LISTER AND OTHERS V HESLEY HALL LIMITED [2001] UKHL 22
FACTS:-
The Claimants were residents of Axeholme House in Doncaster between 1979 and 1982 at the ages of 12 to 15 years. The company that owned the home employed Mr and Mrs Grain as warden and housekeeper to take care of the boys. The warden was responsible for day to day running of Axeholme House and for maintaining discipline. He supervised the boys when they were not at school. He administered pocket money, organised weekend leave, evening activities and supervised other staff.
Unbeknown to his employers, the warden systematically sexually abused the Claimant at the home. This took the form of mutual masturbation, oral sex and sometimes buggery. The abuse was preceded by grooming. The Claimants did not make any complaint at the time, but in the early 1990’s a police investigation led to criminal charges in the Crown Court and Mr Grain, the warden was sentenced to seven years imprisonment. In 1997, the Claimants brought claims against the employers for personal injury.
At trial, there were three Claimants. Their claims were advanced on two separate grounds. First it was alleged that the employers were negligent in their care selection and control of the warden. Secondly the Claimants alleged that the employers were vicariously liable for the torts committed by the warden.
The Court of Appeal had addressed a similar question in Trotman v North Yorkshire County Council [1999] LGR 584 and had found that there could be no vicarious liability in such circumstances. Therefore the trial judge felt compelled to conclude that the employers could not be held vicariously liable for the torts of the warden. On the other hand, he found that the employers were vicariously liable for the warden’s failure to report to his employers his intentions and the harmful consequences to the children. So judgment was entered against the Claimants on the issue of liability.
The employers appealed to the Court of Appeal. The Claimants did not cross appeal the judge’s decision that the employers were not negligent. The Court of Appeal was also bound by the decision in Trotman and so they allowed the appeal. The case then proceeded to the House of Lords.
HELD:-
Lord Steyn referred to two Canadian cases, Bazley v Curry (1999) 174 DL4
(4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71. The Supreme Court of Canada had enunciated a principle of “close connection” in examining whether it should hold an employer vicariously liable for the tortuous conduct of its employer, even though there was no fault. Salmond on Torts 1st ed (1907) said that a wrongful act was deemed to be done by a “servant” in the course of his employment if it was either a) a wrongful act authorised by the master or b) a wrongful or unauthorised mode of doing some act authorised by the master. Salmond had said in relation to (b) that a master was liable even for acts which he had not authorised, provided they were so connected with acts which he had authorised, that they might rightly be regarded as modes – although improper modes – of doing them.
In Lloyd v Grace, Smith & Co. [1912] AC 716 it was held that a firm of solicitors were vicariously liable for the dishonesty of their managing clerk who persuaded a client to transfer property to him. In Williams v A & W Hemphill Ltd 1966 SC (HL) 31 the driver of a lorry deviated substantially from his route. On the detour, an accident occurred owing to the fault of the driver. The House of Lords said that the presence of passengers, whom the servant was charged as a servant to drive to their ultimate destination made it impossible to say that the deviation was entirely for the servant’s purposes. Their presence and transport was a dominant purpose of the authorised journey. Therefore there was vicarious liability.
There was then the case of Morris v C W Morris & Sons Ltd. [1966] 1 QB 716. In that case an employee of a cleaning company stole a mink coat. The Court of Appeal held the cleaning company liable because the employee was acting in the scope or course of his employment.
In Racz v Home Office [1994] 2 AC 45 there was authority for the proposition that the Home Office might be vicariously liable for the acts of police officers which amounted to misfeasance in public office. In Rose v Plenty [1976] 1 WLR 141 the Court of Appeal held that a milkman who deliberately disobeyed his employers’ order not to allow children to help on his rounds did not go beyond his course of employment in allowing a child to help him. In that case, Lord Justice Scarman had said that the milkman had chosen to enlist the assistance of the Claimant (a child) and that was a mode, albeit a prohibited mode of doing the job that the milkman was employed to do.
