A v Iorworth Hoare

The decision of the House of Lords in Stubbings v Webb should no longer be followed because it was wrong and/or because the Law Commission has demonstrated that the approach should be different.

The decision should no longer be followed because section 11(1) of the 1980 Act should now be construed differently in the light of section 3 of the Human Rights Act 1998 (“the HRA”).

The decision does not apply to a claim against a public authority.

If necessary, the court should grant a declaration of incompatibility between the 1980 Act and the Convention.

Stubbings v Webb can be distinguished on the facts in those cases where the claimant can also rely on a breach or breaches of a duty of care that does not arise solely in connection with the deliberate act or acts of trespass to the person and/or is different from the simplistic duty of care to avoid causing personal injury which was at the centre of the discussion in that case.

under CPR 16PD.13 limitation must be pleaded;

the action is not treated as time barred until such a plea is made: Kenneth v Brown [1988] 1 WLR 582;

no defence has yet been served and the application to strike out is premature: Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398;

by contrast with the limitation provision in section 2 of the 1980 Act, where the Act provides for the automatic extinction of the claimant’s right it does so expressly, as in section 17; and

the time to decide which section of the 1980 Act applies is when action is brought and not when the cause of action accrues: Gulf Shipping Lines Ltd v Jadranska Slobodna Plovidba [1981] 1 Lloyd’s Rep 31.

As we have already seen, the problems created by Stubbings v Webb surfaced again in KR v Bryn Alyn Community (Holdings) Ltd & Anr [2003] EWCA Civ 85; [2003] QB 1441 (for which see para 33 above). The claimants’ claims were really concerned with long term post traumatic psychiatric injury: see para 27 of the judgment of Auld LJ. The judge found that most of them were entitled to recover damages because of systemic negligence on the part of other employees of the defendant which had failed to protect them from being abused by Mr Allen. Because they limited their claim in this way, this court was able to decide some of the limitation issues in the case on the basis that the “injury in question” for the purposes of section 11(1) of the 1980 Act was psychiatric injury and that the claimants did not know that this injury was significant and that it was attributable in whole or in part to the abuse they had suffered until dates much later than those identified by the judge.

The judge for his part had applied Lord Griffiths’ obiter dictum in Stubbings v Webb (see para 23 above) and fixed the date of knowledge as the date(s) when the young person in question knew that he/she had been assaulted on a regular basis or that he/she had been buggered, masturbated or fondled in an inappropriate way. Auld LJ dealt with this side of the case at paras 16 to 58 of the judgment of the court.

What the court described as “the Lister point” in KR v Bryn Alyn arose in the following way. Three of the claimants relied only on “deliberate acts of abuse by certain Bryn Alyn employees”. It appears from para 98 of the judgment of the Court of Appeal that the judge held that one of these claims was statute barred “since the conduct of John Allen of which she complained was deliberate” and because there was no negligence by any other member of the staff arising out of their failure to prevent it. Two of the other claims were held to be statute barred in part for the same reason.

This court upheld the judge’s approach, except in relation to one claim which had in fact been brought before the relevant six year period expired. The route by which it reached this conclusion ran along these lines:

Auld LJ summarised the court’s conclusions in these terms (at para 108):

“In our view, the correct approach is as Lord Millett has expressed it. Whether or not section 11 is in play, it is to identify the wrongful act, deliberate or otherwise, in respect of which vicarious responsibility is claimed and to assess the closeness of its connection to the employment in question. If the act is sufficiently closely connected with the employment, there is vicarious responsibility. In such circumstances, and bearing in mind Lord Griffiths's reasoning in Stubbings v Webb, … there is no justification or need, for the purpose of establishing vicarious responsibility, to elide the duty in respect of which the employee's deliberate act is a breach with a duty of care delegated or ‘entrusted’ to him by the employer. The two are quite distinct.

Where section 11 is under consideration, it follows that claims for personal injuries in respect of deliberate conduct, whether considered in the context of vicarious responsibility or not, are not caught by its provisions. Accordingly, in the absence of some provable allegation of systemic negligence of the first defendant, we are of the view that its employees' deliberate abuse does not fall within section 11 and is, therefore, governed by a non-extendable six years' period of limitation rather than an extendable three years' period. We would accordingly uphold the judge's finding and ruling to that effect…”

In C v Middlesbrough County Council [2004] EWCA Civ 1746 this court, as we have seen (see para 36 above), considered that it was bound by this part of the decision in KR v Bryn Alyn. That case had marked similarities to the cases with which we are concerned. A teacher at the claimant’s school had a flat in the school premises to which he invited his favourites, contrary to the school rules. He groomed them by giving them cigarettes and other presents and otherwise performing acts of favouritism towards them. He then performed acts of sexual abuse.

The judge found that the school’s head teacher had not been negligent in relation to these matters, and an appeal against that finding was dismissed. What was left was the contention that the council was vicariously liable for the teacher’s actions. Latham LJ, with whom the other members of the court agreed, summarised the effect of the case law leading up to the decision in KR v Bryn Alyn and then said (at para 31):

“[Counsel for the appellant] tried valiantly to escape from what seems to me to be the inevitable consequence of this decision. She submitted that the court had not fully considered the nature of the duty which Lord Hobhouse had suggested as the basis for liability. But I confess I found it impossible to see in her argument anything which could enable us to distinguish the Bryn Alyn case or hold that this court's decision was for some other reason not binding on us. In my view the judge was correct in the conclusion that he reached.”

Argument (v): The duties of teachers and the developing law: (d) Vicarious liability for unauthorised acts: other recent cases

Questions about the principle that underlies the attachment of vicarious liability for unauthorised acts resurfaced from time to time after the decision in Lister. In Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366 the House of Lords extended the scope of the principle to duties arising in equity. In this case Lord Nicholls explained why that policy dictated that liability for agents should not be strictly confined to acts done with the employer’s authority, and then went on to say (at paras 23-24):

“23.

If, then, authority is not the touchstone, what is? Lord Denning MR once said that on this question the cases are baffling: see Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 724. Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment. Lord Millett said as much in Lister v Hesley Hall Ltd [2002] 1 AC 215, 245. So did Lord Steyn, at pp 223-224 and 230. McLachlin J said, in Bazley v Curry (1999) 174 DLR (4th) 45, 62:

'the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization).' (Emphasis added)

To the same effect is Professor Atiyah's monograph Vicarious Liability in the Law of Torts, (1967) p 171:

'The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carried on'. (Emphasis added)

24.

In these formulations the phrases 'may fairly and properly be regarded', 'can be said', and 'can fairly be regarded' betoken a value judgment by the court. The conclusion is a conclusion of law, based on primary facts, rather than a simple question of fact.

25.

This 'close connection' test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged…

26.

This lack of precision is inevitable, given the infinite range of circumstances where the issue arises. The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable.”

Lord Slynn, Lord Hutton and Lord Hobhouse agreed with Lord Nicholls’s speech. Lord Millett, for his part, added this (at para 129):

“129.

An employer has been held to be vicariously liable for the intentional wrongdoing of his employee in a wide variety of different circumstances. In some of the cases the employer has undertaken a duty towards the plaintiff and then delegated the performance of that duty to his employee: see Morris v C W Martin & Sons Ltd [1966] 1 QB 716; Photo Production Ltd v Securicor Transport Ltd [1980] AC 827; Lister v Hesley Hall Ltd [2002] 1 AC 21. … But the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. All depends on the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing.”

In Bernard v Attorney-General of Jamaica [2004] UKPC 47 Lord Steyn said (at paras 18 to 19):

“18 In Lister a warden of a school boarding house had sexually abused resident children. The question was whether the employers were vicariously liable. In the leading opinion a single ultimate question was posed, namely [at 230C]:

"... whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable."

