The Court of Appeal has given its judgment in NA v Nottinghamshire County Council (2015). The case concerned an appeal by the claimant who was both sexually and physically assaulted by their foster parents. The court at first instance found that there had been no negligence on the part of the social workers and that it would be against public policy to impose such a non-delegable duty of care.
The Court of Appeal rejected the appeal for three distinct reasons:
- 1. Lord Justice Tomlinson found that the local authority had insufficient control over the foster parents and their actions for the relationship to be considered parallel to employment and thus being vicariously liable.
- Burnett LJ came to the same conclusion but via a different angle. Burnett LJ found that the assault of the claimant did not constitute a breach of a non-delegable duty of care as non-delegable duties are imposed to cover negligent acts. Assaults or other criminal acts would be dealt with through vicarious liability. If an assault was capable of breaching a non-delegable duty of care, this may widen the duty to such an extent as to impose strict liability on local authorities.
- Lady Justice Black also took a different angle in agreeing that the imposition of a non-delegable duty would be contrary to public policy. The purpose of foster care is to comply with the duty of care that the local authority cannot itself carry out. This is a duty that can only be met by delegating it to others. If a local authority were not able to delegate its duty to foster carers, then neither could they delegate it by placing them with relatives or even their parents.
This decision is welcomed by local authorities in clarifying both the law and limiting liability for breach of a non-delegable duty of care.