Lord Steyn then considered the judgment of the Court of Appeal in the case of Trotman. This decision had been criticised by the Canadian Supreme Court in Bazley. McLachlin J had said that instead of describing the act of abuse in terms of the employee’s duties of supervising and caring for vulnerable students during a study trip abroad, the Court of Appeal cast it in terms unrelated to those duties. Important legal decisions should not turn on such semantics.
Lord Steyn looked at the judgment of Butler-Sloss LJ. He said that it appeared to indicate that there could not vicarious liability by an employer for a brutal assault, or serious sexual misconduct whatever the circumstances. The better approach would be to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort. Therefore the approach of the Court of Appeal in Trotman was incorrect. The Defendant in that case was responsible for the care of vulnerable children and employed the deputy headmaster to carry out that duty on its behalf. The sexual abuse took place while the employee was engaged in duties at the very time and place demanded by his employment. The connection between the employment and the torts was very close.
In this case, Lord Steyn was satisfied that the employers entrusted the care of the children in Axeholme House to the warden. The question was 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. On the facts of this case, the answer was yes.
It was not necessary to express a view on the alternative argument based on the employee’s alleged breach of duty to report his sexual intentions or the consequences of his misdeeds. However this line of argument might require further consideration. If an employee was aware of a physical injury sustained by a boy as a result of his conduct, it might be said to be part of his duties to report this fact to his employers. If that was so, why should the same not be true of psychological damage caused by the sexual abuse of a boy? In the present case, this did not need to be decided.
Lord Clyde discussed the problems with the doctrine of vicarious liability. A convenient starting was the exposition that could be found in Salmond and Heuston on Torts 21st edition Page 443. This was the classic statement of the concept. What had to be considered was the connection, if any, between the act in question and the employment. If there was a connection, then the closeness of that connection had to be considered. The sufficiency of the connection might be gauged by asking whether the wrongful actions could be seen as ways of carrying out the work which the employer had authorised.
Lord Clyde said that there were three matters that deserved consideration:-
Lord Clyde saw no reason for putting cases of sexual harassment or abuse in a special category of their own. He referred to the Canadian case of Bazley v Curry which concerned vicarious liability for acts of sexual abuse carried out by an employee of a children’s foundation. On the other hand in the other Canadian case of Jacobi v Griffiths the acts took place in the employee’s home outside working hours and away from the club, which was the principal place of employment. The club had provided an opportunity to establish a friendship with the children, but that did not constitute a sufficient connection.
In this case, the care and safekeeping of the boys had been entrusted to the Defendants and they had in turn entrusted their care and safekeeping, so far as the running of the boarding house was concerned, to the warden. The particular acts that the warden carried out on the boys had to be viewed in the context and the circumstances in which they occurred. Therefore the Defendants would be vicariously liable to the Claimants for the injury and damage which they suffered at the hands of the warden.
Lord Hutton agreed with the speech of Lord Steyn.
Lord Hobhouse said that the classes of persons that are in this type of special relationship to another human being included schools, prisons, hospitals and even, in relation to their visitors, occupiers of land.
Lord Hobhouse considered the case of Morris v C W Martin & Sons Limited (see above). Doing the opposite of what it was your duty to do was still a breach of that duty. The appreciation that there are duties involved was at the heart of the analysis and the identification of the criteria for the existence of vicarious liability. Whether or not some act came within the scope of the servant’s employment depended upon an identification of what duty the servant was employed by his employer to perform. If the act of the servant amounted to a failure to perform the duty, the act came within the scope of his employment and the employer was vicariously liable. If, on the other hand, the servant’s employment merely gave the servant the opportunity to do what he did without more, there would be no vicarious liability.
The correct approach was to ask what was the duty of the servant towards the Claimant which was broken by the servant and what was the contractual duty of the servant towards his employer?
The Claimants had sought to rely upon a failure by the warden to report to his employers what had happened and the psychological trauma being suffered by the Claimants. This was an artificial argument because it was premised upon the assumption that the warden’s breach of duty in abusing the Claimants was legally irrelevant. However it was part of both the duty of the carers towards the Claimants and of the warden towards his employers to report to them any incident which was relevant to the well being of the Claimants. Therefore the Court of Appeal was mistaken in not attaching more validity to this way of putting the Claimants’ case. There was a whole succession of breaches of duty by the warden. Lord Hobhouse gave the example of what would have happened, if the abuse had been carried out by a groundsman and the warden became aware of that. The employers might not be liable for what the groundsman did, but they would be liable for the warden’s failure to report the abuse. Therefore this kind of liability was in principle capable of existing.
