Lister and Others v. Hesley Hall Limited

The House held that an employer may be vicariously liable for the intentional sexual torts of an employee where those torts are sufficiently closely connected with the employee's duties. The court applied and developed the traditional Salmond formulation by focussing on the closeness of the connection between the nature of the employment and the wrongful acts rather than treating intentional sexual wrongdoing as inherently outside the course of employment. The House overruled the Court of Appeal decision in Trotman v North Yorkshire County Council [1999] LGR 584 on the point, endorsed the utility of the Canadian "close connection" approach (in particular Bazley v Curry) as persuasive guidance, and entered judgment for the appellants on liability to be followed by assessment of damages.

The appellants were former resident boys of a boarding annex (Axeholme House) owned and run by Hesley Hall Limited. Between 1979 and 1982 the warden of the house, employed by the respondents to care for and supervise vulnerable boys, systematically sexually abused the appellants. The appellants brought personal injury claims seeking damages against the employers, advancing negligence and vicarious liability heads. The trial judge dismissed the negligence claim but, constrained by the Court of Appeal authority in Trotman, initially rejected vicarious liability for the sexual assaults though found liability for a failure to report. The Court of Appeal allowed the employers' appeal on vicarious liability. The appellants obtained leave to appeal to the House of Lords.

The House framed the issues as (i) whether as a matter of legal principle employers could be vicariously liable for the sexual torts of staff entrusted with care of children and, if so, (ii) whether liability could rest alternatively on the employee's failure to report his conduct. The Lords examined the Salmond test and earlier authorities (including Lloyd v Grace, Morris v C W Martin, Photo Production v Securicor and Racz v Home Office), and considered the Canadian Supreme Court decisions (notably Bazley v Curry and Jacobi v Griffiths) which articulated a "close connection" test.

The House concluded the correct approach was to ask whether the employee's wrongful acts were so closely connected with his duties that it was fair and just to hold the employer vicariously liable. Applying that test, the court found the warden's sexual abuse was inextricably interwoven with his duties of caring for and supervising the boys in a residential setting and therefore sufficiently closely connected with his employment to attract vicarious liability. The House allowed the appeal and ordered judgment on liability in favour of the appellants; damages were to be assessed. The court did not finally decide the alternative failure-to-report argument.

Appeal allowed. The House held that the employers were vicariously liable for the warden's sexual assaults because the wrongful acts were so closely connected with the duties entrusted to him (care and supervision of vulnerable boys in a boarding house) that it was fair and just to impose liability. The House overruled the narrower approach in Trotman and applied a "close connection" analysis, endorsing relevant authorities (including Bazley v Curry) as persuasive.

Trial at Dewsbury County Court before Judge Walker (judgment 25 February 1999): negligence claim dismissed; vicarious liability initially rejected on authority of Trotman but some liability on a failure-to-report theory was found. Court of Appeal (judgments delivered 7 October 1999) allowed the employers' appeal and set aside liability for the sexual assaults (relying on Trotman v North Yorkshire County Council [1999] LGR 584). Leave to appeal to the House of Lords was granted and the House allowed the appellants' appeal [2001] UKHL 22.