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MXX v A Secondary School [2022] EWHC 2207 (QB) (on BAILII).
In 2014, one of the Defendant’s former pupils (“PXM”) undertook a Work Experience Placement (“WEP”) at the Defendant’s school. He was then 18 years old and attending college hoping to qualify as a Physical Education (“PE”) teacher. Attending a WEP was a compulsory part of his course.
The Defendant admitted that torts of assault and battery were committed by PXM against the Claimant, however the Court found that the entirety of the wrongdoing occurred many weeks after PXM’s relationship with the Defendant had ceased ([236]).
The Defendant did not admit that it was vicariously liable for any of the torts that may be proved to be committed by PXM. Vicarious liability was the sole basis of the claim made by MXX.
As PXM was neither an employee of the Defendant nor an independent contractor, the first question to address was whether he was in a relationship with the Defendant that was capable of giving rise to vicarious liability. Was he in a relationship with the Defendant that was “akin to that between an employer and an employee” ([177]).
The Court ultimately held that the relationship was not akin to employement (at [188]). The purpose of the WEP was for PXM to learn from the Defendant’s teachers. When viewed from the Defendant’s perspective it was an altruistic gesture. It cannot have been intended that the Defendant would derive benefit from the presence of PXM in any real sense, notwithstanding that PXM performed some minor ancillary tasks during the WEP. ([191]). The position was very different from that in Cox v Ministry of Justice where the prison derived real and identifiable benefit from the work of the prisoners in its kitchen, notwithstanding that there was also a benefit to the prisoners that was different in kind. ([194]).
The Court also found against the Claimant in respect of the ‘close connection’ test. The most that could be said about the relationship between the Defendant and PXM was that it provided an opportunity for PXM to meet the Claimant. ([243]). The Defendant did not did not afford PXM any opportunity to have any private interaction with the Claimant; he was never in fact alone with her during the WEP. The physical proximity and contact PXM had with the Claimant was only in connection with assisting her to play badminton in a public forum as part of a club with others; it had no private or intimate quality. Facebook, which became the means by which PXM communicated with the Claimant and was, over time, used to manipulate her, was nothing whatever to do with the Defendant’s school activities. The Defendant’s policies forbade contact via social media between PXM and the Claimant. There was in fact no social media contact between them while the WEP subsisted. On the balance of probabilities, the communications shown to be wrongful did not commence until at least several weeks after the placement had ended ([241]).
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