*Disclaimer: This article contains details about sexual assault/abuse which may be upsetting for some readers. Reader discretion is advised.

In MXX v A Secondary School [2023] EWCA Civ 996, the UK Court of Appeal affirmed that a secondary school was not vicariously liable for tortious acts of an 18-year-old man on work experience. 

The respondent was a secondary school for children aged 11 to 16. In December 2013 the appellant, MXX, was a 13 year-old student at the school.

Between 24 and 28 February 2014, PXM completed a work experience placement at the secondary school of which he formerly attended as a student. At the time, PXM was aged 18 and was completing a college course to train and eventually qualify as a physical education teacher. During the work experience placement, PXM met MXX (although he did not teach her in any classes). PXM invited the appellant to an afterschool badminton club which was organised on school grounds on 28 February 2014, the final day of PXM's work experience placement. 

In early March 2014, approximately a week after the badminton club, PXM and the appellant befriended one another on Facebook and started communicating. These exchanges continued until September 2014. PXM sent the appellant indecent images of himself on 4 July 2014. Other messages exchanged between March 2014 and July 2014 were deleted by both the appellant and PXM, at PXM's instigation. 

In August 2014, PXM sexually abused the appellant in a park. In September 2014, PXM was arrested for various counts of sexual assault. 

On 2 November 2015, PXM pleaded guilty to sexual activity with a child and two counts of causing a child to watch a sexual act by looking at an image of a person engaging in sexual activity.

In 2020, the appellant commenced a civil claim in the High Court against the respondent, claiming £27,500 in damages for psychiatric injury arising out of the sexual assaults. 

The appellant did not allege any negligence directly on the part of the respondent, but submitted that it was vicariously liable for PXM's sexual abuse. At trial, HHJ Wall found that the respondent was not vicariously liable for the sexual abuse. 

The High Court concluded that the relationship was not “akin to employment” because:

1. The torts were not committed during the course of an activity which was being undertaken by PXM for the respondent; 

2. the tort itself was committed well after the work experience placement ceased; 

3. the sexual grooming and assaults had no connection with the respondent's activity and function as a secondary school; 

4. PXM’s activity within the secondary school was not in any real sense part of the respondent's business activity;

5. PXM was undertaking the work experience to learn from the respondent's staff who were supporting him in pursuit of his hopes to qualify as a physical education teacher; 

6. the limited tasks performed by PXM during the work experience placement were minor and ancillary to the respondent's undertaking; 

7. the respondent did not create the risk of PXM committing the torts.

HHJ Wall's findings of fact were that:

1. PXM did not groom MXX while he was on the work experience placement;

2. PXM did not develop an ulterior motive towards MXX until weeks after the work experience placement had ended;

3. PXM committed the tort of intentional infliction of harm against MXX, but not while he was on the work experience placement;

4. PXM was not employed by the school and was not in a relationship akin to employment; 

5. the abuse of MXX was not sufficiently closely connected to PXM's role at the school.

HHJ Wall applied the two stage test for the imposition of vicarious liability, and held that the first stage of the test was not established. For completeness, HHJ Wall provided consideration about how the second stage was not fulfilled. 

At the crux of HHJ Wall's reasoning was that the wrongdoing occurred weeks after the work experience placement ceased, and that the use of Facebook, and the subsequent sexual relationship was unrelated to the respondent's school activities.

The appellant appealed on four grounds. 

The first two grounds of appeal challenged HHJ Wall's factual determinations. The appellant submitted that HHJ Wall had made material errors of fact, and had failed to consider one particular Facebook message where PXM and MXX discussed their first meeting at the school which was sent during the work experience placement. The appellant further submitted that this amounted to grooming and demonstrated that both the mental and conduct elements of the tort of intentional infliction of harm was present at the time of the work experience placement.

Additionally, the appellant submitting that PXM had performed duties akin to a teaching assistant during physical education classes and the subsequent abuse of MXX was a continuous chain of events commencing with his grooming of MXX during the work experience placement and concluding with his abuse of MXX.

The appeal was heard before a three-judge bench in the Court of Appeal. The leading judgment was delivered by Davies LJ on 25 August 2023 and was unanimously agreed. 

Grounds 1, 2, and 3 

Davies LJ found for the appellant in respect of grounds 1, 2 and 3.

Davies LJ found that HHJ Wall had failed to consider relevant evidence that went to the core of the appellant's. Specifically, HHJ Wall had failed to set out in her judgment in full an exchange between PXM and MXX on Facebook about their meeting at school, in which PXM stated that after meeting MXX, he had tried to find her class in order to teach her. Davies LJ stated that this went to PXM's state of mind whilst on the work experience placement and ought to have been properly considered and weighed in the judgment. 

Davies LJ also considered that there was other evidence that was not given due regard by HHJ Wall, including the fact that within one week of the work experience placement, PXM and MXX were connected on Facebook.

Ground 4 

With respect to ground 4 of the appeal, the appellant submitted that HHJ Wall was wrong to find that PXM’s torts were not sufficiently closely connected with his relationship with the defendant so as to give rise to vicarious liability.

Davies LJ highlighted that in Various Claimants v Wm Morrison Supermarkets plc [2020] UKSC 12, Lord Reed emphasised that the close connection test was not merely a question of timing or causation but of the application of orthodox common law reasoning, stating that the “close connection” test is concerned with “whether the wrongful conduct was so closely connected with the acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment or quasi-employment". 

Davies LJ reasoned that satisfying “but for” causation was insufficient, and that a close connection is required. 

The respondent submitted that PXM’s role at the school did not give rise to a close connection. In other cases it was the abuser’s pastoral role and the misuse of that role which constituted grooming. 

Davies LJ acknowledged that grooming commenced when PXM was at the school, and that PXM was in a relationship with the respondent that was akin to employment, yet his role was extremely limited. He had no caring or pastoral responsibilities in relation to the appellant and he was not placed in a position of authority over pupils of the secondary school. PXM’s access to the appellant at school was limited as he was, or should have been, kept under close supervision at all times. Even allowing for the fact that PXM was to be addressed as if he was a member of staff, he held no position of authority over the pupils in the school. It was not until PXM left the school that any communication took place on Facebook and such communication was specifically prohibited by the school. 

Given the limited nature of PXM’s role during the course of one week, the facts do not satisfy the requirements of the close connection test. The grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant’s school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM. 

The Court of Appeal therefore found that the defendant was not vicariously liable for the torts of PXM.

In Australia, the test for vicarious liability was recently reinforced in DP v Bird [2024] HCA 41. In that case, the High Court was required to consider whether pastoral roles were relationships akin to employment. The decision looked at a wider view of vicarious liability, and found that despite the alleged perpetrator having occasion and/or opportunity to commit the abuse, as well as a role of authority, power, trust and control, the court will consider whether a true employment relationship exists between the perpetrator and the institution. 

The United Kingdom Court of Appeal adopted a slightly different approach and considered whether PXM's conduct was "inextricably woven" to the nature of his employment with reference to PXM's role within the school as a work experience student. 

The findings of each of the above cases demonstrates that a finding of vicarious liability will depend on the facts of each case. Emphasis will be placed on whether an institution placed a perpetrator in a position of authority in their employment which was a necessary condition in respect of the abuse being occasioned. 

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