The four substantial opinions delivered in Lister revealed that all the Law Lords agreed that this was the right question. On the facts the members of the House unanimously took the view that the answer was ‘yes’ because the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in the boarding house. … Lister is … important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor's employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment. It was held that the traditional test of posing, in accordance with Salmond's well-known formula, the question whether the act is "a wrongful and unauthorised mode of doing some act authorised by the master" is not entirely apt in cases of intentional wrongs: Salmond, The Law of Torts, 1907, 83, now contained in the current edition of Salmond and Heuston, The Law of Torts, 21^st edn, 1996, 443. …

The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable. In deciding this question a relevant factor is the risks to others created by an employer who entrusts duties, tasks and functions to an employee. This strand in the reasoning in Lister was perhaps best expressed by Lord Millett who observed (para 83, at 250D):

"... Experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust."

…

A year later in Dubai Aluminium Company Limited v Salaam and Others [2003] 2 AC 366 the House of Lords applied the principles in Lister in a very different context. The issue was whether a solicitors' firm was vicariously liable for the fraudulent acts of one of its partners who, together with others, had defrauded the Dubai Aluminium Company. If the firm, which had paid compensation to the company, was vicariously liable, it could properly claim contribution from the other participants in the fraud. The House found vicarious liability established. All the opinions are closely reasoned and important but it is not necessary to review the case generally. A citation from the leading opinion of Lord Nicholls of Birkenhead, reveals the link with Lister. Lord Nicholls stated (para 23, at 377E):

"... Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment."

19 Throughout the judgments there is an emphasis on the proposition that an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business he carried on”.

Argument (v): Can Stubbings v Webb be distinguished by reliance on a concurrent breach of duty?

The law has clearly moved on a long way since Stubbings v Webb was decided. Limitation issues were not even discussed in Lister v Hesley Hall, and we no longer think only of a duty of care to avoid personal injury when we consider what duties exist in the context of a teacher-pupil relationship. On the face of it, principle and justice seem to require that when a teacher, in flagrant breach of the duty he owes a pupil in his charge, grooms him and encourages him to perform indecent acts in front of him or watch pornographic videos with him, and performs indecent assaults on him, and follows a prolonged policy of favouring him and protecting him from justified complaints by other teachers, so that the child truants in the short term and suffers serious psychiatric harm in the long term, in addition to losing the benefit of a normal education, the law should not provide a more relaxed limitation regime for the less serious breaches of duty and a more stringent regime for the more serious breaches.

Unconstrained by authority, we would be inclined to follow what appears to be the approach of the majority in Lister v Hesley Hall (see para 99 above) and hold that such a claimant could recover damages for breach of duty in respect of the cumulative effect of all these activities, so that recovery is not confined to those improper activities that do not constitute intentional assaults. But in our judgment we are not free to take this course. In KR v Bryn Alyn this court expressly preferred the approach of Lord Millett in the Lister case as to the non-viability of an alternative claim based on breach of duty. And if it were to be suggested that in Bryn Alyn the facts complained of may have been limited to intentional assaults, in C v Middlesbrough Borough Council the facts were similar to those with which we are at present concerned, and this court nevertheless held that it was bound by the decision in Bryn Alyn not to apply the more relaxed limitation regime that is available in “breach of duty” cases. We considered whether we were able to depart from this part of the judgment in Bryn Alyn, but even if we were free to do so we think that it would be very much better to leave it to the House of Lords to consider this area of the law as a whole, rather than for different divisions of the Court of Appeal to provide different answers in relation to what is, after all, only one part of a larger scene.

Again, if we were free from binding authority, we would have to consider quite carefully the reasoning of Lord Hobhouse in Lister (see para 101 above) to the effect that it is legitimate to include a failure to report among such a teacher’s breaches of duty. It would follow from this reasoning that if the boys’ head of year is under a duty to report to the headteacher that another master was about to involve himself in acts of indecency with a boy, a fortiori in that capacity he was under such a duty if he was about to behave in this way himself. This, of course, is an artificial approach, and its artificiality stems from the way in which as the law now stands we have to segregate those acts of indecency that amount to intentional assaults from acts of indecency that do not involve touching (as when an abuser persuades a boy to strip off his clothes and masturbate in front of him) but are nevertheless probably causative of harm. However, in Bryn Alyn Auld LJ preferred Lord Millett’s approach to this issue in Lister as part of the court’s reasons for denying vicarious liability in this respect, and we are bound by that decision.

The application of the law to the three appeals: (i) A v Hoare

We will now apply the law to the facts of the three appeals. A more detailed description of the facts is to be found in the Appendix.

In A the appellant was subjected to an attempted rape by a serial sexual offender. He was sentenced to life imprisonment. There would have been no point in A suing him before the primary limitation period expired in February 1994 because he had no money. Ten years later, however, he won £7 million on the national lottery, and A issued proceedings against him in December 2004.

If Parliament enacted the Law Commission’s proposals, the court would have a discretion to override the primary limitation period. How it would exercise its discretion would of course depend upon all the circumstances of the case and we express no view upon how it would be exercised on the facts of this case. Like the judge, we were not asked to do so. As it is, we are bound by the decision in Stubbings v Webb to hold that the claim is statute barred, and for the reasons we have set out in paras 42 to 65 above the HRA cannot come to A’s assistance because the defendant possessed an accrued right to a limitation defence long before the HRA became law. For these reasons we must dismiss A’s appeal.

The application of the law to the three appeals: (ii) H v Suffolk County Council

In H the judge found that H had been indecently assaulted by one of his teachers in 1990. The circumstances are fully explained in Part B of the Appendix below. The primary limitation period expired in February 1999. The claimant never disclosed to anyone what had happened to him until shortly after the claim had become statute barred, and these proceedings were commenced in April 2002.

At the outset of the trial, the judge struck out his direct claim against the teacher, and there is no appeal against that decision. At the end of the trial he dismissed the action against Suffolk County Council (“the Council”) as the school authority on the ground that it had neither been negligent in recruiting that teacher nor in the way the teacher’s conduct towards the boys was monitored or supervised. Ground one of H’s appeal challenges the second of those conclusions. A consideration of this ground involves a comparatively detailed analysis of the facts which is contained in paragraphs 162 to 186 below. For the reasons there given, we have reached the conclusion that there is no basis upon which we could properly say that the judge was wrong in reaching the conclusions he did. We therefore dismiss the appeal on this ground.

Permission to appeal was granted by Brooke LJ on two grounds. The first was that to which we have just referred and the second was that section 2 of the 1980 Act should not be applied to a case of this kind because of article 6 of the Convention. This ground fails for the reasons set out in paras 39 to 68 above.

In addition to grounds one and two, at the hearing of the appeal Mr Cooksley sought to distinguish Stubbings v Webb on the basis that it only applied to the individual tortfeasors and not to a local authority. He also associated himself with the various other bases for saying that Stubbings v Webb should not be followed. However, the only ground upon which a formal application for permission to amend the appellant’s notice and for permission to appeal was made was that the judge was wrong to strike out the claims in negligence and that (as it is put in the proposed ground 3) “a deliberate abuser who exposes himself to a situation he is likely to abuse and which he knows he is likely to abuse, and who fails to take steps to prevent abuse by himself acts negligently in so failing”. We understand that it is intended to include the allegations of failure to report discussed elsewhere in this judgment in that formulation.

For the reasons we give more fully in paragraphs 153 to 160 below, we grant appropriate permission to appeal, so that these points will be available if the House of Lords should take a different view of any of the relevant principles. However, we dismiss the appeals on all the grounds argued for the reasons given in paras 39 to 41 and 66 to 69 above.

The application of the law to the three appeals: (iii) X and Y v Wandsworth London Borough Council

X and Y were contemporaries at the same school, although they did not know each other. Both were subjected to sexual abuse by the teacher who was their head of year: in that capacity he was entrusted with pastoral responsibility for their welfare. This teacher was in due course convicted and sentenced to imprisonment for his assaults on these two boys. The six-year primary limitation periods expired in 1999, and these claims were not started until November 2002 and June 2004 respectively. It was common ground that if permitted to do so the court would have exercised a discretion to extend the time for bringing these claims.

