It is known in legal terms as vicarious liability. Commonly it exists in the employment relationship. A worker does something wrong, is negligent and as a result someone is injured. The company will be responsible for the employees conduct and  will compensate (through its insurers) the injured person. There are good reasons for this. The company exercises control over the employee who is working for the company’s benefit. The company will have insurance whereas the individual employee who was negligent will not have insurance or the means to be able to compensate an injured person. But what of the situation where a foster carer abuses a child placed in their care? should the Council be vicariously liable for the foster carers conduct? Councils exert and have less control over a foster carer than an employer has over an employee. This was the question that the Supreme Court had to consider recently in the case of Armes v Nottinghamshire County Council [2017] UKSC 60.

What sort of relationship that has to exist between an individual and a defendant before the defendant can be made vicariously liable for the conduct of the individual. In the Armes v Nottinghamshire County Council five Supreme Court Judges had to decide whether the County Council was vicariously liable for the abuse of children carried out by foster Parents on  children who had been taken into care by the local authority. The abuse was carried out between the periods 1985 and 1988. Four Supreme Court judges agreed that the County Council were vicariously liable, one disagreed.

It is easy to appreciate the principle of vicarious liability in a case where a defendant company is liable for the negligence of an employee which causes somebody to have an accident and sustain an injury. The company will have insurance for such claims; the negligent employee will be acting under the company’s control and instructions carrying out work for the benefit of the company; and the company will have carried out risk assessments and have policies and procedures in place which the employee will be required to carry out. But it is more difficult question to decide whether a local authority should be responsible for the actions of foster parents with whom children are places into care.

In a typical employer and employee relationship there are five factors the courts consider in order the determine whether it is reasonable to impose a vicarious liability. Other relationships which have the same incidents can be treated similarly. The five factors are: (i) the employee=r is more likely to have the means to compensate the victim than the employe and can be expected to have insurance; (ii) The tort (eg negligent act) will have been comitted as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employe; and (v) the employee will, to a greater or lesser degree, have been under control of the employer.

Applying the five factors to the Armes case it was noted that the relevant activity of the local authority in this instance was the cade of children who had been committed to their care. They recruited, selected and trained persons who were willing to accommodate, maintain and look after the children in their homes as foster parents. They inspected homes and paid allowances. The foster parents were expected to carry out their fostering in cooperation with local authority social workers. The foster parents could not be regarded as carrying on an independent business of their own. The foster provided care to the child as an integral part of the local; authority’s organisation of its child car services.

Considering the issue of risk creation it is relevant to the imposition of vicarious liability that a particular risk is inherent in that choice. If a local authority considers it advantageous to place child in foster care, notwithstanding the inherent risk that some children may be abused, it may be considered fair that they should compensate the unfortunate chiildren for whom that risk materialises.

the local authority exercises powers of approval, inspection, supervision and removal without any parallel in ordinary family life. By virtue of these powers, the local authority exercised a significant degree of control over both what the foster parents did and how they did it, in order that the children’s needs were met.

Most foster parents have insufficient means ti be able to meet a substantial award of damaged and the local authorities which engage them can more easily compensate the victim of injuries which are often serious and long lasting.

Consideration of all these actors pointed towards the imposition of vicarious liability. There was a dissenting judgement and it is also worth nothing that the Court of Appeal had previously the dismissed the claim of vicarious liability. The imposition of a vicarious liability can involve difficult decisions. It is an area which was also considered last year by the Supreme Court in the case of Cox v Ministry of Justice [2016] UKSC  where the prison service was held vicariously liable for the act of a prisoner in the course of his work in a prison kitchen and a member of the prison staff was injured. These are cases which are breaking new ground in the area of vicarious liability and will be especially relevant for claimant’s who have a claim against maybe an uninsured defendant or a defendant with little assets where there is the possible involvement of another supervisory or controlling body or organisation.