Armes v Nottinghamshire County Council
Citations:  UKSC 60;  AC 355;  3 WLR 1000;  1 All ER 1;  PTSR 1382;  1 FLR 329.
The claimant was a foster child who suffered sexual and physical abuse by their foster carers. The claimant had been placed in the care of the foster parents by the local authority. The claimant sued the local authority, on two grounds. The first was that the local authority was personally liable under a non-delegable duty for failing to keep her safe. The second was that the local authority was vicariously liable for the torts committed by the foster parents.
- Does a local authority owe a non-delegable duty to keep the claimant safe while in foster care?
- Can a local authority be vicariously liable for torts committed by foster parents?
The Supreme Court held in favour of the claimant. They rejected the contention that the local authority had a non-delegable duty in this case. However, the Supreme Court accepted that the local authority was vicariously liable for the foster parents’ torts.
This Case is Authority For…
Non-Delegable Duties of Care
In non-delegable duty cases, the claimant must first show that the defendant was personally under a relevant duty. They must then show that this duty was delegated.
In this case, the relevant statutory provisions did not require the local authority to look after the children. Instead, they merely required the authority to place the children in care and ensure that the premises were suitable. As such, none of the local authority’s duties had been delegated to the foster parents.
The Supreme Court also noted that the courts should be wary of creating non-delegable duties which put the defendant in a conflict of interest.
In this case, a non-delegable duty would give rise to a conflict between a child’s best interests and the local authority’s need to minimise liability risk. This is because it would deter local authorities from outsourcing care, even to the child’s own blood relatives.
Lord Reed added that a non-delegable duty is breached even if the person the duty is delegated to acts deliberately. Non-delegable duties can be breached by torts other than negligence, therefore.
The Supreme Court identified the following as relevant to whether the tortfeasor is an integral part of the defendant’s business:
- Whether the defendant can (in theory or practice) exercise powers of approval, inspection and supervision which have no parallel in ordinary relationships;
- Whether the defendant trains or pays the tortfeasor (by way of wage, allowance or some other arrangement);
- Whether the defendant had a significant degree of control over how the primary tortfeasor exercised their duties. This can be micro- or macro-level control;
- Whether the class of persons to whom the primary tortfeasor belongs generally have insufficient means to pay damages.
Lord Reed held that a relationship increases the risk of a tort where, for example, it renders the claimant vulnerable to abuse. This might be the case if the tortfeasor is placed in a position of authority and trust over the claimant, and complete supervision by the defendant is impossible.
Lord Reed argued, obiter, that parents and others in similar positions do not owe a non-delegable duty to ensure others care for their children. Rather, they owe an ordinary, delegable duty: they only need to take reasonable steps to select an appropriate carer.
Lord Hughes (dissenting) argued that this case’s conclusions on vicarious liability are too broad. In particular, he argued that they would also apply to cases where the local authority places children with blood-relatives. He thought that this would be undesirable, since it would discourage such placements and increase litigation in the family courts.
However, the relationship between the local authority and blood-relatives is different. Blood relatives will usually not be paid or trained by the local authority. They may also have a right to see the child and may be solely motivated by personal reasons. Therefore, it may be more difficult to describe them as an integral part of a local authorities’ business.