On 30 January 2008 the House of Lords gave judgment in six cases on issues of limitation and negligence. The ramifications of the decision for those working in education are far reaching, as Dai Durbridge explains.
What are the facts of the case?
The judgment is referred to as A v Hoare. It contains the decision in six cases, four of which were to do with allegations of historic child abuse allegedly perpetrated by employees of local authorities, including teachers. Browne Jacobson acted for the Defendants in three of those cases − H v Suffolk County Council, and X and Y v London Borough of Wandsworth. In each case, the claimants made allegations of serious sexual abuse against employees of the defendant.
What did the House of Lords decide?
The decision impacted upon the law of limitation and negligence. Before this decision, adult claimants who alleged that as children they were abused by a member of staff while in care needed to prove not only that the abuse took place, but also that the local authority had been negligent in allowing it to happen. Those allegations of negligence regularly included, amongst other things, a failure to supervise that member of staff, a failure to adequately assess their suitability before employing them and/or inadequate reporting procedures. Under the old law, if the local authority could show that it was not negligent, the claim would fail.
That has now changed. All a claimant need do is prove the assault/abuse took place and the local authority will be liable.
Why does the decision apply to schools as well as those in children’s services?
The principle behind the decision is a wide one: Where those who are professionally responsible for the safety and wellbeing of children abuse a child in their care, that child is entitled to claim against the employer without having to prove negligence. In the case of a school, where a person alleges that they were assaulted or abused by a teacher as a child that person can bring a claim against the school and will succeed simply by proving the abuse took place.
What does this mean for schools?
The major downside to this decision is that regardless of how strong a school’s recruitment policy may be, how regular the monitoring of staff or how good their training, if an assault or abuse is proved to have taken place, the school will be liable for it as well as the teacher.
This should not discourage schools from ensuring they are adequately discharging their duties in this area. After all, the paramount importance for all professionals in education is safeguarding and promoting the welfare of children. While doing so may not protect a school from a claim, it will significantly lessen a child’s risk of suffering abuse.
You mentioned the decision also changed the law on limitation. Is it now harder for late claims against schools to succeed?
In short, yes. Where a claimant brings their claim after they are 21, they will have to persuade the court to allow them to continue with their claim. When considering this request, the court will look at how the delay has impacted upon the school and whether it has made it harder for the school to defend or made the possibility of a fair trial less likely. While this is not a change in the law, the House of Lords gave useful guidance on how these matters should be considered. It is clear from the decision that the court is less likely to allow late claims to continue, particularly if the abuse has never been proved in disciplinary or criminal proceedings. This is a very slight silver lining to the decision from a school’s perspective.
So will this lead to a substantial increase in claims?
It is unlikely. Claimants were never discouraged from bringing their claims simply because they had to prove negligence. As one would expect, in the vast majority of cases where abuse was proved to have taken place, the defendant was also found negligent for allowing it to do so.
Do schools need to review their policies and procedures?
It is unlikely that this decision will cause schools to reconsider their policies on recruitment or monitoring, or even in relation to punishment or restraint of pupils. This judgment covers situations where those working with children chose to assault them. Unfortunately, no amount of policy or training will prevent this.
What may be relevant is a school’s complaints procedure. Lord Brown made it clear in the judgment that a contemporaneous complaint of an assault adds weight to a claimant’s claim. Ensuring complaints procedures are accessible and well known to the pupils will go some way to ensuring they feel able to raise matters of concern if they arise. A lack of complaint at the time will support the school if a later claim is made for an alleged assault.
This e-bulletin issue was first published in April 2008
About the author: Dai Durbridge is the author of this week’s Legal Expertise. Dai is a solicitor with the firm at its Nottingham office. He joined in 1999 and is ‘home-grown’ talent having joined the trainee programme in 2001, qualifying in 2003. Dai specialises in social services, education and the care sector and his experience includes handling a variety of high profile claims.