LAW AND SOCIETY
Liability for the Acts of Others: Armes v Nottinghamshire CC and Some Comparative Observations Yen Jean Wee, University of Cambridge Introduction
Mohammad Madni (“Ng Huat Seng”).4
The recent decision of the UK Supreme Court (UKSC) in Armes v Nottinghamshire County Council1 (Armes) indicates just how far English law has come in imposing tortious liability on an individual or organisation for the acts of another. The troubling facts of Armes involved the physical and sexual abuse of a child (the claimant) by foster parents with whom the local authority had placed her while she was committed to its care. The UKSC held that the local authority was vicariously liable for the torts committed by the foster parents, but that it had not breached a non-delegable duty of care owed to the child. As Deakin has noted, this outcome would have been “inconceivable” less than two decades ago, given that the traditional model for vicarious liability revolved around an employer-employee relationship and imposed liability on employers for torts committed by employees in the course of their employment.2 Armes, by contrast, concerned a very different sort of a relationship, and is perhaps illustrative of the extent to which legal doctrines must evolve—sometimes beyond recognition—to deal with emerging problems. As Lord Phillips commented in Various Claimants v Catholic Child Welfare Society (Catholic Child Welfare Society), the law of vicarious liability is “on the move”.3
Armes v Nottinghamshire City Council
However, while this outcome certainly satisfies our instinctive sense that the local authority should be held responsible in some way for placing an already vulnerable child in such a position of exploitation, the route by which the UKSC reached this result warrants further examination. This article will begin by outlining the UKSC’s reasoning in relation to both vicarious liability and non-delegable duties, and then evaluate the two routes to liability, considering also the approaches taken by two other European jurisdictions – France and Germany. It will then compare English law with Singapore’s position, most recently articulated in Ng Huat Seng v Munib
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As already alluded to above, there were two separate issues for the UKSC to consider: (a) whether the local authority had breached a non-delegable duty of care to the claimant, and (b) whether the local authority was vicariously liable for the foster parents’ torts. Lord Reed, delivering the judgment of the majority, made it a point to emphasise that the two were “distinct legal doctrines with different incidents and different rationales”.5 On this ground, his Lordship rejected the view expressed by Burnett LJ in the Court of Appeal6 that, if vicarious liability is absent, the common law should not impose liability via non-delegable duties.7 This sounds a welcome note of caution against eliding the vicarious liability and non-delegable duties: liability for breach of the latter is based on the direct, primary liability of the local authority, while vicarious liability is not. Indeed, Lord Reed observed that there could not be “any rationale” for imposing vicarious liability on a defendant who was directly liable for the harm caused by the third party.8 As Giliker has argued, primary liability is inadequate to justify the imposition of vicarious liability: “[a]t best, it is a fiction, at worst misleading”.9 A. Non-Delegable Duties Taking the issues in the order in which the UKSC dealt with them, the court’s analysis of non-delegable duties will be considered first. Referring to Lord Sumption’s influential judgment in Woodland v Essex County Council,10 Lord Reed stated that this non-delegable duty 4 Ng Huat Seng v Munib Mohammad Madni [2017] SGCA 58. 5
Armes (op cit n 1) at [50].
6 NA v Nottinghamshire County Council [2015] EWCA Civ 1139; [2016] 2 WLR 1455.
1 Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 355.
7
op cit n 5.
8
ibid at [30].
2 S. Deakin, “Organisational Torts: Vicarious Liability versus Non-Delegable Duty” (2018) CLJ 15.
9 P. Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press, 2010) at 234.
3 Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 at [19].
10 Woodland v Essex County Council [2013] UKSC 66; [2014] AC 537.