It was accepted that we were bound by authority to find that the defendant’s vicarious liability for the sexual assaults perpetrated by the teacher was subject to a non-extendable six year limitation period. In these circumstances the following issues arose for our decision:

So far as the first of these issues is concerned, we have explained we are bound by the decision of this court in Bryn Alyn to reject the contention that the school could be vicariously liable for the teacher’s failure to report what he was doing, or about to do, to these boys: see para 114 above.

As to the second group of issues, there were in each case very long periods of time in which the teacher acted in breach of the duty of care he owed these boys. In X’s case it started with a promise to X’s parents that he would look after X, moved rapidly through a period of favouritism to two sessions in the teacher’s school office in which he raised indecent topics and two episodes in the toilets when he perpetrated indecent assaults, all of this in the boy’s first year at the school. According to the evidence X gave at the trial, there may indeed have been eight episodes involving improper discussions, only two of which included intentional assaults. This only goes to show how artificial it is to segregate the assaults from the remainder of a course of conduct which leads to long-lasting psychiatric harm. Long after X said “no” to any further indecent assaults, the teacher persisted in picking him out for attention and protected him from the justified complaints of other teachers. This unwanted attention and protectionism ultimately led to X truanting from school. He suffered psychiatric injury from the cumulative effect of this prolonged course of conduct and financial loss resulting from his handicaps on the labour market due to his lack of a normal education.

In Y’s case the breaches of duty of care started with initial grooming (such as it was), went through a central six month period in his third year at the school which included frequent indecent assaults but much else beside – nudity, presents, trips to Richmond Park, the Esher golf range and Brighton, pornographic magazines and videos – and continued with a long period of obsessive interest after the boy said “no” to any further indecent assaults. The improper course of conduct led to truanting from school in this case, too, because the boy did not want to have to set eyes on the teacher at school. The psychiatric damage and consequential financial loss caused to Y resulted from a cumulative course of conduct in breach of duty that was not limited to the indecent assaults. There is indeed a further feature of this case in that Y’s mother was sufficiently worried about Y that she suggested to the teacher that Y might see a psychologist, only to be told that this was not necessary.

In each case the whole of this conduct was performed in breach of the duty of care the teacher owed these two boys as their head of year with pastoral responsibilities towards them. We find it unsatisfactory that we have to set on one side the intentional assaults, and we have already expressed the hope that the House of Lords will reconsider Stubbings v Webb at an early date.

All that is left, therefore, is a contention that those elements of the teacher’s breach of duty that did not themselves constitute intentional assaults or failures to report what he was doing or about to do to the boys are sufficient in themselves to ground these claims, on the basis that they made a material contribution to the psychiatric harm which these claimants suffered. It would be tempting to allow these appeals on this basis and to remit them to the county court for an inquiry into damages, but such an inquiry would have to be conducted on an entirely artificial basis which would bring the law into disrepute. We consider that it would be better for us to dismiss the appeals and to grant permission to appeal to the House of Lords, if permission is sought, so that the House can consider if it can do anything to rescue the law from its incoherent state without the intervention of Parliament.

As to the third issue, we have described how the teacher had a measure of pastoral responsibility towards Y. The limited acts of grooming – inviting Y into his office and asking him how he was getting on - which preceded the teacher’s offer to help in “fitness tests” took place in school hours and led to his offer to help Y get fit. Y trusted the teacher because of the school post he held, and the only reason why the judge rejected the contention that the defendant should be vicariously liable for his misconduct was because the sexual acts themselves took place off the school premises.

This cannot in itself be sufficient to dismiss an allegation of vicarious liability. The question that must be asked (see para 110 above) is: Can the teacher’s actions towards Y be fairly regarded as being performed in the course of his employment by the school? In our judgment they can. The facts of this case are quite different from a case that might concern the acts of a school groundsman or the acts of a teacher in the school holidays which had no connection with his responsibilities at the school. This teacher’s case falls into a special category because of his pastoral responsibilities for the boys’ welfare, with which his acts were closely connected, and we would reverse the judge’s decision on this point. We would add that we derived assistance in reaching this conclusion from the judgment of McLachlin J in Bazley v Curry 174 DLR (4^th) 46, particularly at paras 44 and 46.

A footnote

Since we heard argument in this case, Field J has delivered a judgment in C v D [2006] EWHC 166 (QB) in which he explored the possible availability of a Wilkinson v Downton cause of action in a case like this: see [1897] 2 QB 57. The matters complained consisted of one incident in which the defendant headteacher had videoed the claimant and other ten year old boys in his class while they were taking a shower, and another incident at about the same time in which he pulled down the claimant’s trousers and underpants and stared at his genitals. These claims were not advanced as claims in trespass, and indeed in Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406 Lord Hoffmann said at para 47 that Wilkinson v Downton had nothing to do with trespass to the person.

It appears from para 89 of Field J’s judgment that no claim in negligence was being made against the headteacher. Instead it was being said that the filming constituted “sexual abuse of the claimant and amounted to a breach of the duties the defendant owed him in respect of his care, safety and welfare”. The judge held that the headteacher owed no legally enforceable legal duty quoad the claimant other than “the common law duty to take reasonable care and not to touch him or threaten him so as to commit battery or assault”. In other words, it appears that the breadth of the potential duty of care was not explored as widely in that case as it was before us.

The judge examined the two incidents separately. He found that the claimant only suffered emotional distress as a result of the first incident, and he did not pursue that matter any further. On the other hand he found that the second incident caused the claimant to suffer psychiatric injury, and this led the judge to consider the headteacher’s state of mind when he behaved as he did (for which see Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406 per Lord Hoffmann at paras 41-46). He found that the headteacher did not subjectively intend that the boy should suffer psychiatric injury as a result of the second incident; that his acts were not calculated to cause such harm or done with the knowledge that they were likely to cause harm; and that psychiatric injury was not “so likely to result from his conduct for him not to be heard to say that he did not mean it”: see Wong v Parkside Health NHS Trust [2003] 3 All ER 932, per Hale LJ at 937. On the other hand, the judge held that the headteacher had been reckless as to whether he caused such injury, and as such was liable under the principle in Wilkinson v Downton.

In C v D the relevant allegations had been pleaded and were explored in evidence. No such allegation was made in either of the cases under appeal or canvassed in the grounds of appeal, and we decided in those circumstances not to reopen the appeal to hear submissions from the parties about the effect of this decision. It seems preferable for the law to develop along conventional modern lines rather than through recourse to this obscure tort, whose jurisprudential basis remains unclear, particularly as its use may itself attract limitation difficulties along Stubbings v Webb lines.

Conclusion

For these reasons we would dismiss all these appeals.

APPENDIX

PART A A v Hoare

The facts of the case

This is a second appeal, brought by the claimant with the permission of Smith LJ against an order made by Jack J on 7^th October 2005 when he dismissed her appeal from an order striking out her claim made by Master Eyre on 14^th June 2005. Master Eyre struck out the claim on the ground that the cause of action had arisen 16 years before the issue of the claim form and so was barred by limitation.

The facts may be taken substantially from the judgment of Jack J. The respondent has served in all seven periods of custody for serious sexual offences. In 1989 he was convicted of the attempted rape of the appellant on 22 February 1988 and was sentenced to life imprisonment. In 2004, while on day release from that sentence, he purchased a ticket for the national lottery. He won £7 million. He was released from prison on licence later that year. On 22^nd December 2004, A commenced proceedings against him in the High Court. She had previously obtained an order providing for her anonymity. The reason why the action was commenced when it was and was not started earlier was that until the defendant’s lottery win there was no prospect of his meeting any judgment obtained against him. That position was, as the judge put it, changed dramatically by his win.

