44_Lister.

fm Page 769 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd 769

a Lister and others v Hesley Hall Ltd

[2001] UKHL 22
HLLister v Hesley Hall Ltd
01D37May

HOUSE OF LORDS

b LORD STEYN, LORD CLYDE, LORD HUTTON, LORD HOBHOUSE OF WOODBOROUGH AND
LORD MILLETT
7, 8 MARCH, 3 MAY 2001

Vicarious liability – Master and servant – Authorised act done in improper manner –
Defendants owning boarding school and employing warden to take care of boys –
c
Warden sexually abusing boys in his care – Whether school owners vicariously liable
for sexual abuse committed by employee – Test for determining whether employer
vicariously liable for employee’s wrongful act.

Between 1979 and 1982 the claimants were resident at a school for boys with
d emotional and behavioural difficulties, owned by the defendants. The latter
employed G to take care of the boys as warden of the school’s boarding annex.
Unbeknown to his employers, G systematically sexually abused the claimants
while they were resident at the school. He was eventually convicted of multiple
offences involving sexual abuse. Subsequently, the claimants brought actions for
e
personal injury against the defendants, alleging, inter alia, that they were
vicariously liable for the torts committed by their employee, G. The judge
concluded, on the basis of binding Court of Appeal authority, that the defendants
could not be vicariously liable for G’s torts since sexual abuse was outside the
course of his employment, not an improper mode of carrying out an act
authorised by his employers. The judge nevertheless held that the defendants
f were vicariously liable for G’s breach of duty in failing to report his intentions and
the acts of abuse. Accordingly, he gave judgment for the claimants on liability,
and the defendants appealed. Like the judge, the Court of Appeal was bound by
its earlier decision that an employer could not be vicariously liable for sexual
abuse committed by a teacher against pupils in his care. Unlike the judge, it also
g
held that a failure to report wrong conduct could not be within the scope of
employment, so as to make the employer vicariously liable for that failure, when
it was not vicariously liable for the wrongful conduct itself. Accordingly, it
allowed the defendants’ appeal. On the claimants’ appeal to the House of Lords,
their Lordships considered the proper approach to determining whether an
employee’s wrongful act had been committed in the course of his employment,
h and whether, on the proper approach, the defendants were vicariously liable for
the sexual abuse itself.

Held – When determining whether an employer was vicariously liable for an

employee’s wrongful act, it was necessary to concentrate on the relative
j closeness of the connection between the nature of the employment and the
particular tort, taking a broad approach to the nature of the employment by
asking what was the job on which the employee was engaged for his employer.
If that approach to the nature of employment were adopted, it was not necessary
to ask the simplistic question whether, in the instant case, the acts of sexual abuse
were modes of doing authorised acts. Rather, it became possible to consider the
question of vicarious liability on the basis that the defendants had undertaken to
44_Lister.fm Page 770 Monday, June 4, 2001 6:11 PM

770 All England Law Reports [2001] 2 All ER

care for boys through the services of G and that there was a very close connection
between his employment and his torts. They had been committed in the time and a
at the premises of the defendants while G was busy caring for the children in
performance of his duties. In those circumstances, G’s torts were so closely
connected with his employment that it would be fair and just to hold the
defendants vicariously liable. Accordingly, the appeal would be allowed (see [20],
[23]–[25], [27], [28], [30], [37], [42], [43], [48]–[52], [59]–[61], [63], [69], [70], [80], [82] b
and [85], post).
Ilkiw v Samuels [1963] 2 All ER 879, Morris v C W Martin & Sons Ltd [1965] 2 All ER
725 and Rose v Plenty [1976] 1 All ER 97 applied.
Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71
adopted.
Trotman v North Yorkshire CC [1999] LGR 584 overruled. c