Lord Hobhouse would allow the appeal by the Claimants.
Lord Millett considered the policy reasons behind the doctrine of vicarious liability and considered the various cases. It was no answer to say that the employee was guilty of intentional wrongdoing, or that his act was not merely tortuous but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer’s duty. The cases showed that where an employer undertook the care of a client’s property and entrusted the task to an employee who stole that property, the employer was vicariously liable.
The warden’s duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that was not in itself to make the school liable. The same would be true of a groundsman or the school porter. However the warden in this case was responsible for the care of the boys whom he assaulted.
Experience showed that in the case of boarding schools, prisons, nursing homes, old people’s homes, geriatric wards and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust.
Lord Millett would hold the school vicariously liable for the warden’s intentional assaults, not for his failure to perform his duties to take care of the boys. That was an artificial approach. The law was mature enough to hold an employer vicariously liable for deliberate, criminal wrongdoing without indulging in sophistry of this kind.
Lord Millett would also not base liability on the warden’s failure to report his own wrongdoing to his employer, an approach which he regarded as both artificial and unrealistic. Even if such a duty did exist, he would be inclined to think that it would be a duty owed exclusively to the employer and not a duty for breach of which the employer could be vicariously liable. The same reasoning would not apply to the duty to report the wrongdoing of fellow employees.
The appeal would be allowed.
FACTS:-
The Claimants were residents of Axeholme House in Doncaster between 1979 and 1982 at the ages of 12 to 15 years. The company that owned the home employed Mr and Mrs Grain as warden and housekeeper to take care of the boys. The warden was responsible for day to day running of Axeholme House and for maintaining discipline. He supervised the boys when they were not at school. He administered pocket money, organised weekend leave, evening activities and supervised other staff.
Unbeknown to his employers, the warden systematically sexually abused the Claimant at the home. This took the form of mutual masturbation, oral sex and sometimes buggery. The abuse was preceded by grooming. The Claimants did not make any complaint at the time, but in the early 1990’s a police investigation led to criminal charges in the Crown Court and Mr Grain, the warden was sentenced to seven years imprisonment. In 1997, the Claimants brought claims against the employers for personal injury.
At trial, there were three Claimants. Their claims were advanced on two separate grounds. First it was alleged that the employers were negligent in their care selection and control of the warden. Secondly the Claimants alleged that the employers were vicariously liable for the torts committed by the warden.
The Court of Appeal had addressed a similar question in Trotman v North Yorkshire County Council [1999] LGR 584 and had found that there could be no vicarious liability in such circumstances. Therefore the trial judge felt compelled to conclude that the employers could not be held vicariously liable for the torts of the warden. On the other hand, he found that the employers were vicariously liable for the warden’s failure to report to his employers his intentions and the harmful consequences to the children. So judgment was entered against the Claimants on the issue of liability.
The employers appealed to the Court of Appeal. The Claimants did not cross appeal the judge’s decision that the employers were not negligent. The Court of Appeal was also bound by the decision in Trotman and so they allowed the appeal. The case then proceeded to the House of Lords.
HELD:-
Lord Steyn referred to two Canadian cases, Bazley v Curry (1999) 174 DL4
(4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71. The Supreme Court of Canada had enunciated a principle of “close connection” in examining whether it should hold an employer vicariously liable for the tortuous conduct of its employer, even though there was no fault. Salmond on Torts 1st ed (1907) said that a wrongful act was deemed to be done by a “servant” in the course of his employment if it was either a) a wrongful act authorised by the master or b) a wrongful or unauthorised mode of doing some act authorised by the master. Salmond had said in relation to (b) that a master was liable even for acts which he had not authorised, provided they were so connected with acts which he had authorised, that they might rightly be regarded as modes – although improper modes – of doing them.
