Since the broadcast of The Other Side of Jimmy Savile in October 2012 and the subsequent police investigation Operation Yewtree, the reporting of historic sexual and physical abuse allegations has increased markedly.
Many police services across the country and victims’ charities such as the National Association of People Abused in Childhood have reported a significant increase in calls in the last year. While much of the media coverage focuses on the celebrity aspect, the reality is that many of the new notifications do not arise out of entertainment industry settings but from a variety of locations and often schools.
Potential liability of schools
Civil claims for damages by former pupils can be brought in one of two ways. The most straightforward is for the complainant to allege that they were intentionally assaulted by a person for whom the school is vicariously liable.
Vicarious liability is the doctrine which holds an employer/principal responsible for the acts of their employee/agent. It is an evolving doctrine and its scope, in the area of historic abuse litigation, has been extended recently in two significant legal cases.
There are two stages when establishing vicarious liability. First, there must be a sufficiently close relationship between the abuser and the institution. Second, there must be a closeness of connection between that relationship and the abuser’s acts.
Formerly, to satisfy the first stage, actual employment was necessary. However, following the Court of Appeal’s decision in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust in 2012, it is now sufficient to show that the relationship is one that is “akin to employment”. The court will now look at the “overall character and context” of the relationship between an abuser and the organisation to determine whether vicarious liability could exist.
This represents a broadening of the scope of those people for whom an organisation can be vicariously liable. The boundaries of this have yet to be fully determined but potentially it could include those that volunteer to assist a school with activities but are not actually employed.
In relation to the second stage, courts have decided that vicarious liability attaches where there is a strong connection between what the employer is asking the employee to do and the wrongful act. Here, the employer has significantly increased the risk of harm by putting the employee in that position.
Previously, for example, abuse committed by a house warden but not by the school grounds man would be an act for which the school would be vicariously liable. The position today is not so clear.
The second route to bringing a claim is to allege institutional negligence on the part of the school for failing to prevent a child being abused, although this option is seldom used.
Inhibition and delay in speaking out about childhood abusive experiences are common and well-recognised by the courts. Limitation is the defence that operates to prevent litigants from bringing stale claims. The time period for a claimant to bring a claim does not begin to run until he or she is aged 18. Time will not run against a claimant who is under a disability, such as someone who is mentally ill.
In relation to sexual and physical abuse claims, the position is governed by the Limitation Act 1980. Under the act, a claimant is required to bring a claim within three years of their cause of action accruing or, if later, three years after the claimant knew or should have known they had a valid claim.
Recently the courts have generally found that the claimant’s date of knowledge should run from their 18th birthday, and consequently a claim should be initiated before a claimant’s 21st birthday. However, in the event that a claimant is late making a claim the court has a discretion to disapply the primary limitation period and let the claim proceed. The discretion is very wide. The central consideration is where the balance of prejudice lies and whether there can still be a fair trial with the time that has passed.
It is not uncommon to receive claims going back many decades with claimants now in late middle age claiming for abuse when they were at school.
Receiving an historic claim
Historic abuse claims do not resolve themselves quickly and there are several distinct stages to be gone through.
Claims for damages for historic abuse are met by a school or local authority’s public liability policy. The school’s insurers will then usually appoint a specialist firm of solicitors to deal with the matter on behalf of the school. Notification as soon as practicable to the relevant insurer is essential. Delayed or late notification can be a ground for an insurer to refuse indemnity.
For maintained schools, insurance is usually arranged through the relevant local authority’s insurance department and notification can be made through that office.
For independent schools, insurance will usually have been organised on an individual basis. There may have been a number of different insurers over the years and establishing who they were, whether they are still trading, or which office of a successor company should deal with the claim can be time-consuming.
The school’s insurance broker, if they are still trading, can assist in the search for the correct insurer or their successor. A broker may also be able to help in locating the documentation that evidences the school’s contract of insurance with a particular company. The existence of that documentation is essential for an insurer to accept that they were on cover for a specific date or period and the extent of the indemnity they will offer the school.
Documentation and evidence
Once a claim has been initiated, the school will receive requests for documents relating to the complainant(s), alleged abuser(s), and contact details of potential witnesses that will need to be produced within a fairly short timeframe.
If a claim is made, the effect on the reputation of the school is a substantial concern. Media coverage can come from a number of sources – claimant solicitors, the local or national press and, increasingly, social networking sites.
Some solicitors have the resources and expertise to assist a school in handling media communications. However, the involvement of a specialist public relations firm to provide crisis communications advice is sometimes also necessary. Essential considerations include identifying the sole spokesperson for the school, ensuring that all others concerned adhere to the idea that only one person speaks to the media, and identifying who in particular the school needs to communicate with about the claim or allegations.
Most historic claims have a considerable duration, particularly if they are proceeded by a criminal prosecution, and press statements that deal with the various developments and potential outcomes in a case should be prepared in advance.
While it is important not to scaremonger and acknowledge that schools are often pressed for resources, there are certain steps that are worth taking:
Make sure that you know your school’s history as thoroughly as possible.
Make sure you are aware of your school’s public liability insurance position.
Time spent now ensuring that the school has a complete public liability insurance history and being aware of any gaps can save much time in the unfortunate event you are presented with a claim.
Partner Michael Pether and solicitor Sarah Firth specialise in handling abuse and social care claims at Berrymans Lace Mawer LLP.