Is a school responsible for assault on foreign expedition?

26 March 2012 by Caroline Cross

XVW and YZA v Gravesend Grammar School for Girls and Adventure Lifesigns PLC [2012] EWHC 575 (QB) – read judgment

In 2005 a group of schoolgirls were taken on a school trip to Belize. While working on a resort, three girls, aged between 15 and 17, were violently raped by the manager of the site.

The question before the High Court was this: were the school or travel company responsible for the actions of someone they had not employed, abroad, on a school expedition where decisions had to be made about unforeseen contingencies when the party had arrived at their destination?

Background facts

The school had arranged an expedition through the travel company ‘ALS’. The twelve pupils were accompanied by a teacher and two experienced employees of the travel company. The group initially arrived in Mexico but could not proceed with the itinerary because of a hurricane. The teacher and travel guides, in looking for alternative itineraries, were recommended a project called Maya Walks, run by Jimmy Juan and his son Aaron. It was agreed that the group would help construct buildings at the farm resort owned by Jimmy and Aaron and in exchange they received free accommodation.

Each day Aaron Juan would outline the work programme for the group before leaving them to return to his day job of running tours for tourists. He would then return in the evenings to inspect the work. He also joined the girls in their social activities, including taking them swimming and to a bar, where he bought drinks for the girls and danced with them. On the night of the rapes, Mr Juan took alcohol to the hut where the Claimants and 3 other girls were staying, before returning to his own sleeping quarters nearby. However, when two girls returned from the toilet, he followed them into the hut. The teacher and travel guides were asleep at the time approximately 20-25 metres away. Aaron then initiated a game of ‘spin the bottle’ before violently raping the two Claimants, known by the pseudonyms Mary and Jane, and a third girl. Criminal charges were brought against him, but were dropped because the rape victims were too traumatised to give evidence.

The law

The legal issues are more complex, raising once again the knotty question of the scope of vicarious liability: who owed the Claimants a duty of care, what was the scope of the duty and was the duty breached? The Claimants argued that, while Aaron Juan was not an employee of either Defendant, he was recruited as part of the leadership team and entrusted with supervision of the girls. The Claimants argued that the school was directly liable in that it failed to ensure the trip was appropriately supervised and organised. Further, the Claimants argued that the travel company was also directly liable and vicariously liable for their employees and Aaron Juan, and also had a contractual duty to the Claimants. While the school had assumed responsibility for the safety of the pupils, the travel company owed a duty of travel leaders holding out special expertise in the area.

The Claimants alleged that the school and travel company had breached their duty because they failed to assess Aaron Juan as a risk and protect the Claimants from the foreseeable risk he presented. No security checks were done on Aaron Juan, and the Defendants failed to notice and act upon his inappropriate behaviour, such as buying alcohol for the girls and his lewd comments and actions whilst with the girls in the swimming pool. The Defendants, it was argued, had also placed trust in Aaron Juan by treating him as a group leader and encouraging the girls to do likewise, notwithstanding the warning signs to the contrary.

The Court’s judgment

The case was heard in February 2012 before Mr Justice Mackay. He considered the test for vicarious liability outlined in Lister v Lesley Hall Limited [2002] 1 AC 215, namely whether the torts of the employee were so closely connected to his employment that it would be fair and just to hold the employer vicariously liable. He held that vicarious liability did not apply to the relationship between Aaron Juan and the Defendants. While Aaron was the manager of the site and had allocated the work, the girls carried out the work under the supervision of the defendant leaders. Further, during the visit to the pool and the bar, the group had remained under the leaders’ direct supervision.

In terms of direct liability of the school, the judge held that the school had not breached its duty in sending only one, as opposed to two teachers, contrary to good practice guidance at the time. He concluded that the difficulties were not caused by the absence of a second teacher, and the presence of two guides as opposed to one was a positive bonus.

Mr Justice Mackay then examined the existence and scope of the duty of care. The defendants accepted they had a duty to take reasonable care for the safety of the pupils as would be taken by a reasonably careful parent. As to the scope of the duty, the judge considered X and Y v LB Hounslow [2009] EWCA Civ 286 (and see  my post) , where the Court of Appeal held that for the defendant to be held responsible for the criminal acts of a third party, it must be the case that “the situation is one where it is readily understandable that the law should regard the defendant as under a responsibility to take care to protect the claimant from the risk “. Mr Justice Mackay noted that this was no different from the tripartite test outlined in Caparo v Dickman [1992] AC 605.

The Claimants argued that Aaron’s behaviour put the leaders on notice that he was “grooming” the girls. Further, there was a foreseeable risk of sexual assault of some kind.

The judge held that the leaders were not aware of the comments Aaron made in the swimming pool. Further, the checks carried out were adequate: there was no indication that, had any further checks taken place, they would have shown that he was a risk to the girls. He concluded:

This party was continuously supervised by three highly responsible and experienced adults. Short of posting a guard on the door of each cabana [hut], or instituting some system of watch-keeping, there would have been no way of defeating Aaron’s assault on these girls… It would not be fair, just and reasonable to define the scope of their duties so as to require them to have taken those or any other precautions that night.

I find that the checks made were reasonable and proportionate and that the leaders of this expedition were not given any reason to foresee this terrible event. The defendants did not breach their respective duties of care to these claimants who were the victims of an unscrupulous, determined and skilful attacker. I regret I must therefore dismiss these claims.” [paras. 71-72]

Comment

This case is one of a number of recent decisions in relation to schools’ responsibility of schools to take care of children who are their pupils. On 9 March 2012 the Court of Appeal handed down judgment in the case of Woodland v Essex County Council [2012] EWCA Civ 239. The claimant was a pupil at a school for which the local authority was responsible. She attended a swimming lesson arranged by the school at a swimming pool operated by another local authority. The lesson was supervised by a lifeguard and swimming teacher who were employed by a company providing the lessons. During the lesson the claimant sustained a hypoxic brain injury. The issue was whether her school owed the claimant a personal non-delegable duty of care: in essence, the claimant was seeking an extension of the law on the scope of school’s responsibilities for their pupils.

The claim was dismissed at first instance, and the Court of Appeal (Laws LJ dissenting) upheld the decision. The Court held that it was not open to them to find that there was a relevant non-delegable duty of care which would lead to liability of the local authority in the event of negligence being found by the provider of the swimming lessons, the lifeguard or the swimming teacher. Nothing had been placed before the court to justify such an extension of the existing law. Referring to the Caparo test, the Court concluded that it would not be fair, just or reasonable to impose such a duty.

The courts clearly are loath to broaden the scope of the law in this area. It is notable that the Court in Woodland felt that any extension of the law would be a matter for the Supreme Court. Regular readers of the blog will recall that X and Y v LB Hounslow (above) was appealed to the European Court of Human Rights (Application no. 32666/10 by X,Y and Z against the United Kingdom) as permission to appeal to the House of Lords was refused. That case was brought against the local authority for failure to remove vulnerable adults from their flat, such that they were subject to a violent and sustained attack by a group of teenagers. While the claimants won at first instance, the decision was overturned by the Court of Appeal. However, while awaiting a hearing at the European Court of Human Rights, the case was settled by the UK Government (see the report here). As such, we are still awaiting a ruling that might determine the scope of vicarious liability.

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