The respondent’s case is of course that A’s case is time barred through the operation of section 2 of the 1980 Act. It is not in dispute that, if section 2 applies to her claim, it is indeed time barred. The question is whether there is any basis upon which it can be held that the claim falls within section 11(1) of the 1980 Act. Even if it does, A does not say that she is entitled to bring the claim as of right because she acquired the relevant knowledge for the purposes of section 11 long ago and the period of three years from that date has long expired. It follows that in order to avoid the time-bar A must persuade the court that section 11(1) of the 1980 Act applies and that this is a case in which the court should exercise its discretion under section 33 of the 1980 Act to extend the time so that the proceedings are treated as in time.

The arguments on the appeal and Jack J’s conclusion

It was accepted on behalf of A that both the master and the judge were bound by the decision of the House of Lords in Stubbings v Webb to hold that her claim was time barred. It was, however, submitted that section 11(1) of the 1980 Act should be construed, as it was in Letang v Cooper, in order to ensure that the claimant had access to the courts under article 6 of the Convention. Alternatively it was submitted that section 33 should be construed as applying to a case of this kind in order to give the court a discretion to extend the six year period when it was equitable to permit the action to proceed. It was submitted that this would be such a case, although the judge was not asked to say how he would exercise such a discretion on the facts.

The judge held that the issue whether article 6 would be infringed on the facts of A was determined by the decision of the European Court in Stubbings v United Kingdom. He so held on the basis that the European Court decided that the 1980 Act, as construed by the House of Lords in Stubbings v Webb, was within the margin of appreciation afforded to Member States and that in the light of that decision he, too, should hold that there was no infringement of the claimant’s rights under article 6. He went on to consider whether, in the light of para 54 of the judgment in Stubbings v United Kingdom, he should hold that, given the recommendations of the Law Commission and Parliament’s failure to implement them, it should be held that there was now an infringement of the claimant’s rights under article 6. He held that the passage of four years since the Law Commission’s Report was not so long that, as he put it, what was within the margin of appreciation ceased to be so.

For the reasons given in paragraphs 116 to 120 above we have no alternative but to dismiss A’s appeal.

Part B H v Suffolk County Council

The facts and the claim

In H the appeal is by the claimant, H, against an order made by His Honour Judge Yelton in the Southend County Court on 11^th March 2005 dismissing his claims against the Council and Robert Bennett. The sole respondent to the appeal is the Council, but the Secretary of State for Constitutional Affairs has also intervened. The essential facts are not in dispute. H was born on 7^th February 1975 and thus became 18 years of age on 7^th February 1993. Between 7^th December 1989 and 29^th October 1990 he was a boarder at Kerrison House School near Eye in Suffolk, a school owned and managed by the Council. It used to be an approved school but when H went there in December 1989 it was a residential school for teenage boys with various difficulties. H had himself encountered many difficulties in his teenage years and throughout 1989 he was the subject of interim care or supervision orders.

The judge held that during the time that H was at the school he was sexually assaulted by one of the teachers, Mr Bennett. This did not, however, come to light until July 1999 when he was interviewed by the police after other allegations of sexual abuse at the school had been made. He collapsed both physically and emotionally for a number of days following those interviews. In July 1999 he made two statements to the police describing his abuse at the hands of Mr Bennett. Although no criminal proceedings were ever brought, he was awarded compensation by the Criminal Injuries Compensation Authority in the amount of £2,000. This sum was substantially less than it would otherwise have been, by reason of the fact that he had criminal convictions.

He started this action against the Council and Mr Bennett on 26^th April 2002. In the particulars of claim he alleged that he had been sexually assaulted on about 20 to 30 occasions in various ways. He also alleged that he had been threatened by Mr Bennett. In addition, and no doubt because of the effect of the decision of the House of Lords in Stubbings v Webb, H’s claim was put in negligence.

It can immediately be seen that, on the basis of Stubbings v Webb, a claim framed in trespass, assault or battery would be time barred on the facts. H’s cause of action against Mr Bennett and indeed the Council accrued between December 1989 and October 1990, although because of his age, time did not start to run until his 18^th birthday on 7^th February 1993. Since the action was not begun until 26^th April 2002, a claim framed in trespass was by then time barred.

In an attempt to avoid this result H’s claim was pleaded in negligence. He alleged a breach of a duty of care. The case against the Council was pleaded in two ways, first (in paras 13 and 21 of the particulars of claim) as breaches of duty owed by the Council to H and secondly (in para 14) on the basis that the Council was vicariously liable for breaches of duty owed by Mr Bennett to the Council. There were essentially two types of direct breach of duty alleged: negligence at the time when Mr Bennett was recruited and negligence in the way the school supervised or monitored his activities. As to vicarious liability, the Council was said to be vicariously liable in respect of the two main allegations of breach of duty that were pleaded against Mr Bennett. These related, both to the carrying out of the acts (and threats) themselves, and to his failure to report to the Council that he intended to abuse H and the harmful consequences of his conduct vis-à-vis H.

At the start of the trial the judge was asked to strike out the claim against Mr Bennett, who was represented by counsel throughout the trial. The judge directed himself by reference to the decision of the House of Lords in Stubbings v Webb and to the later decisions of this court in KR v Bryn Alyn and C v Middlesbrough Borough Council (see paras 33-36 above). He derived from those authorities the proposition that, where deliberate sexual abuse is alleged, the limitation period is a six year non-extendable period which dates from the time of the claimant’s majority. He said that he regretted that that was the state of the law but that he was bound by those decisions so to hold. He therefore struck out the direct claim against Mr Bennett.

The trial and the appeal

No attempt was made on H’s behalf to challenge that decision at that time, and the trial proceeded on the footing that his claim against Mr Bennett personally could not succeed because it was time barred. The trial was concerned solely with his case that the Council was in breach of the duty of care it owed him and not with the question whether it was vicariously liable for Mr Bennett’s abuse. Mr Bennett nevertheless gave evidence at the trial and, indeed, his counsel was present throughout the trial because the Council was claiming an indemnity or contribution from him if it should be held liable. In the event the judge held that there was no breach of a duty of care owed by the Council to H.

H sought permission to appeal against that decision and permission was granted on paper by Brooke LJ. As stated earlier, two grounds were advanced. The first was that the judge should have held that the Council was in breach of the duty of care which it owed to H. This is essentially an appeal on the facts, to which we will turn in a moment. The second ground was that section 2 of the 1980 Act is incompatible with the HRA. This ground was extended in argument by an attempt to distinguish Stubbings v Webb on the ground that it only applies to individuals. For the reasons given earlier, the appeal on ground two must fail.

Ground three seeks to reopen the allegations in paras 14.3 to 14.5 of the particulars of claim. H needs permission to appeal on that aspect of the case. We consider that application first. In para 14 of the particulars of claim it was alleged that Mr Bennett was in breach of his duty of care to H and the particulars of breach were that he

“14.1

carried out the acts alleged in paragraph 9 herein [viz the sexual abuse referred to above];

14.2

made the threats set out in paragraph 10 [as referred to above];

14.3

failed to report to [the Council] his intentions to sexually abuse [H];

14.4

failed to report to [the Council] that he was carrying out his intentions; and

14.5

failed to report to [the Council] the harmful consequences of his conduct and activities towards [H]. ”

Fortunately we have a transcript of the beginning of the trial. It was agreed at the outset of the trial that the judge would first consider the issue whether the claim against Mr Bennett was time barred. Mr Field sought to distinguish Stubbings v Webb on the basis that H’s claim was in respect of a course of conduct which did not amount to a trespass and was only actionable on proof of injury. In short he submitted that the claim could be put in negligence or breach of duty. However, he realistically recognised the problems created for him by the decisions of this court in Bryn Alyn and C v Middlesborough, which we have discussed at some length.

Thus he said that, so far as the allegations of failure to report alleged in paras 14.3 to 14.5 of the particulars of claim were concerned, although he did not concede the point, in the light of those decisions, counsel for Mr Bennett was likely to persuade the judge that the claim would fail. The point he developed before the judge was that the allegations of abuse did not amount to trespass to the person and so were not caught by the decision in Stubbings v Webb. No separate argument was, so far as we can see, addressed to the judge with regard to the allegation of threats.

