Lister and Others v Hesley Hall Ltd

[2001] UKHL 22

Case details

Case citations
[2001] UKHL 22 · [2002] 1 AC 215 · [2001] 2 WLR 1311 · [2001] ICR 665
Court
House of Lords
Judgment date
3 May 2001
Source judgment

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Subjects
Tort Vicarious liability Employment law
Keywords
vicarious liability close connection test Salmond test sexual abuse entrusted duty overrule Trotman Morris v Martin Bazley v Curry
Outcome
appeal allowed
Judicial consideration

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Summary

It is not correct that employers can never be vicariously liable for deliberate wrongdoing by employees; rather, an employer is vicariously liable where the employee's torts are so closely connected with duties entrusted to him that imposing liability is fair and just.

The relevant inquiry asks whether the wrongful acts were an incident of the service entrusted to the employee, looking at duties, time, place and the relationship of trust, not merely whether employment provided an opportunity.

Abstract

The appellants were former boarding pupils sexually abused by the warden of their boarding house. The employer company ran the house and had entrusted the warden with the care and supervision of the boys. The claim at trial raised negligence and vicarious liability. The trial judge found for the plaintiffs on vicarious liability for certain failures to report, but not for the sexual assaults.

The Court of Appeal allowed the employer's appeal on vicarious liability. The House of Lords granted leave and considered whether the employer could be vicariously liable for the warden's sexual assaults and whether the Court of Appeal in [1999] LGR 584 (Trotman) stated the law correctly.

The central issue was whether the warden's torts were so closely connected to his employment duties that it was fair to impose vicarious liability on the employer.

Held

(1) The appeal is allowed. Judgment on liability is entered for the appellants and damages are to be assessed. (see para [30]). (2) The Court overrules the approach in [1999] LGR 584 to the extent it treated sexual abuse as necessarily outside the course of employment. The decisive inquiry is the closeness of the connection between the employee's duties and his wrongful acts (paras [21]–[26]; [49]–[51]). (3) Salmond's two-limb formulation remains a useful guide but must be applied by focussing on the relevant duties entrusted to the employee. The second limb must be applied so as to identify whether the wrongful act was an instrumentality or mode of executing the employment entrusted (paras [15]–[19]; [36]–[39]; [69]). (4) Factors relevant to the closeness of connection include the nature of the employee's duty, the place and time of the torts, whether the employee had special authority or trust, and whether the wrongful acts were incident to the performance of the employer's enterprise (paras [42]–[46]; [48]; [65]–[66]). (5) Applying this test to the facts, the warden had been entrusted with the boys' care and had close personal access and authority. The sexual abuses were inextricably interwoven with his duties and occurred in the time and place of his employment. The connection is sufficiently close to impose vicarious liability (paras [27]–[30]; [50]–[51]; [82]). (6) It was unnecessary to decide whether vicarious liability could be founded on the warden's failure to report his conduct. That issue is left open for other cases (paras [28]–[29]). (7) Order: appeal allowed; judgment on liability entered for the appellants; damages to be assessed (para [30]).

Appellate history

  • House of Lords Allowed the appeal and entered judgment for the appellants on liability; damages to be assessed (3 May 2001).
  • Court of Appeal Allowed the employers' appeal and set aside the County Court finding of vicarious liability (reported as [1999] LGR 584 in argument).
  • County Court (Dewsbury) Judge Walker found vicarious liability in part and entered judgment for the claimants on liability with assessment of damages to follow; leave to appeal was given.

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