Notes
For the liability of employers for torts committed by an employee in the course
of his employment, see 45(2) Halsbury’s Laws (4th edn reissue) paras 304, 819–820.
d
Cases referred to in opinions
Aldred v Nacanco [1987] IRLR 292, CA.
Barwick v English Joint Stock Bank (1867) LR 2 Exch 259, [1861–73] All ER Rep 194,
Ex Ch.
Bazley v Curry (1999) 174 DLR (4th) 45, Can SC.
Canadian Pacific Rly Co v Lockhart [1942] 2 All ER 464, [1942] AC 591, PC. e
Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 SC 796, Ct of Sess.
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] 1 All ER
491, [1942] AC 509, HL.
Cheshire v Bailey [1905] 1 KB 237, CA.
Deatons Pty Ltd v Flew (1949) 79 CLR 370, Aust HC. f
Dyer v Munday [1895] 1 QB 742, [1895–9] All ER Rep 1022, CA.
Foulkes v Metropolitan District Rly Co (1880) 5 CPD 157.
Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd [1970] 3 All ER 825, [1970]
1 WLR 1262, PC.
Heasmans v Clarity Cleaning Co Ltd [1987] ICR 949, CA.
Heiton & Co v M’Sweeney [1905] 2 IR 47, KBD. g
Hooper v London and North Western Rly Co (1881) 50 LJQB 103.
Ilkiw v Samuels [1963] 2 All ER 879, [1963] 1 WLR 991, CA.
Imperial Chemical Industries Ltd v Shatwell [1964] 2 All ER 999, [1965] AC 656,
[1964] 3 WLR 329, HL.
Irving v Post Office [1987] IRLR 289, CA. h
Jacobi v Griffiths (1999) 174 DLR (4th) 71, Can SC.
Joel v Morison (1834) 6 C & P 501, 172 ER 1338.
Jones v Tower Boot Co Ltd [1997] 2 All ER 406, [1997] ICR 254, CA.
Kilboy v South Eastern Fire Area Joint Committee 1952 SC 280, Ct of Sess.
Kirby v National Coal Board 1958 SC 514, Ct of Sess. j
Lloyd v Grace, Smith & Co [1912] AC 716, [1911–13] All ER Rep 51, HL.
Meux v Great Eastern Ry Co [1895] 2 QB 387, [1895–99] All ER Rep 710.
Morris v C W Martin & Sons Ltd [1965] 2 All ER 725, [1966] 1 QB 716, [1965] 3 WLR
276, CA.
Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 556, [1980] AC 827,
[1980] 2 WLR 283, HL.
44_Lister.fm Page 771 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Steyn) 771

Plumb v Cobden Flour Mills Co Ltd [1914] AC 62, HL.

a
Port Swettenham Authority v T W Wu & Co (M) Sdn Bhd [1978] 3 All ER 337, [1979]
AC 580, [1978] 3 WLR 530, PC.
Racz v Home Office [1994] 1 All ER 97, [1994] 2 AC 45, [1994] 2 WLR 23, HL.
Rose v Plenty [1976] 1 All ER 97, [1976] 1 WLR 141, CA.
Sanderson v Collins [1904] 1 KB 628, [1904–07] All ER Rep 561.
b Staveley Iron and Chemcial Co Ltd v Jones [1956] 1 All ER 403, [1956] AC 627, [1956]
2 WLR 479, HL.
Trotman v North Yorkshire CC [1999] LGR 584, CA.
Ward v Scotrail Rlys Ltd 1999 SC 255, Ct of Sess.
Warren v Henlys Ltd [1948] 2 All ER 935.
Williams v A & W Hemphill Ltd 1966 SC (HL) 31.
c
Appeal
The second and third plaintiffs, Steven Robert Bilcliff and Maurice Christopher
Loaring, former residents of Axeholme House, the boarding annex of Wilsic Hall
School, Wadsworth, Doncaster, appealed with permission of the Appeal
d Committee of the House of Lords given on 16 May 2000 from the order of the
Court of Appeal (Swinton Thomas, Waller LJJ and Jonathan Parker J) on 7 October
1999 allowing an appeal by the respondents, Hesley Hall Ltd, the owners of the
school, from the order of Judge Walker at Dewsbury County Court on 21 January
1999, drawn up on 25 February 1999, giving judgment on liability for the first
plaintiff, Konrad Maurice Lister, and the appellants in their actions against the
e respondents for personal injury arising out of acts of sexual abuse committed on
them between 1979 and 1982 by the person then employed by the respondents as
the warden of the annex. Mr Lister did not appeal from the Court of Appeal’s
order. The facts are set out in the opinion of Lord Steyn.

f Richard Maxwell QC and Rosalind Coe (instructed by Last Cawthra Feather, Shipley)
for the appellants.
Andrew Collender QC and Andrew Miller (instructed by Beachcroft Wansbroughs,
Leeds) for the respondents.

Their Lordships took time for consideration.

g
3 May 2001. The following opinions were delivered.