The judge rejected Mr Field’s submissions. He did so with regret on the basis (as stated above) that the effect of the decision in Stubbings v Webb, as refined in the Bryn Alyn and C v Middlesborough cases, was that the kind of deliberate abuse alleged against Mr Bennett was not negligence or breach of duty within section 11(1) of the 1980 Act and was subject to the non-extendable six year period provided for in section 2. He accordingly struck out H’s claim against Mr Bennett.

The trial, which took place immediately after the judge’s ruling proceeded on the basis that the whole of the claim against Mr Bennett failed, that the claim based on vicarious responsibility also failed and that the sole question was whether the Council was in breach of a duty it owed directly to H in the two respects to which we have referred. None of the evidence focused on the question whether Mr Bennett should have reported to the Council as alleged in paras 14.3 to 14.5 of the particulars of claim. The issue was not explored.

In addition, permission was not initially sought to appeal on the reporting point and H did not appeal against the order striking out his claim against Mr Bennett. As a result Mr Bennett was not represented at the hearing of the appeal. In these circumstances it is submitted on behalf of the Council that it would not be just, either to Mr Bennett or to the Council which is said to be vicariously liable for Mr Bennett’s failure to report, to permit H to raise the reporting point at this stage. We have considered that submission with care but, as stated in para 123 above, we have reached the conclusion that in this unusual case it would not be unjust to permit H to rely on the Council’s vicarious liability for a breach of duty in relation to a failure to report, so that the point would be open for argument in the House of Lords in his case, too, even though we are bound to reject it.

If the House of Lords were to depart from the decision in Stubbings v Webb, or indeed to distinguish that decision in one of the ways suggested above, it is not, as we understand it, suggested that H could not argue that the Council was vicariously liable in respect of the trespass committed by Mr Bennett. That is so even though (i) the appellant’s notice does not include a challenge to the correctness of Stubbings v Webb or the submission that it can be distinguished, whether on the ground that it does not apply to public authorities or on any other ground and (ii) H did not appeal against the order striking out his claim against Mr Bennett.

In these circumstances justice seems to us to require that, if the House of Lords were to hold that Mr Bennett owed a duty of care to report his intention to abuse H or the fact of his having done so or indeed was otherwise in breach of a duty of care or negligent, H should be able to advance a case that the Council was vicariously responsible. As in the case of the abuse itself, it is not possible to conceive that any further evidence would have been or be needed on this technical legal issue. We will therefore grant permission to amend the notice of appeal and (if necessary) the particulars of claim so that this point remains a live one.

That conclusion is subject to this. In so far as it is suggested that H should be able to rely upon the threats alleged in the particulars of claim, it is important to note that, so far as we can tell, at no stage during the trial was it argued on behalf of H either that H could succeed on the basis of the alleged threats as opposed to the alleged sexual assaults. Moreover the judge made no clear findings about threats. In these circumstances it is, in our judgment, too late for H to rely upon the alleged threats as a separate basis of liability.

We have already given our reasons for concluding that H’s appeal must be dismissed on all grounds other than ground one, which involves an appeal on the facts and to which we now turn.

Ground one - appeal on the facts

We turn to the question whether the judge was wrong to hold that the Council was in breach of a duty of care owed to H on the ground that it failed to monitor Mr Bennett’s activities and that, if it had monitored them properly, it would have discovered the truth in time to prevent his suffering psychiatric injury.

The judge heard evidence from a number of witnesses including the appellant, who said that he was first buggered and subjected to other sexual practices on a camping holiday and that the abuse continued at Kerrison, in Mr Bennett’s flat, in a field and in the school showers. Having heard the appellant’s evidence, the judge summarised his conclusions in paragraphs 34 and 40 of his judgment as follows:

“34.

I formed the view after careful consideration of the claimant’s evidence that even with its internal contradictions and its vagueness it was essentially truthful and that he was indeed sexually abused by the second defendant.

40.

In reaching that conclusion, I am not finding more than that during his time at Kerrison the claimant was sexually abused by the second defendant. I am not finding that specific assaults occurred at specific times, because as I have said I believe that the claimant unconsciously exaggerates, but is basically truthful.”

As to the date of H’s knowledge within the meaning of section 11(1) of the 1980 Act, if it had been applicable, he held that it was not before July 1999. It followed that if section 11(1) had been applicable, the action would not have been time barred because the action was begun within three years of the date of knowledge. No question of the exercise of the court’s discretion to extend time under section 33 of the 1980 Act would have arisen. The judge disposed of the alleged breach of duty in recruiting Mr Bennett quite shortly in paragraph 52 of his judgment as follows:

“52.

… Mr Bennett had a background of experience in care work, and came with good references. He clearly was an able man and to those who were not the subject of his attentions he was well-regarded: Mr Lindsay had nothing but good memories of him. I see nothing in the references or the recruitment process which in any way suggests that the County Council were at fault in deciding to employ Mr Bennett.”

The argument before the judge focused, as it has before us, on the question whether the Council failed properly to supervise or monitor Mr Bennett and/or whether it failed to pick up the warning signs which, on H’s case should have alerted it to Mr Bennett’s propensities. The judge considered this part of the case in some detail in paragraphs 53-64 of his judgment and held that the Council was not in breach of duty. H’s claim against the Council accordingly failed.

This ground of appeal asserts that the judge erred in concluding that the Council was not in breach of its duty of care to H in failing to suspend Mr Bennett or to take other adequate measures to protect H from abuse.

In considering this ground of appeal it is important to remember that the judge saw and heard the witnesses and was in a far better to determine the facts than this court, which will only allow an appeal on the facts if persuaded that the judge was wrong, notwithstanding those advantages. There are many decisions to that or similar effect: see eg Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577 at paras 6 to 23. In this case, apart from psychiatric evidence, the judge had the advantage of oral evidence from H, from Colin Lindsay, from the headmaster, Mr David Welch, his line manager, Mr Martin Ayres, and a foster carer who worked at the school as an independent consultant, Mrs Daphne Ashley, on behalf of the Council and from the second defendant Mr Bennett.

We have already quoted paras 34 and 40 of the judgment which set out the judge’s view of H’s evidence. The judge rejected the evidence of Mr Bennett as evasive and dishonest. He held that he picked on H because he was vulnerable and unlikely to be believed if he complained. As to Mr Welch and Mr Ayres, the judge said this in para 53 of his judgment:

“It is right to say immediately that in relation to the allegation that the first defendants failed properly to supervise Mr Bennett, or alternatively that they failed to pick up the warning signs which, says counsel for the claimant, should have alerted them to his propensities, that Mr D Welch, the then headmaster of Kerrison, and Mr M Ayres, his line manager at Social Services, were both impressive witnesses, clearly conscientious men who ran what on the whole was a happy and healthy school. There was no suggestion that Kerrison had been the object of other such accusations or that there was any internal cover-up or anything of that sort.”

The judge considered each of the aspects of the evidence relied upon on behalf of H as matters which should have alerted the school. They were (1) visits by boys to Mr Bennett’s flat alone, (2) the fact that Mr Bennett alone took three boys on a camping trip to Devon and (3) anxieties raised by Mrs Ashley. We consider each in turn, since they are again relied upon in this appeal.

Visits to Mr Bennett’s flat

H’s case was that the abuse started on a week’s camping holiday in Devon in late May and early June 1990 to which we will return in a moment. However, the first incident relied upon by Mr Cooksley in support of the appeal took place before the camping holiday. A daily record sheet was kept for each boy and there is an entry for H for 13 May 1990 made by a member of staff which states:

“Terry out with RJB [ie Mr Bennett] for the afternoon. Returned at tea time and went down the gardens. Evening spent watching a video in RJB’s flat.”

