Lister and Others v Hesley Hall Ltd

An employer may be vicariously liable for an employee’s deliberate and criminal wrongdoing. The decisive question is whether the tort was so closely connected with the employee’s duties that it is fair and just to impose liability.

The nature of the employment must be viewed broadly and in context. Liability does not depend on describing the wrongdoing as an unauthorised mode of an authorised act. Nor is liability necessarily defeated because the employee acted for personal gratification, contrary to instructions or in negation of an entrusted duty.

Employment which merely provides an opportunity to commit the tort is insufficient. A close connection may arise where an institution entrusts vulnerable persons to an employee whose authority, duties and proximity enable the employee to abuse the very position assigned to him.

Lister and Others v Hesley Hall Ltd concerned boys who were repeatedly sexually abused by the warden of a residential boarding house owned and managed by the respondent company. The company had entrusted the warden with the boys’ day-to-day care, discipline and supervision. The company’s own negligence was no longer alleged.

The Dewsbury County Court considered itself bound by Trotman v North Yorkshire County Council [1999] LGR 584 to reject vicarious liability for the assaults themselves. It nevertheless imposed liability for the warden’s failure to report his intentions and conduct. The Court of Appeal allowed the company’s appeal, holding that failure to report conduct outside the course of employment could not itself fall within that course: The Times, 13 October 1999.

The central issue before the House was whether the sexual abuse was sufficiently connected with the warden’s employment to make the company vicariously liable.

1. Appeal allowed unanimously. Lord Steyn delivered the leading speech. Lord Hutton agreed with it, and Lord Hobhouse agreed both with Lord Steyn’s reasons and for additional reasons of his own. Lord Clyde and Lord Millett reached the same disposition. Judgment on liability was entered for the appellants, with damages to be assessed.

2. Per Lord Steyn, the governing question was whether the employee’s torts were so closely connected with his employment that it was fair and just to hold the employer vicariously liable. Salmond’s formulation remained a useful guide, but it required attention to the connection between authorised duties and the wrongdoing. The employee’s task had to be viewed broadly rather than dissected into isolated activities.

3. Deliberate, criminal or self-serving conduct was not automatically outside the course of employment. Lloyd v Grace, Smith & Co [1912] AC 716 established that conduct for an employee’s own benefit could attract liability. Morris v C W Martin & Sons Ltd [1966] 1 QB 716 was authority of general application: an employer could be liable where the employee entrusted with custody abused that position by intentional wrongdoing.

4. The employment must provide more than a mere opportunity to commit the tort. Here the company had entrusted the boys’ care to the warden. His authority, continuous proximity and responsibility for their welfare created a very close connection between the employment and the abuse. The abuse was inextricably interwoven with the performance of his duties. Lord Clyde and Lord Millett likewise emphasised that the assaults were committed by the very employee to whom the boys had been entrusted.

5. Trotman v North Yorkshire County Council [1999] LGR 584 was overruled. Its narrow focus on whether sexual assault could be described as an unauthorised mode of teaching duties obscured the proper inquiry. It also erred by treating the principles in Morris v C W Martin & Sons Ltd as confined to bailment.

6. The primary ground made it unnecessary to decide whether liability could independently rest on the warden’s failure to report his own intentions or abuse. Lord Steyn left that question open. Lord Hobhouse considered a failure to report harm capable in principle of attracting liability, while Lord Millett regarded reliance on a duty to report the abuser’s own wrongdoing as artificial and expressed no concluded view on whether such a duty existed.

1. House of Lords: Allowed the appellants’ appeal unanimously, overruled Trotman v North Yorkshire County Council [1999] LGR 584, entered judgment on liability for the appellants and directed that damages be assessed.
2. Court of Appeal: Allowed the employer’s appeal and rejected liability based on the warden’s failure to report his own wrongful conduct: The Times, 13 October 1999.
3. Dewsbury County Court: Dismissed the allegation of direct negligence and, following Trotman v North Yorkshire County Council [1999] LGR 584, rejected liability for the assaults themselves. It nevertheless entered judgment for the claimants based on the warden’s failure to report the abuse and ordered damages to be assessed.