LORD STEYN.
h (I) The question
[1] My Lords, the central question before the House is whether as a matter of
legal principle the employers of the warden of a school boarding house, who
sexually abused boys in his care, may depending on the particular circumstances
be vicariously liable for the torts of their employee.
j
(II) The sexual abuse
[2] In 1979 Axeholme House, a boarding annex of Wilsic Hall School,
Wadsworth, Doncaster, was opened. Between 1979 and 1982 the appellants were
resident at Axeholme House. At that time the appellants were aged between 12 and
15 years. The school and boarding annex were owned and managed by Hesley
Hall Ltd as a commercial enterprise. In the main children with emotional and
44_Lister.fm Page 772 Monday, June 4, 2001 6:11 PM

772 All England Law Reports [2001] 2 All ER

behavioural difficulties were sent to the school by local authorities. Axeholme

House is situated about two miles from the school. a
[3] The aim was that Axeholme House would provide care to enable the boys
to adjust to normal living. It usually accommodated about 18 boys. The company
employed Mr and Mrs Grain as warden and housekeeper to take care of the boys.
The employers accept that at the material time they were aware of the
opportunities of sexual abuse which may present themselves in a boarding school b
environment.
[4] The warden was responsible for the day-to-day running of Axeholme
House and for maintaining discipline. He lived there with his wife, who was
disabled. On most days he and his wife were the only members of staff on the
premises. He supervised the boys when they were not at school. His duties
included making sure the boys went to bed at night, got up in the morning and c
got to and from school. He administered pocket money, organised weekend
leave, evening activities, and supervised other staff. Axeholme House was intended to
be a home for the boys and not an extension of the school environment.
[5] The employers accept that, unbeknown to them, the warden systematically
sexually abused the appellants in Axeholme House. The sexual abuse took the d
form of mutual masturbation, oral sex and sometimes buggery. The sexual abuse
was preceded by ‘grooming’ being conduct on the part of the warden to establish
control over the appellants. It involved unwarranted gifts, trips alone with the
boys, undeserved leniency, allowing the watching of violent and X-rated videos,
and so forth. What may initially have been regarded as signs of a relaxed approach
to discipline gradually developed into blatant sexual abuse. Neither of the e
appellants made any complaint at the time. In 1982 the warden and his wife left
the employ of the respondents. In the early 1990s a police investigation led to
criminal charges in the Crown Court. Grain was sentenced to seven years’
imprisonment for multiple offences involving sexual abuse.
[6] In 1997 the appellants brought claims for personal injury against the
f
employers.

(III) The decision at first instance

[7] The trial took place in January 1999. It is necessary to describe the shape
of the case. There were then three claimants. Their claims were advanced on two
separate grounds. First, it was alleged that the employers were negligent in their g
care, selection and control of the warden. Secondly, the plaintiffs alleged that the
employers were vicariously liable for the torts committed by the warden. The
case was heard before Judge Walker in the Dewsbury County Court. The evidence
was adduced by witness statements and oral evidence. The judge was asked to
give judgment on liability only. h
[8] On 25 February 1999 the judge gave judgment. He dismissed the claim in
negligence against the employers. That left the claim based on vicarious liability
to be considered. This claim appeared to be ruled out by the Salmond test (Salmond
on Torts (9th edn, 1936) p 95; Salmond and Heuston on the Law of Torts (21st edn,
1996) p 443) as interpreted and applied by the Court of Appeal in Trotman v North
Yorkshire CC [1999] LGR 584. The following passage in the judgment of Butler-Sloss LJ j
(at 591) reveals the perceived difficulty:
‘18. Having looked at some of the relevant decisions on each side of the
line, it is useful to stand back and ask: applying general principles, in which
category in the Salmond test would one expect these facts to fall? A deputy
headmaster of a special school, charged with the responsibility of caring for
44_Lister.fm Page 773 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Steyn) 773