It was the case for H that it should be inferred from that entry that he had spent the evening alone in Mr Bennett’s flat and that that was contrary to the instructions given to staff. Mr Ayres said in evidence that it was unacceptable for a boy to be invited into a teacher’s flat alone, although he also said that it was not unacceptable if he was not alone.

The judge said this with regard to that entry in paragraph 33 of his judgment:

“The second defendant said that an entry in the daily log before the camping holiday indicating that the claimant had watched a video in his flat was false: he had no video equipment and the claimant had never been in his flat. He accepted that he had been warned by the headmaster not to have pupils in his flat alone, but said that the only time that had occurred was when one of the other boys (Mark Dugdale) stood inside the door for a short time.”

The judge said in paragraph 37 of his judgment that he did not believe that the log entry in relation to the video was false, although that was not to say that anything untoward occurred on that occasion and there may well have been other boys there at the same time. The judge expressed his conclusion in relation to this point thus in paragraph 55:

“I have already discounted the entry about the claimant visiting Mr Bennett’s flat as being a warning sign. It was common knowledge that boys were not to visit staff accommodation alone, and it seems unlikely that the member of staff who filled in the log would have done so knowing that a disciplinary offence had been committed without bringing the matter to Mr Welch’s attention, or at the very least that Mr Welch would not have been alerted to it by reading the log or by someone else seeing the entry in the log.”

We can see no sensible basis upon which the judge’s conclusions set out above can properly be reversed. In short he was not persuaded that the entry was sufficient to disclose a disciplinary offence because the entry does not disclose that H was alone watching a video in Mr Bennett’s flat. It seems to us that the judge must have accepted Mr Ayres evidence that his conduct would only be unacceptable if H was in the flat alone with Mr Bennett and we can see no reason why he should not have done so.

There was also a suggestion that there was an occasion when a different boy was in Mr Bennett’s room doing his homework in respect of which Mr Bennett was said to have been given a warning. Indeed, Mr Welch said in evidence that he recalled one occasion when a member of staff brought to his attention the fact that a boy had been doing his homework in Mr Bennett’s room. His evidence was that he told Mr Bennett that that was unacceptable and that arrangements were to be made for it to be done somewhere else. As to that, the judge said this in paragraph 56 of his judgment:

“Further, I do not see that one incident where a boy did his homework in Mr Bennett’s flat, on a date which is not clear, as a result of which he was given a warning, should have alerted the [Council] to the fact that [Mr Bennett] was or might be attracted to teenage boys.”

Again, we do not think that those conclusions can fairly be criticised. It is, of course, very easy to be wise after the event.

The camping holiday

Mr Bennett was the only teacher on the camping holiday. In addition to H there were two other boys, Chris Hodges and Colin Lindsay. Two criticisms were advanced of the trip. The first was that more than one member of staff should have gone and the second related to the tent arrangements. The first point was put to Mr Welch, who said that he had discussed the matter with H’s social worker and his adoptive parents, all of whom agreed.

The judge’s conclusions on this put are set out in paragraph 57:

“It was certainly unusual for one member of staff on his own to take boys away. Mr Welch clearly gave careful consideration to the expedition and, with the consent of the parents concerned, permitted it. As he said, he had to act according to the standards then thought appropriate, which were unwritten. …. Mr Ayres said that he would have had no problem at that time with the camping expedition, but would not have been happy with a member of staff sharing with a boy.”

In these circumstances we do not think that any fair criticism can be advanced of the judge’s approach or conclusions on the question whether the school should have forbidden a camping trip with only one member of staff.

The second criticism of the trip relates to the sleeping arrangements. It was (and is) said that Mr Bennett should not have been permitted to share a tent with a boy. Unfortunately H’s case on this point was not put to Mr Welch. In any event, the judge said that it seemed to him that on the balance of probabilities the school was not told by Mr Bennett in advance that he was sleeping in the same tent as a boy and that there was no evidence that it knew of it later. It is said that the school, in the person of Mr Welch or his delegate should have enquired. Again, however, there is no expert evidence on this question and we see no reason to think that in 1990 it would not have been appropriate to leave Mr Bennett in charge of sleeping arrangements without checking up on him, at any rate in the absence of evidence that he was not in some way to be trusted.

However that may be, as we see it, the point is only relevant if it is shown on the balance of probabilities that the abuse would probably not have occurred if the suggested precautions had been taken. It appears that there were two tents but it is far from clear who shared a tent with whom. The judge did not find that H shared a tent with Mr Bennett. H said Colin Lindsay was not on the trip but the judge accepted the evidence of Mr Lindsay that he was. H said in his statement to the police that he shared a tent with ‘John’ and that Mr Bennett had a tent on his own. The judge recorded that Mr Bennett agreed in evidence that he had shared a tent with Chris Hodges and that H had shared a tent with Colin Lindsay.

In these circumstances, there seems to us to be no satisfactory basis upon which it could be held that the decision to permit two tents to be used was causative of any abuse. The judge was justified in rejecting this part of H’s case.

Mrs Ashley’s anxieties

In about July 1990 Mrs Ashley expressed concern that Mr Bennett might be getting too close to the boys and that there was a possibility that he might be grooming a particular boy. Her concern related to Chris Hodges. There was evidence that Mr Bennett visited Chris Hodges’ parents’ house to help him decorate his room

She expressed her concern to Mr Ayres, who spoke to Mr Welch. The judge held that when the school learned of Mrs Ashley’s concern alarm bells should have rung but he also held that they did ring. Mr Ayres subsequently visited the school and had a meeting with Mr Bennett and, the judge held, the deputy headmaster Mr Page. The judge held that at that meeting Mr Bennett was reminded to maintain proper boundaries and Mr Page was told to supervise Mr Bennett carefully. We see no reason to reject those findings of fact.

The judge further held that that was not an inappropriate response. He added that he did not see that the Council was negligent in not suspending or disciplining Mr Bennett at that time. He considered both the individual incidents and the evidence in the round and concluded that, judged by the standards of the time, the whole of the concerns about Mr Bennett which were known at the time were not such that the Council was in breach of a duty of care or negligent in not disciplining Mr Bennett.

In our judgment, the judge was entitled to reach that conclusion. We cannot properly reverse any of the judge’s findings of fact. He was entitled to make all of them. Moreover, as indicated above, no expert evidence was put before the judge that no school in the position of Kerrison would have acted as the Council did. In all the circumstances, we have reached the clear conclusion that the judge was entitled to hold that the Council was not in breach of its duty of care. It follows that the appeal must be dismissed.

Part C X and Y v Wandsworth London Borough Council

Introduction

This is an appeal by the claimants against a judgment of Judge Cotran on 7^th October 2005 whereby he dismissed their claims for damages against the London Borough of Wandsworth arising out of the sexual abuse perpetrated on them by a teacher when they were pupils at a secondary school in Wandsworth which was maintained by that authority. The claim of the first claimant, whom we will call X, was issued on 13^th November 2002, when he was 29. The claim of the second claimant, whom we will call Y, was issued on 23^rd June 2003, when he was 31. The incidents in question occurred between 1984 and 1987, and any claim against the teacher for trespass to the person was statute barred by the time the claims were issued (Stubbings v Webb [1993] AC 498). The claims were therefore brought in negligence against the defendant, and it was common ground that if the claims were otherwise viable, the claimants would in any event have been granted permission to proceed with their claims pursuant to the operation of section 33 of the Limitation Act 1980.

The teacher was not himself a party to the proceedings – in May 2001 he was convicted of indecent assaults in connection with these matters and sentenced to three years imprisonment – and there was no dispute about the underlying facts of the two cases.

The first claimant’s experiences at school

 X first attended the school in September 1984 when he was 11 years old. Mr Derek Harding was “Head of Year” for Year 7. This was the age-group, consisting of six classes, of children who entered the school at 11. He was then 37 years old and had been a teacher at the school for 14 years. He remained Head of Year for this group as they progressed through the school. The head teacher said that he was highly respected by pupils, parents and teachers. He was viewed as a pillar of the school community, and he was very visible around the school premises. He taught X maths and geography, in addition to undertaking pastoral responsibilities towards all the children in that year.

