I HAVE written before about the legal doctrine known as ‘vicarious liability’.

These are cases usually taken against employers, where it is not the employer, but the employee who has carried out a negligent act or what is known legally as a tort in the course of his employment.

The main reason why such a doctrine has developed is because employers have deeper pockets than employees. It is also the case that employers are in most cases, covered by policies of insurance which can meet claims.

It is rarely sensible for someone to take legal proceedings against an individual for compensation for negligence, without ensuring that that person either has compensation themselves or that they were acting in the course of employment.

There are also good public policy reasons why this system is fair. To succeed, it needs to be shown that the activity carried out by the employee is in the course of their employment and the employee will to a greater or lesser degree, have been under the control of the employer.

This whole issue was considered by the Court of Appeal in a case called NA, in which a woman, who when she was a child, was placed in the care of foster parents, one of whom went on to physically and sexually abuse her. The issue was whether or not the woman could sue the local authority who placed her with the foster parents.

There would have been a direct case of negligence against the local authority if they had not carried fostering checks or failed to make visits and ongoing checks of the foster parents, or that they knew of the abuse and failed to do anything. That was not the issue in this case.

The issue was vicarious liability and the claimant sought compensation against the local authority on the grounds that the local authority were effectively the employer of the foster parents and could be held responsible for what the foster parent did.

The Court of Appeal voted unanimously against the claimant. The court held that the relationship between the council (Nottinghamshire) and the foster parent was not sufficiently akin to employment.

The local authority had a supervisory duty and a regulatory function over the foster placement, but the essence of the arrangement was that the child was placed with the foster parents to live with them as a member of their family and the day to day life is in the charge of the foster parents and not the local authority.

The court agreed that the law of negligence improves the chances of the safeguard duties being rigorously maintained and that was a good thing.

The court accepted, however, that even proper care on the part of the local authority cannot always prevent harm coming to the child from the foster parents.

In the absence of negligence which I have referred to above, imposing a vicarious liability on the local authority “would be likely to provoke the channelling of even more of the local authority’s scarce resources in attempting to ensure that nothing went wrong, and if such were possible into insuring against potential liability”.

The court was mindful that if the law found against the local authority, it would lead to defensive practices in relation to the placement of children and the local authorities being more cautious about taking risks of placing children with foster parents and leaving children in local authority-run homes. There would be hundreds of children who might be better placed with appropriate foster parents.