Lister v Hesley Hall

Facts

Hesley Hall Ltd ran a boarding school for boys with emotional and behavioural difficulties. It employed Grain as warden of a boarding house at the school, with responsibility for the boys' care and welfare. Over a period of years Grain sexually abused boys who lived there, including the claimants. The abuse took place on the school's premises while the boys were in his care. The claimants sued the school, which had not been negligent in employing Grain, on the footing that it was vicariously liable for his torts.

History

The Court of Appeal held that the school was not vicariously liable, and the claimants appealed to the House of Lords.

Issue

Whether an employer can be vicariously liable for deliberate sexual abuse committed by an employee in the course of caring for children entrusted to him, and the proper test of the course of employment.

Held

Appeal allowed. The school was vicariously liable for the warden's abuse.

Ratio

• An employer is vicariously liable for an employee's wrongful act where the act is so closely connected with the employment that it would be fair and just to hold the employer liable, and the test is not limited to unauthorised ways of doing authorised acts.
• Where an employer entrusts the care of children to an employee, deliberate abuse of the children by that employee in the performance of that function may be so closely connected with the employment as to give rise to vicarious liability.

The judgments

Key reasoning

• The employer had undertaken the care of vulnerable children and had delegated the performance of that function to the warden, so that the abuse occurred in the course of performing the very task entrusted to him.
• The test of close connection reflects the underlying policy of vicarious liability, which is that an enterprise should bear the risks created by its employees in carrying out the work given to them.
• The traditional Salmond test, which asks whether the act was an unauthorised mode of doing an authorised act, was ill suited to deliberate wrongdoing and produced arbitrary results.

Where it fits in the module

On the FHS topic of the course of employment, Lister is the pivotal case in the move from the Salmond test to the close connection test. It was refined in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, which extended vicarious liability to relationships akin to employment, and in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 and WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, which limited the reach of close connection. The tutorial question is whether the close connection test is a principled basis for liability or a flexible label for a policy judgment about enterprise risk.

Criticisms

• The close connection test is open textured, so it gives little guidance on where liability stops and results in inconsistent decisions in similar cases.
• It does not clearly distinguish liability arising from the creation of risk by the employer from liability arising because the wrong was committed in the course of work, so its rationale is uncertain.
• Liability for intentional torts that the employer could not control sits uneasily with the idea that vicarious liability is based on employer's control or benefit.
• The decision extends liability on policy grounds of deep pockets and compensation without a clear limit, so the burden on institutions is difficult to predict.