In Lloyd v Grace, Smith & Co. [1912] AC 716 it was held that a firm of solicitors were vicariously liable for the dishonesty of their managing clerk who persuaded a client to transfer property to him. In Williams v A & W Hemphill Ltd 1966 SC (HL) 31 the driver of a lorry deviated substantially from his route. On the detour, an accident occurred owing to the fault of the driver. The House of Lords said that the presence of passengers, whom the servant was charged as a servant to drive to their ultimate destination made it impossible to say that the deviation was entirely for the servant’s purposes. Their presence and transport was a dominant purpose of the authorised journey. Therefore there was vicarious liability.
There was then the case of Morris v C W Morris & Sons Ltd. [1966] 1 QB 716. In that case an employee of a cleaning company stole a mink coat. The Court of Appeal held the cleaning company liable because the employee was acting in the scope or course of his employment.
In Racz v Home Office [1994] 2 AC 45 there was authority for the proposition that the Home Office might be vicariously liable for the acts of police officers which amounted to misfeasance in public office. In Rose v Plenty [1976] 1 WLR 141 the Court of Appeal held that a milkman who deliberately disobeyed his employers’ order not to allow children to help on his rounds did not go beyond his course of employment in allowing a child to help him. In that case, Lord Justice Scarman had said that the milkman had chosen to enlist the assistance of the Claimant (a child) and that was a mode, albeit a prohibited mode of doing the job that the milkman was employed to do.
Lord Steyn then considered the judgment of the Court of Appeal in the case of Trotman. This decision had been criticised by the Canadian Supreme Court in Bazley. McLachlin J had said that instead of describing the act of abuse in terms of the employee’s duties of supervising and caring for vulnerable students during a study trip abroad, the Court of Appeal cast it in terms unrelated to those duties. Important legal decisions should not turn on such semantics.
Lord Steyn looked at the judgment of Butler-Sloss LJ. He said that it appeared to indicate that there could not vicarious liability by an employer for a brutal assault, or serious sexual misconduct whatever the circumstances. The better approach would be to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort. Therefore the approach of the Court of Appeal in Trotman was incorrect. The Defendant in that case was responsible for the care of vulnerable children and employed the deputy headmaster to carry out that duty on its behalf. The sexual abuse took place while the employee was engaged in duties at the very time and place demanded by his employment. The connection between the employment and the torts was very close.
In this case, Lord Steyn was satisfied that the employers entrusted the care of the children in Axeholme House to the warden. The question was 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. On the facts of this case, the answer was yes.
It was not necessary to express a view on the alternative argument based on the employee’s alleged breach of duty to report his sexual intentions or the consequences of his misdeeds. However this line of argument might require further consideration. If an employee was aware of a physical injury sustained by a boy as a result of his conduct, it might be said to be part of his duties to report this fact to his employers. If that was so, why should the same not be true of psychological damage caused by the sexual abuse of a boy? In the present case, this did not need to be decided.
Lord Clyde discussed the problems with the doctrine of vicarious liability. A convenient starting was the exposition that could be found in Salmond and Heuston on Torts 21st edition Page 443. This was the classic statement of the concept. What had to be considered was the connection, if any, between the act in question and the employment. If there was a connection, then the closeness of that connection had to be considered. The sufficiency of the connection might be gauged by asking whether the wrongful actions could be seen as ways of carrying out the work which the employer had authorised.
Lord Clyde said that there were three matters that deserved consideration:-
- In considering the scope of the employment a broad approach should be adopted. In Rose v Plenty [1976] 1 WLR 141 the employer was held liable where the prohibitions against the milk roundsman giving others lifts on his float and against employing others to help him, were regarded as prohibitions relating to the conduct of the work and not as limiting the sphere of the employment. Similarly where an employer lit a cigarette and threw away the match, that might be an act which could be seen as incidental to and within the scope of employment. (Century Insurance Co. Ltd v Northern Ireland Road Transport Board [1942] AC 509).
- Whilst consideration of the time at which and the place at which the acting occurred would always be relevant, they might not be conclusive.