a handicapped teenager on a foreign holiday, sexually assaults him. Is that in

a principle an improper mode of carrying out an authorised act on behalf of his
employer, the council, or an independent act outside the course of his
employment? His position of caring for the plaintiff by sharing a bedroom
with him gave him the opportunity to carry out the sexual assaults. But
availing himself of that opportunity seems to me to be far removed from an
b unauthorised mode of carrying out a teacher’s duties on behalf of his
employer. Rather it is a negation of the duty of the council to look after
children for whom it was responsible. Acts of physical assault may not be so
easy to categorise, since they may range, for instance, from a brutal and
unprovoked assault by a teacher to forceful attempts to defend another pupil
or the teacher himself. But in the field of serious sexual misconduct, I find it
c difficult to visualise circumstances in which an act of the teacher can be an
unauthorised mode of carrying out an authorised act, although I would not
wish to close the door on the possibility.’
Thorpe LJ agreed with this judgment and Chadwick LJ expressed himself in
materially similar terms. Not surprisingly, the judge felt compelled to conclude
d that the employers could not be held vicariously liable for the torts of the warden.
On the other hand, the judge held that the employers were vicariously liable for
the warden’s failure to report to his employers his intentions (before the acts of
sexual abuse) and the harmful consequences to the children (after acts of abuse).
The judge explained his reasoning as follows:
e
‘1. The defendant admits it had a duty of care towards the plaintiffs.
2. That duty of care was to take all reasonable steps to safeguard the plaintiffs
(and other pupils) in its physical, moral and educational development whilst at
the school. 3. In carrying out that duty of care the defendant a limited
company necessarily had to appoint a hierarchy of responsible agents …
f 4. Mr Grain in particular was responsible for the boys while at Axeholme
House … 5. He had a duty to report to the defendant … any harm which
he perceived had come or might come to any of the boys in his care with a
view to the defendant carrying out further its duty of care in taking remedial
or preventative steps. 6. Failure by Mr Grain to report harm to the boys
g would unquestionably be a failure to carry out a duty which he owed
generally and specifically to each boy in his care. 7. The consequences of a
report of abuse upon a boy would (I find) undoubtedly have resulted in the
removal from the scene by the defendant of the source of the harm by the
dismissal of Mr Grain and the report of the incident to the police. 8. The
defendant is therefore vicariously liable for Mr Grain’s failure to report the
h acts of abuse.’
The judge entered judgment for the plaintiffs against the employers on liability,
and ordered that damages be assessed. The judge gave leave to appeal to the
Court of Appeal.
j
(IV) The Court of Appeal decision
[9] The employers appealed to the Court of Appeal. The plaintiffs did not
cross-appeal the judge’s decision that the employers were not negligent. The
only remaining issue was therefore whether the employers were vicariously
liable. But, like the judge, the Court of Appeal was bound by the previous Court
of Appeal decision in Trotman’s case. In this situation counsel for the plaintiffs
44_Lister.fm Page 774 Monday, June 4, 2001 6:11 PM

774 All England Law Reports [2001] 2 All ER

found it difficult to argue that the employers were vicariously liable for the sexual
acts of the warden. Instead counsel for the plaintiffs defended the judgment in a
favour of his clients on the basis of the warden’s failure to report his own conduct.
By judgments delivered on 7 October 1999 ((1999) Times, 13 October), the Court
of Appeal dismissed this argument. The reasoning of the Court of Appeal is
encapsulated in the following sentence in the judgment of Waller LJ:
b
‘The simple point in this case is that if wrongful conduct is outside the
course of employment, a failure to prevent or report that wrong conduct
cannot be within the scope of employment so as to make the employer
vicariously liable for that failure when the employer was not vicariously
liable for the wrongful conduct itself.’
c
The Court of Appeal accordingly allowed the appeal. In due course the House of
Lords granted leave to appeal. The appeal proceeded at the instance of two
appellants only.

(V) The issues before the House

d
[10] Since the decision in the Court of Appeal the law reports of two landmark
decisions in the Canadian Supreme Court, which deal with vicarious liability of
employers for sexual abuse of children, have become available: Bazley v Curry
(1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71. Enunciating
a principle of ‘close connection’ the Supreme Court unanimously held liability
established in Bazley’s case and by a four to three majority came to the opposite e
conclusion in Jacobi’s case. The Supreme Court judgments examine in detail the
circumstances in which, though an employer is not ‘at fault’, it may still be ‘fair’
that that it should bear responsibility for the tortious conduct of its employees.
These decisions have been described as ‘a genuine advance on the unauthorised
conduct/unauthorised mode distinction’: Peter Cane ‘Vicarious Liability for
Sexual Abuse’ (2000) 116 LQR 21 at 24. Counsel for the appellants invited your f
Lordships to apply the test developed in Bazley’s case and in Jacobi’s case and to
conclude that the employers are vicariously liable for the sexual torts of their
employee.
[11] In another sense the approach to the appeals before the House differs
from that adopted in the Court of Appeal. The House is not bound to follow the g
decision in Trotman’s case. On the contrary, quite apart from the high persuasive
value of the two Canadian decisions, the first task of the House is to consider
whether the decision in Trotman’s case, when examined from a perspective of
legal principle, correctly states the position. On the principal point the present
appeals therefore in reality challenge the law as stated by the Court of Appeal in h
Trotman’s case rather than in the cases under consideration.
[12] Only if the arguments of the appellants, which seek an overruling of
Trotman’s case, fail will it become necessary to consider whether vicarious
liability may nevertheless be based on the warden’s failure to report his sexual
intentions and misdeeds. j
(VI) The perspective of principle
[13] It is right to acknowledge at once that Trotman v North Yorkshire CC is a
carefully considered and reasoned decision. The leading judgment was given by
Butler-Sloss LJ whose views are entitled to great weight. Nevertheless, our
allegiance must be to legal principle. That is the subject to which I now turn.
44_Lister.fm Page 775 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Steyn) 775