Part of this role involved caring for pupils who were bullied. When X  was bullied soon after he joined the school, Mr Harding invited his parents to come and talk to him. He told them he would take good care of him and would arrange to have the bully removed from the form. After this incident Mr Harding developed the habit of inviting X to see him in his office, which was located in the corner of his classroom. During lesson times the only route to the boys’ toilets was through that classroom. Mr Harding would arrange to see X in his office at times when the classroom was empty. At first he would ask him general questions about his home life and his life at school and check that everything was going well.

After a number of these meetings, Mr Harding on one occasion asked the boy about his penis, and how things were with it. When X asked him what he meant, Mr Harding responded by pointing to his groin area, and asked how things were down there. The boy felt very uncomfortable, but he was assured that these questions were concerned with his educational welfare.  X told him that things were OK down there, and Mr Harding ended the meeting by saying that what he had said to him would be treated as confidential.

At the next meeting, he was again asked about things at home and at school, and a similar conversation ensued about the state of his penis.  X was only 11 years old, in his first year at senior school, and he was very frightened that if he did not answer these questions he would get into trouble. On this occasion Mr Harding asked him whether he had ever touched his penis, and if he had ever played with it and made it erect. He also asked whether he had ever ejaculated. He had to explain what he meant by this. The conversation ended with Mr Harding saying that he would like to have a look at the boy’s penis to check that everything was OK. Although the boy originally said “no”, he eventually felt constrained to agree that he would do this in the boys’ toilet when next they met.

The third of this series of meetings began in the same way, and then Mr Harding gave X a key to the boys’ toilet and told him to go into the first cubicle and take off his trousers and pants. When Mr Harding joined him, he told him to play with his penis and make it erect. Once it was erect Mr Harding touched it and then pulled the boy’s foreskin back and forth, without saying a word. He then left the cubicle, and the boy joined him in his office in due course. Mr Harding then told him that things seemed to be OK, but he would need to continue to check. He told the boy to try to masturbate at home because he would have major problems in later life if he did not. He ended that meeting by saying he would need to see him again and go through the same procedure again because it was for his educational welfare.

When X made his original statement to the police on 10th July 2000, he said that the fourth meeting went along the same lines as the third, except that on this occasion he did not get an erection. Mr Harding then stepped forward, placed his open hand under his penis and testicles, and then cupped and squeezed his testicles, thereby causing the boy to have an involuntarily erection. He then stepped back and smiled, and instructed the boy to pull his penis in order to masturbate. After that he said that everything was OK and told the boy to get dressed. When they reassembled in his office he gave him instructions similar to those given on the previous occasion.

When he made his statement to the police in July 2000 X believed that all these meetings had occurred before the Easter break in 1985. He spoke of one final meeting in the toilet when he had managed to get an erection, and Mr Harding had left the toilet without touching him. After this the boy steeled himself to say “No” whenever Mr Harding asked to see his penis.

His witness statement for the civil proceedings was made in August 2002. It is not easy to understand from para 26 of that statement how many separate incidents in the toilet he was describing after the first. He appeared to describe a fourth occasion when “he had his go at masturbating me”. He then said that

“this whole episode happened on several occasions, and on one occasion I did not get an erection and he stepped forward and placed his open hand on my testicles, cupped them and he started squeezing them until my penis became erect. Once erect, he masturbated me. I just froze, I kept my eyes closed and wished I were not there. Then he let go and stepped back. I remember he smiled and seemed pleased. He then instructed me to masturbate. Looking back I now think he wanted me to ejaculate, but I never did”. (Emphasis added)

In his evidence at the trial he said that what he called “the abuse” probably happened about eight times, although he had only previously spoken about four incidents. He said that it was on either the third or fourth occasion that Mr Harding cupped his testicles and did the pulling and touching, and that this happened twice. He now believed that the meeting with his parents took place at about Easter 1985, and that the abuse started about three months after that meeting. The eight incidents took place between then and the end of the year.

After he had said “no”, although Mr Harding would continue to summon him to his office or pull him out of dinner queues or wait for him in corridors and pull him on one side, he would answer his questions about his home life and his life at school but he would consistently say “no” when invited to show Mr Harding his penis again.

He said that the time came when he was so frightened of Mr Harding that he became too scared to go to school, and he found himself trying to avoid him. He spent most of his home life worrying lest Mr Harding told people that he had shown him his penis or told his parents that he had let him play with him. He would play truant as a means of reducing these fears, and his schooling suffered as a result. Mr Harding, however, always gave him merit awards, and he would cover up for him when other teachers complained about his truanting or other misbehaviour. He was never punished, and from the third year onwards he seldom attended school. He told the judge that he could barely read or write when he left school.

We will describe his later history and the psychiatric evidence after we have described how Mr Harding treated Y. For the present it is sufficient to note that in his judgment the judge did not refer to X’s witness statement or his evidence at the trial at all. He restricted himself to quoting verbatim from the prosecution’s case summary in the Crown Court proceedings in 2001, and from the particulars of claim which referred to only four meetings, the last two of which involved incidents in which Mr Harding touched X’s genitals.

We have already referred to the very unsatisfactory state of the law. The judge’s treatment of the evidence at the trial was equally unsatisfactory. The statement of case referred to two incidents in the toilet when Mr Harding touched his penis each time, touching his testicles on the second occasion. His evidence to the police spoke of three incidents in the toilet, in two of which he was touched. His witness statement appeared to speak of several occasions in the toilet after the first one, on three of which he was touched. His evidence at the trial did not identify more than three incidents of “touching” at most, but referred confidently to eight incidents of abuse in all. We mention these matters because of the artificial distinction that now has to be made between incidents of intentional trespass and incidents in which the abuser, although requiring the abused person to perform indecent acts in front of him, does not actually touch him. Since no application was made to amend the statement of case and we do not know what the judge made of the claimant’s oral evidence we will have to proceed on the basis that the judge found proved the four episodes pleaded in the statement of case and no more, the last two of which involved Mr Harding in handling the claimant’s genitals.

The second claimant’s experiences at school

Y joined the school at the same time as X, but he was in a different class and did not know him at all. Mr Harding did not start expressing an interest in Y until his second year at the school, when he would beckon him into his office and ask him how he was getting on. In his third year Y started playing American football on Sundays with a club in Streatham Park. This had nothing to do with his school activities, but it became known within the school that he was doing this, and there came a time when Mr Harding would call him into his office and ask if he would like help him with his fitness. He said that he would want to test Y’s pulse rate at his home in order to gauge his fitness level, and that it would be best if he wore minimal clothing, or better still, no clothing at all, in order to carry out the tests accurately. Y trusted Mr Harding because he said he had played a lot of sport in the past and he seemed to know what he was talking about.

Mr Harding arranged to meet Y at Collier’s Road Underground station. He then drove him to his home in Southfields. There was never anybody else in the house when Y was there. They went upstairs to a back bedroom, where the boy was told to undress. He stripped down to his boxer shorts and was then persuaded to take these off. The exercises involved press-ups, sit-ups and running up and down the stairs, and intermittently Mr Harding took Y’s pulse. After about half an hour he was told to lie on the bed face down, and Mr Harding purported to give him a full body massage. He was then told to turn over, and the massage continued.  Y had an involuntary erection when his thighs were massaged, but he was told that this was a natural reaction. The conversation moved on to masturbation.  Y said he had done it in the past, but he accepted Mr Harding’s offer to show him how to do it properly. Mr Harding then masturbated him to ejaculation. He told Y that this was therapeutic and would help him to relax.

The same thing happened the next time they agreed to meet, and these meetings continued over a six month period between about June 1987 and January 1988. They occurred once a week during the school term, and sometimes more often during the holidays. Mr Harding would sometimes drive his car to meet Y near his home. Sometimes they went to Richmond Park, where Y would jog and exercise under Mr Harding’s supervision. No acts of indecency occurred then. Sometimes Mr Harding drove Y through quiet residential streets to a secluded area where he would masturbate him.

