ST v North Yorkshire County Council

Vicarious liability for an employee's sexual assault is not established merely because employment gave the employee access to the victim. The Salmond test asks whether the wrongful act was so connected with authorised duties that it was an unauthorised mode of performing them. Sexual assault by a teacher entrusted with a pupil's care is ordinarily an independent act of self-gratification, not a mode of supervising or caring for the pupil. The possibility of an unusual contrary case was left open. Bailment cases are distinct where the employer owes the claimant an independent duty and delegates its performance. Statutory discrimination decisions on the phrase course of employment do not govern common-law vicarious liability.

ST, a vulnerable pupil at a special school operated by North Yorkshire County Council, alleged that the deputy headmaster sexually assaulted him while supervising him during a school trip to Spain. The claim against the Council was pleaded solely in vicarious liability for the employee's trespass. No negligence or independent breach of duty by the Council was alleged.

On a preliminary issue, H.H. Judge Spittle in the Darlington County Court held that the Council was capable of being vicariously liable on the pleaded facts. The Council appealed. The central issue was whether the alleged assaults were improper modes of carrying out the deputy headmaster's authorised supervisory duties, or independent acts outside the course of employment.

The Court of Appeal unanimously allowed the appeal and dismissed the action. Butler-Sloss LJ delivered the leading judgment; Thorpe LJ agreed. Chadwick LJ agreed with the result and gave separate reasons.

1. Common-law test. Liability depends on whether the wrongful act was so connected with an authorised act that it could properly be regarded as an improper mode of performing it. An independent act outside the employment is not covered. The opportunity provided by employment is insufficient without a further nexus. The approach was illustrated by Dyer v Munday [1895] 1 QBD 742, Poland v John Parr and Sons [1927] 1 KBD 236, Vasey v Surrey Free Inns plc (CA Transcript 5 May 1995), and the contrasting decisions in Warren v Henlys Ltd [1948] 2 All E R 935 and Daniels v Whetstone Entertainments [1962] 2 Lloyds Rep 1.
2. Application. The deputy headmaster was employed to supervise the plaintiff's welfare. The alleged sexual assaults were acts of personal self-gratification and could not be regarded as an unauthorised mode of supervising or caring for him. Serious sexual misconduct by a teacher will ordinarily fall outside the employment, although the Court did not close the possibility of an exceptional case. Heasmans v Clarity Cleaning Co Ltd [1987] IRLR 286, Irving v Post Office [1987] IRLR 289 and Makanjuola v Commissioner of Police for the Metropolis [1990] Admin L R 215 reinforced the distinction between opportunity and an act directed to the employment.
3. Bailment. Morris v C W Martin & Sons Ltd [1966] 1 QB 716 and Lloyd v Grace, Smith & Co [1912] AC 716 concerned cases where the employer or bailee owed the claimant an independent duty and delegated its performance. That reasoning did not extend beyond the bailment line of authority.
4. Statutory discrimination cases. Bracebridge Engineering Ltd v Darby [1990] IRLR 3 and Jones v Tower Boot Co Ltd [1997] 2 All ER 406 arose under the Sex Discrimination Act 1975 and Race Relations Act 1976. Their statutory treatment of course of employment could not determine the common-law issue.
5. Order. The order below was set aside. The action was dismissed. There was no order as to costs in the court below, and the Legal Aid Board was directed to pay the respondent's appeal costs under section 18 of the Legal Aid Act, subject to legal aid taxation.

1. Court of Appeal (Civil Division): On 14 July 1998, allowed the Council's appeal, set aside the order below and dismissed the action.
2. Darlington County Court: On 12 August 1997, H.H. Judge Spittle held on a preliminary issue that the Council was capable of being vicariously liable on the pleaded facts.