[14] Vicarious liability is legal responsibility imposed on an employer,

a although he is himself free from blame, for a tort committed by his employee in
the course of his employment. Fleming observed that this formula represented—
‘a compromise between two conflicting policies: on the one end, the social
interest in furnishing an innocent tort victim with recourse against a
financially responsible defendant; on the other, a hesitation to foist any
b undue burden on business enterprise …’ (See The Law of Torts (9th edn, 1998)
pp 409–410.)
[15] For nearly a century English judges have adopted Salmond’s statement of
the applicable test as correct. Salmond said that a wrongful act is deemed to be
done by a ‘servant’ in the course of his employment if ‘it is either (a) a wrongful
c
act authorised by the master, or (b) a wrongful and unauthorised mode of doing
some act authorised by the master’ (Salmond on Torts (1st edn, 1907) p 83 (author’s
emphasis) and Salmond and Heuston on Torts (21st edn, 1996) p 443). Situation (a)
causes no problems. The difficulty arises in respect of cases under (b). Salmond
did, however, offer an explanation which has sometimes been overlooked. He
d said (Salmond on Torts (1st edn, 1907) pp 83–84) that ‘a master … is liable even for
acts which he has not authorised, provided they are so connected with acts which
he has authorised, that they may rightly be regarded as modes—although
improper modes—of doing them’ (my emphasis): see the citation of Salmond
with approval in Canadian Pacific Rly Co v Lockhart [1942] 2 All ER 464 at 467,
[1942] AC 591 at 599 (Salmond on Torts (9th edn, 1938) p 95) and in Racz v Home Office
e [1994] 1 All ER 97 at 102, [1994] 2 AC 45 at 53 (Salmond and Heuston on the Law of
Tort (19th edn, 1987) pp 521–522 (20th edn, 1992) p 457). Salmond’s explanation
is the germ of the close connection test adumbrated by the Canadian Supreme
Court in Bazley’s case and Jacobi’s case.
[16] It is not necessary to embark on a detailed examination of the development
f of the modern principle of vicarious liability. But it is necessary to face up to the
way in which the law of vicarious liability sometimes may embrace intentional
wrongdoing by an employee. If one mechanically applies Salmond’s test, the
result might at first glance be thought to be that a bank is not liable to a customer
where a bank employee defrauds a customer by giving him only half the foreign
exchange which he paid for, the employee pocketing the difference. A preoccupation
g
with conceptualistic reasoning may lead to the absurd conclusion that there can
only be vicarious liability if the bank carries on business in defrauding its
customers. Ideas divorced from reality have never held much attraction for
judges steeped in the tradition that their task is to deliver principled but practical
justice. How the courts set the law on a sensible course is a matter to which I now
h turn.
[17] It is easy to accept the idea that where an employee acts for the benefit of
his employer, or intends to do so, that is strong evidence that he was acting in the
course of his employment. But until the decision of the House of Lords in Lloyd v
Grace, Smith & Co [1912] AC 716, [1911–13] All ER Rep 51 it was thought that
j vicarious liability could only be established if such requirements were satisfied.
This was an overly restrictive view and hardly in tune with the needs of society.
In Lloyd’s case it was laid to rest by the House of Lords. A firm of solicitors were
held liable for the dishonesty of their managing clerk who persuaded a client to
transfer property to him and then disposed of it for his own advantage. The
decisive factor was that the client had been invited by the firm to deal with their
managing clerk. This decision was a breakthrough: it finally established that
44_Lister.fm Page 776 Monday, June 4, 2001 6:11 PM

