/or D2’s duty of care extended to the intervening criminal conduct of A (which was, the Claimants alleged, foreseeable) and that there had been a number of causally relevant breaches of duty by D1 and D2 with respect to the planning of the expedition, the supervision of the expedition, the vetting of A and the security of the Claimants. The Claimants relied on a number of alleged incidents of inappropriate behaviour by A prior to the assaults (although it was denied that these incidents had come to the notice of D1 or D2’s staff).
The trial took place before Mackay J on 27 – 29 February and 1 March 2012. The Claimants’ claims were dismissed and it was held: (1) A was not an employee of D1 or D2 and his involvement, such as it was, in the expedition was sufficiently limited that it was not just and fair to describe him as a person for whose actions D1 or D2 were vicariously liable (Lister v Hesley Hall Limited  1 AC 215 (HL(E), JGE v The English Province of Our Lady of Charity & Anor.  EWHC 2871 (QB) and EL v The Children’s Society  EWHC 365 (QB) considered, among other cases; (2) The scope of the duty of care was to be determined by application of the Caparo test: was it fair, just and reasonable for the duty to extend as far as the Claimants contended; (3) There was no causative breach of duty in this case. It was not alleged that A had a criminal record which went undiscovered or that Belize had a UK-style system of CRB checks. The local police would, if they had been consulted in advance, probably have given A a good character reference. The school party was continuously supervised by 3 experienced adults and, short of placing a guard outside each cabana occupied by the school party at the resort, there was no means by which to defeat A’s assault (he had been careful to keep his conduct towards the young women, prior to the assaults, hidden from the adult staff).
This case is the latest in a number of recent decisions in which vicarious liability is discussed in respect of persons who are not employees (or even deemed or temporary employees) of the Defendant. These cases are discussed in the most recent (March 2012) edition of the Chambers Personal Injury Briefing and in Lisa Dobie's post below.