Lister v Hesley Hall Ltd

Lister v Hesley Hall Ltd

Court Date decided Citation(s)

House of Lords 3 May 2001 [2001] UKHL 22 Keywords

Vicarious liability, course of employment, close connection Lister v Hesley Hall Ltd [2001] UKHL 22 is an English tort law case, creating a new precedent for finding where an employer is vicariously liable for the torts of their employees. Prior to this decision, it had been found that sexual abuse by employees of others could not be seen as in the course of their employment, precluding recovery from the employer.[1] The majority of the House of Lords however overruled the Court of Appeal, and these earlier decisions, establishing that the "relative closeness" connecting the tort and the nature of an individual's employment established liability.[2]

A boarding house (Axeholme House) for Wilsic Hall School, in Doncaster was opened in 1979; the principal students to live there having behavioural and emotional difficulties.[3] The claimants in the instant case had resided there between the years 1979 to 1982, being aged 12 to 15 during this time, under the care of a warden, who was in charge of maintaining discipline and the running of the house. The warden lived at the house also, with his disabled wife, and together they were the only two members of staff in the house.[4] His duties were ensuring order, in making sure the children went to bed, went to school, engaged in evening activities, and supervising other staff.[4] It had been alleged by some of the boys that the warden had sexually abused them, including gifting them unwarranted surprises, and taking trips alone with them. A

he cited a recent Canadian case[8]. which had imposed liability for intentional torts. But the present cases clearly fall on the side of vicarious liability. rather than using previous formulations: "(1) a wrongful act authorised by the master.[6] Judgment T v North Yorkshire CC. or (2) a wrongful and unauthorised mode of doing some act authorised by the master. it is unnecessary to express views on the full range of policy considerations examined in those decisions Employing the traditional methodology of English law. I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. creating a new test of 'close connection'. with Lord Steyn making the leading judgment. After all. had found that a headmaster's sexual abuse of a child on a field trip was not within the scope of his employment. The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. resulting in the warden being sentenced to seven years imprisonment[5]. the victims brought an action for personal injury against the employers. provided they are so connected with acts which he has authorised that they may rightly be regarded as modes-although improper modes-of doing them. On the facts of the case the answer is yes. and not one of service at all. Here. even if the relation between the parties was merely one of agency. but was reversed. as opposed to the employer of an independent contractor. It is not necessary to embark on a detailed examination of the development of the modern principle of vicarious liability. Wherever such problems are considered in future in the common law world these judgments will be the starting point.. I have been greatly assisted by the luminous and illuminating judgments of the Canadian Supreme Court in Bazley v Curry. a previous criterion by which an employer could be found vicariously liable.[7] This was the view taken prior to the House of Lords appeal. Matters of degree arise. It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case. and Jacobi v Griffiths[10]. alleging they were vicariously liable. is liable even for acts which he has not authorised. On the other hand. the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House.[11] ” This decision is significant in the Lords' assessment of the Salmond test for vicarious liability as inadequate. But it is necessary to ” . It was summarised as such: “ For nearly a century English judges have adopted Salmond's statement of the applicable test as correct.criminal investigation took place some ten years later. decided just two years earlier by the Court of Appeal. . following this."[9] John William Salmond's formulation of where an employer would be liable “ My Lords. But a master.

Of importance is that the employment status of an individual cannot merely have provided the employee with an opportunity to commit a tort. stabbed a patron of the night club he worked at. the employee pocketing the difference. involving deceit and theft. A preoccupation with conceptualistic reasoning may lead to the absurd conclusion that there can only be vicarious liability if the bank carries on business in defrauding its customers.[13] Lord Clyde stated three principles in his judgment which should be considered.face up to the way in which the law of vicarious liability sometimes may embrace intentional wrongdoing by an employee. the result might at first glance be thought to be that a bank is not liable to a customer where a bank employee defrauds a customer by giving him only half the foreign exchange which he paid for. If one mechanically applies Salmond's test. as restated in the subsequent case of Dubai Aluminium Co Ltd v Salaam[16]. .[12] This new test of close connection has been described as 'fairer'. Developments Following this expansion of liability. Dubai Aluminium Co Ltd v Salaam. where it is outside of their duties or authority to make certain representations.[18] established liability for fraud of employees. and of greater use to claimants.[17] vicarious liability was found where a bouncer. Ideas divorced from reality have never held much attraction for judges steeped in the tradition that their task is to deliver principled but practical justice. intent on revenge. employers have been found liable in subsequent cases for intentional torts of their employees. In Mattis v Pollock.[14] There must be a connection between the duties of an employee and the tort committed[15] .

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