776 All England Law Reports [2001] 2 All ER

vicarious liability is not necessarily defeated if the employee acted for his own
benefit. On the other hand, an intense focus on the connection between the a
nature of the employment and the tort of the employee became necessary.
[18] A good illustration of the correct approach is provided by Williams v A &
W Hemphill Ltd 1966 SC (HL) 31. Contrary to the instructions of his employers a
driver of a lorry deviated substantially from his route. On the detour an accident
occurred owing to the fault of the driver. The question arose whether the b
employers of the lorry driver were vicariously liable. In a speech assented to by
all the members of the House Lord Pearson analysed the position as follows (at 46):
‘Had the driver in the present case been driving a lorry which was empty or
contained nothing of real importance, I think that so substantial a deviation
might well have constituted a frolic of his own. The presence of passengers, c
however, whom the servant is charged qua servant to drive to their ultimate
destination makes it impossible (at all events, provided that they are not all
parties to the plans for deviation) to say that the deviation is entirely for the
servant’s purposes. Their presence and transport is a dominant purpose of the
authorised journey, and, although they are transported deviously, continues to
d
play an essential part. It was said in argument that there must be some limits
to that contention and that one could not hold that, if the driver had gone to
Inverness, he would still be acting on his master’s business. No doubt there
are such limits to the argument as common sense may set on the facts of each
case. But when there are passengers whom the servants on his master’s
behalf has taken aboard for transport to Glasgow, their transport and safety e
does not cease at a certain stage of the journey to be the master’s business,
or part of his enterprise, merely because the servant has for his own purposes
chosen some route which is contrary to his instructions. The more dominant
are the current obligations of the master’s business in connection with the
lorry, the less weight is to be attached to disobedient navigational
extravagances of the servant. In weighing up, therefore, the question of f
degree, whether the admittedly substantial deviation of the vehicle with its
passengers and baggage was such as to make the lorry’s progress a frolic of
the servant unconnected with or in substitution for the master’s business, the
presence of the passengers is a decisive factor against regarding it as a mere
frolic of the servant. In the present case the defenders remained liable, in g
spite of the deviation, for their driver’s negligence.’
This was vicarious liability in the context of negligence. Nevertheless, the
reasoning throws light on the problem under consideration.
[19] The classic example of vicarious liability for intentional wrong doing is h
Morris v C W Martin & Sons Ltd [1965] 2 All ER 725, [1966] 1 QB 716. A woman
wanted her mink stole cleaned. With her permission it was delivered to the
defendants for cleaning. An employee took charge of the fur and stole it. At first
instance the judge held that the defendants were not liable because the theft was
not committed in the course of employment. The Court of Appeal reversed the
judge’s decision and held the defendants liable. It is possible to read the case j
narrowly simply as a bailment case, the wrong being failure to re-deliver. But
two of the judgments are authority for the proposition that the employee
converted the fur in the course of his employment. Diplock LJ observed:
‘If the principle laid down in Lloyd v Grace, Smith & Co is applied to the facts
of the present case, the defendants cannot in my view escape liability for the
44_Lister.fm Page 777 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Steyn) 777