- While the employment enables the employee to be present at a particular time at a particular place, the opportunity of being present at particular premises whereby the employee has been able to perform the act in question does not means that the act is necessarily within the scope of the employment. There must be something more than mere opportunity. (Heasmans v Clarity Cleaning Co. Limited [1987] ICR 949).
Lord Clyde saw no reason for putting cases of sexual harassment or abuse in a special category of their own. He referred to the Canadian case of Bazley v Curry which concerned vicarious liability for acts of sexual abuse carried out by an employee of a children’s foundation. On the other hand in the other Canadian case of Jacobi v Griffiths the acts took place in the employee’s home outside working hours and away from the club, which was the principal place of employment. The club had provided an opportunity to establish a friendship with the children, but that did not constitute a sufficient connection.
In this case, the care and safekeeping of the boys had been entrusted to the Defendants and they had in turn entrusted their care and safekeeping, so far as the running of the boarding house was concerned, to the warden. The particular acts that the warden carried out on the boys had to be viewed in the context and the circumstances in which they occurred. Therefore the Defendants would be vicariously liable to the Claimants for the injury and damage which they suffered at the hands of the warden.
Lord Hutton agreed with the speech of Lord Steyn.
Lord Hobhouse said that the classes of persons that are in this type of special relationship to another human being included schools, prisons, hospitals and even, in relation to their visitors, occupiers of land.
Lord Hobhouse considered the case of Morris v C W Martin & Sons Limited (see above). Doing the opposite of what it was your duty to do was still a breach of that duty. The appreciation that there are duties involved was at the heart of the analysis and the identification of the criteria for the existence of vicarious liability. Whether or not some act came within the scope of the servant’s employment depended upon an identification of what duty the servant was employed by his employer to perform. If the act of the servant amounted to a failure to perform the duty, the act came within the scope of his employment and the employer was vicariously liable. If, on the other hand, the servant’s employment merely gave the servant the opportunity to do what he did without more, there would be no vicarious liability.
The correct approach was to ask what was the duty of the servant towards the Claimant which was broken by the servant and what was the contractual duty of the servant towards his employer?
The Claimants had sought to rely upon a failure by the warden to report to his employers what had happened and the psychological trauma being suffered by the Claimants. This was an artificial argument because it was premised upon the assumption that the warden’s breach of duty in abusing the Claimants was legally irrelevant. However it was part of both the duty of the carers towards the Claimants and of the warden towards his employers to report to them any incident which was relevant to the well being of the Claimants. Therefore the Court of Appeal was mistaken in not attaching more validity to this way of putting the Claimants’ case. There was a whole succession of breaches of duty by the warden. Lord Hobhouse gave the example of what would have happened, if the abuse had been carried out by a groundsman and the warden became aware of that. The employers might not be liable for what the groundsman did, but they would be liable for the warden’s failure to report the abuse. Therefore this kind of liability was in principle capable of existing.
Lord Hobhouse would allow the appeal by the Claimants.
Lord Millett considered the policy reasons behind the doctrine of vicarious liability and considered the various cases. It was no answer to say that the employee was guilty of intentional wrongdoing, or that his act was not merely tortuous but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer’s duty. The cases showed that where an employer undertook the care of a client’s property and entrusted the task to an employee who stole that property, the employer was vicariously liable.
The warden’s duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that was not in itself to make the school liable. The same would be true of a groundsman or the school porter. However the warden in this case was responsible for the care of the boys whom he assaulted.
Experience showed that in the case of boarding schools, prisons, nursing homes, old people’s homes, geriatric wards and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust.
Lord Millett would hold the school vicariously liable for the warden’s intentional assaults, not for his failure to perform his duties to take care of the boys. That was an artificial approach. The law was mature enough to hold an employer vicariously liable for deliberate, criminal wrongdoing without indulging in sophistry of this kind.
Lord Millett would also not base liability on the warden’s failure to report his own wrongdoing to his employer, an approach which he regarded as both artificial and unrealistic. Even if such a duty did exist, he would be inclined to think that it would be a duty owed exclusively to the employer and not a duty for breach of which the employer could be vicariously liable. The same reasoning would not apply to the duty to report the wrongdoing of fellow employees.
The appeal would be allowed.