Y said that throughout this time he trusted Mr Harding and quite liked being with him. He knew that he was not gay, and any concerns he might have had that Mr Harding was gay were removed when the teacher produced some soft porn magazines from the glove compartment in his car. As the autumn wore on Mr Harding began to demand more emotion from Y while he was masturbating and while they were looking at pornographic magazines together. On two occasions Mr Harding rented pornographic videos, and he once masturbated Y while they were watching one of these videos from the sofa in the sitting room. Mr Harding told him to call him Derek, and to say “Derek I love you”, and he gave him athletic vests and shorts, exercise equipment and handgrips, and tracksuit bottoms as presents. He also took him on trips to a golf range in Esher and to Brighton.

Gradually, however, Y felt that Mr Harding was interfering with his life and eventually, when Mr Harding asked if he could put a finger up Y’s anus, it all came to an end. He said “no”, and although another appointment was arranged, Y did not keep it. This made Mr Harding very cross. But he still seemed to be obsessed with how the boy was getting on. If Y walked past his office he would call him in, and he generally took more of an interest in him than he needed to. Eventually things got to a point at which the boy no longer wished to go to the school because he did not want to have to see Mr Harding. He started truanting, and he eventually left school two months early without taking his GCSEs.

He never told anyone about what was going on. His parents had separated, and he used to tell them that he was meeting a friend, or going shopping, at the times when he was meeting Mr Harding. He stopped playing American football about two months after his relationship with Mr Harding ended.

The psychiatric evidence in each case

Mr Harding’s activities had a disastrous effect on the lives of these two young boys. It is unnecessary to say very much about the details, since damages were agreed (subject to liability) and there was no dispute about the evidence of Professor Maden, who was the single joint expert.

In short, X’s life was very disturbed after he left school. He was eventually referred to a psychiatrist in 1995. At the end of his interview he was just reaching the door when he mentioned in passing that he had been abused by a teacher when he was at school. The psychiatrist said she would have to report this to the authorities if he told her any more, and this led him to storm out of the room. A little later he went down to the school with a baseball bat, intending to kill Mr Harding if he saw him. When he could not find him, he went instead to his mother’s place of work and told her everything that had happened to him at school.

Professor Maden saw X in the summer of 2002, a year after he had given evidence against Mr Harding at his criminal trial. He concluded that he was suffering from an emotionally unstable personality disorder. He was prone to mood swings, substance misuse, and volatility within relationships. He also suffered from long-standing feelings of anxiety and depression, combined with anger and frustrations about the abuse.

The professor considered that the sexual abuse perpetuated by Mr Harding had caused the mixed disorder of conduct and emotions during late childhood. It was reasonable to suppose, on the available evidence, that hereditary factors accounted for a third of X’s personality disorder, and that the sexual abuse accounted for the other two thirds, as well as being the cause of his long-standing feelings of anxiety, depression, anger and frustration. The report continues:

“The sexual abuse by Harding was likely to have long-term consequences in anybody. It was inflicted over a prolonged period, there was abuse of trust, it was inflicted at a sensitive period in the social and psychosexual development of the victim, and the perpetrator exhibited the victim’s fears about his future, normal development. The social consequences of the abuse were continued long after the sexual abuse itself had finished, in Harding’s attempts to manipulate the victim. Effects of the abuse were compounded by the fact that the abuser was a teacher, and the abuse therefore interfered with the victim’s education to a disastrous extent.”

Y’s life after school followed a similarly disturbed pattern. In his case he did not disclose what had happened to him at school until 1999. When Professor Maden saw him in January 2003 he was an in-patient at a psychiatric hospital. He summarised Y’s history by saying that he had suffered from lack of confidence, difficulty in sustaining relationships, difficulty in holding down a job and difficulty in establishing a stable, independent life. In psychiatric diagnostic terms these problems amounted to a personality disorder, with features of anxious avoidant personality disorder and of emotionally unstable personality disorder.

In addition to these problems Y had suffered from chronic feelings of depression throughout most of his adult life, with more serious episodes of depression superimposed on this background. At least one of these episodes had been severe and had led to a serious suicide attempt when he could easily have died. Although his mother had a history of depression it was event-related and was not of the same recurrent type. In Y’s case the genetic contribution to his problems should be regarded as a vulnerability factor rather than the cause of his problems. Professor Maden continued:

“Assuming that the Claimant’s account is true, then the main cause of his adult psychiatric problems is the experience of sexual abuse in childhood. The sexual abuse involved a breach of trust and directly jeopardised his education. The sexual abuse occurred at a particularly vulnerable time, as he had just begun to establish relationships with girls, and it is reasonable to assume that sexual abuse by an older man at this time would lead to confusion about sexual identity and consequent low self-esteem. The depth of the Claimant’s shame and embarrassment about the abuse is reflected in the length of time it took him to disclose his experiences. The time course of the emergence of his symptoms is also consistent with causation by the sexual abuse.”

The way the claimants’ case was put

A number of different allegations were made in the two statements of case, but for the purposes of this appeal it is necessary only to consider one element of the allegations of negligence. In X’s case the history was set out in para 4 of the particulars of claim and the allegations of negligence were framed in the following way in para 6.1(D):

“6.1

The Defendant, its servants or agents, were negligent and/or in breach of duty in that they:

(D)

By their servant/agent Mr Harding acting in the course of his employment or in activities closely connected with his employment:

(a)

Did not act in the Claimant’s interest when purporting to advise and guide him. It is the Claimant’s case that Mr Harding, whilst purporting to advise and guide the Claimant, groomed and entrapped him; further that this conduct was in breach of Mr Harding’s duty of care to act in the Claimant’s interest when advising and guiding him.

(b)

Injured and harmed the Claimant by destroying the trust which the Claimant had placed in him and by abusing and harassing the Claimant sexually and emotionally in the manner described in paragraph 4 above.

(c)

Failed to protect the Claimant from emotional, psychiatric and psychological injury and instead caused him injury by abusing and harassing him.

(d)

Caused as a result of the abuse the Claimant to be injured so as to be unable to take advantage of the education that was provided to him.

(e)

Failed to report the fact that he was unable to act in the Claimant’s interest and had abused the Claimant sexually and emotionally.”

Y’s case was advanced in identical terms except that it contained an additional averment to the effect that Mr Harding took advantage of the Claimant’s vulnerability in the knowledge that his parents were separated and that he lived with his mother.

No allegation of trespass to the person was made in either case.

Ms Gumbel QC, who appeared for the claimants both in this court and in the court below, developed her arguments before the trial judge in a way that extended the width of some of the allegations in the statement of case, particularly under sub-para (e). At the trial she submitted that a teacher in Mr Harding’s position had a duty to take reasonable care of the boys within his group and to report any incident he was aware of that had caused injury or might cause injury to any of these boys. She posed the question “Why should Mr Harding’s duty to report his own harmful activities be a lesser duty than his duty to report activities of other members of staff?” In this context she emphasised Mr Harding’s pastoral role as the boys’ head of year at all material times.

The judge held that it was the nature of what was done in this case that it was a secret enterprise. Except in the case of physical harm it was not possible to go and report something. It seemed to him that it was artificial for a teacher like Mr Harding to report to his employers that he was about to strip a boy naked or to masturbate him. The grooming was part and parcel of the process of child abuse, and acts preparatory to abuse were not actionable in themselves. He therefore rejected Ms Gumbel’s submissions. His overall conclusion was that the defendant owed no vicarious duty that was independent of the allegations of intentional trespass to the person, in respect of which any claim was statute barred.

He also held in Y’s case that because the relevant sexual acts took place off the school premises they occurred outside the course of Mr Harding’s employment, and that vicarious liability would not have attached to the defendant in Y’s case in any event.

From that decision both claimants appealed with the permission of the judge.