conversion of the plaintiff’s fur by their servant Morrissey. They accepted

a the fur as bailees for reward in order to clean it. They put Morrissey as their
agent in their place to clean the fur and to take charge of it while doing so.
The manner in which he conducted himself in doing that work was to
convert it. What he was doing, albeit dishonestly, he was doing in the scope
or course of his employment in the technical sense of that infelicitous but
b time-honoured phrase. The defendants as his masters are responsible for his
tortious act.’ (See [1965] 2 All ER 725 at 738, [1966] 1 QB 716 at 736–737.)
Salmon LJ held ([1965] 2 All ER 725 at 739, [1966] 1 QB 716 at 738) that ‘the
defendants are liable for what amounted to negligence and conversion by their
servant in the course of his employment’. The deciding factor was that the
c employee had been given custody of the fur. Morris’ case has consistently been
regarded as high authority on the principles of vicarious liability. Atiyah Vicarious
Liability in the Law of Torts (1967) p 271 described it as ‘a striking and valuable
extension of the law of vicarious liability’. Palmer Bailment (2nd edn, 1991)
pp 424–425 treats Morris’ case as an authority on vicarious liability beyond
bailment. He states that ‘if a television repairman steals a television set he is
d called in to repair, his employers would be liable, for the loss occurred whilst he
was performing one of the class of acts in respect of which their duty lay’. And
that does not involve bailment. Moreover, in Port Swettenham Authority v T W Wu
& Co (M) Sdn Bhd [1978] 3 All ER 337, [1979] AC 580 the Privy Council expressly
approved Morris’ case in respect of vicarious liability as explained by Diplock and
e Salmon LJJ.
[20] Our law no longer struggles with the concept of vicarious liability for
intentional wrongdoing. Thus the decision of the House of Lords in Racz v Home
Office [1994] 1 All ER 97, [1994] 2 AC 45 is authority for the proposition that the
Home Office may be vicariously liable for acts of police officers which amounted
to misfeasance in public office—and hence for liability in tort involving bad faith. It
f remains, however, to consider how vicarious liability for intentional wrongdoing
fits in with Salmond’s formulation. The answer is that it does not cope ideally
with such cases. It must, however, be remembered that the great tort writer did
not attempt to enunciate precise propositions of law on vicarious liability. At
most he propounded a broad test which deems as within the course of
g employment ‘a wrongful and unauthorised mode of doing some act authorised
by the master’. And he emphasised the connection between the authorised acts
and the ‘improper modes’ of doing them. In reality it is simply a practical test
serving as a dividing line between cases where it is or is not just to impose
vicarious liability. The usefulness of the Salmond formulation is, however,
crucially dependent on focussing on the right act of the employee. This point was
h
explored in Rose v Plenty [1976] 1 All ER 97, [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. The analysis in this decision shows
how the pitfalls of terminology must be avoided. Scarman LJ said:
j
‘The first defendant was, of course, employed at the time of the accident to
do a whole number of operations. He was certainly not employed to give
the plaintiff a lift, and if one confines one’s analysis of the facts to the incident
of injury to the plaintiff, then no doubt one would say that carrying the
plaintiff on the float—giving him a lift—was not in the course of the first
defendant’s employment. But in Ilkiw v Samuels ([1963] 2 All ER 879 at 889,
44_Lister.fm Page 778 Monday, June 4, 2001 6:11 PM

778 All England Law Reports [2001] 2 All ER

[1963] 1 WLR 991 at 1004) Diplock LJ indicated that the proper approach to
the nature of the servant’s employment is a broad one. He said: “As each of a
these nouns implies [he is referring to the nouns used to describe course of
employment, sphere, scope and so forth] the matter must be looked at
broadly, not dissecting the servant’s task into its component activities—such
as driving, loading, sheeting and the like—by asking: What was the job on
which he was engaged for his employer? and answering that question as a b
jury would.” Applying those words to the employment of the first defendant,
I think it is clear from the evidence that he was employed as a roundsman to
drive his float round his round and to deliver milk, to collect empties and to
obtain payment. That was his job. He was under an express prohibition—a
matter to which I shall refer later—not to enlist the help of anyone doing that
work. And he was also under an express prohibition not to give lifts on the c
float to anyone. How did he choose to carry out the task which I have
analysed? He chose to disregard the prohibition and to enlist the assistance
of the plaintiff. As a matter of common sense, that does seem to me to be a
mode, albeit a prohibited mode, of doing the job with which he was
entrusted. Why was the plaintiff being carried on the float when the accident d
occurred? Because it was necessary to take him from point to point so that
he could assist in delivering milk, collecting empties and, on occasions,
obtaining payment.’ (See [1976] 1 All ER 97 at 104, [1976] 1 WLR 141 at
147–148.)
If this approach to the nature of employment is adopted, it is not necessary to ask e
the simplistic question whether in the cases under consideration the acts of sexual
abuse were modes of doing authorised acts. It becomes possible to consider the
question of vicarious liability on the basis that the employer undertook to care for
the boys through the services of the warden and that there is a very close
connection between the torts of the warden and his employment. After all, they f
were committed in the time and on the premises of employers while the warden
was also busy caring for the children.

(VII) The correctness of Trotman’s case

[21] It is now opportune to take a closer look at the Court of Appeal decision g
in Trotman v North Yorkshire CC [1999] LGR 584. The appeal was from a decision
on a preliminary issue arising on the pleadings. The pleaded facts were as follows
(at 592):
‘(1) At all material times the [council] operated a school for mentally
handicapped children … whereat the plaintiff attended from about May 1990. h
(2) The [council’s] servants or agents who were the staff at the school
organised a holiday trip to Spain which took place on 28 May to 4 June 1991
and the plaintiff, with other pupils, went on the trip and was totally within
the control, and subject to the care, of the [council’s] said servants or agents,
the staff at the said school. (3) Whilst on the holiday in Spain the plaintiff j
shared a bedroom with the deputy headmaster of the said school, the
[council’s] servant or agent, one [MS], and on several nights during the
holiday the plaintiff was indecently assaulted by the said [MS].’
Accordingly, it was alleged, the council was vicariously responsible because the
indecent assaults were committed by MS ‘whilst carrying out his supervisory role
44_Lister.fm Page 779 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Steyn) 779

as a schoolmaster in charge of the plaintiff and responsible for his care’. No breach
a of duty by the council was alleged. Chadwick LJ further observed (at 594):

‘There is no allegation in the particulars of claim that the council itself

owed to the plaintiff a duty to ensure that he was free from harm during the
Spanish holiday. No doubt there were thought to be good reasons for
b pleading the case without alleging any duty owed by the council itself. I
express no view on whether such an allegation could be made good. This
court must decide this appeal on the basis that the preliminary issue is
defined by the allegations which were before the judge. It would not be safe
to proceed on the basis that the case might have been put in some other way
which the plaintiff has not chosen to plead.’
c
Butler-Sloss LJ may have been influenced by similar considerations for at the end
of her judgment she observed (at 592): ‘… on the basis of the case set out in the
pleadings which is the only issue before this court, the blame for these events
cannot be laid at the door of the council.’ This was a rather restricted and
technical view of the dispute. It would not have been overly bold to say that,
d although the council was not itself in breach of any duty, it had undertaken to
exercise reasonable care of the children on the Spanish holiday through the
deputy headmaster. That would not have been the end of the matter but it would
have facilitated a more realistic appraisal of the issue.
[22] The Court of Appeal treated the Morris line of authority as applicable only
e in bailment cases. That was the Court of Appeal’s answer to the argument that,
in the context of vicarious liability, the law ought not to incur the reproach of
showing greater zeal in protecting jewellery than in protecting children. My
Lords, I trust that I have already shown that Morris’ case cannot be so easily
dismissed. It is only necessary to add that in Photo Production Ltd v Securicor
Transport Ltd [1980] 1 All ER 556, [1980] AC 827 the House of Lords took the view
f that the principles enunciated in Morris’ case by Diplock and Salmon LJJ are of
general application. The plaintiffs had contracted with the defendants for the
provision of a night patrol service for their factory. The perils the parties had in
mind were fire and theft. A patrol man deliberately lit a fire which burned down
the factory. It was an unresolved issue whether the employee intended to cause
g only a small fire or burn down the whole factory: see [1980] 1 All ER 556 at 559,
[1980] AC 827 at 840. The question was whether Securicor was protected by an
exemption clause. The basis of the prima facie liability of Securicor therefore had
to be determined. Lord Wilberforce pointed out that it could be put on more
than one basis. He said:
h
‘… it could be put on a vicarious responsibility for the wrongful act of
Musgrove, viz, starting a fire on the premises; Securicor would be responsible for
this on the principle stated in Morris v C W Martin & Sons Ltd ([1965] 2 All ER
725 at 739, [1966] 1 QB 716 at 739).’ (See [1980] 1 All ER 556 at 564, [1980] AC
827 at 846.)
j
Lord Keith of Kinkel and Lord Scarman expressed agreement with Lord
Wilberforce. In a separate speech Lord Salmon observed ([1980] 1 All ER 556 at
569, [1980] AC 827 at 852):
‘There can be no doubt that, but for the clause in the contract which I have
recited, Securicor would have been liable for the damage which was caused
44_Lister.fm Page 780 Monday, June 4, 2001 6:11 PM

780 All England Law Reports [2001] 2 All ER

by their servant Musgrove whilst indubitably acting in the course of his

employment: see Morris v C W Martin & Sons Ltd.’ a

It is therefore plain that the Court of Appeal in Trotman’s case erred in treating
Morris’ case as reflecting a special rule application in bailment cases only.
[23] But at the root of the reasoning of the Court of Appeal lay a terminological
difficulty. Butler-Sloss LJ thought ([1999] LGR 584 at 591), that the sexual assaults
b
were ‘far removed from an unauthorised mode of carrying out a teacher’s duties
on behalf of his employer’. Chadwick LJ (at 592–593) found it—
‘impossible to hold that the commission of acts of indecent assault can be
regarded as a mode—albeit, an improper or unauthorised mode—of doing
what … the deputy headmaster was employed by the council to do … c
Rather, it must be regarded as an independent act of self-indulgence or
self-gratification.’
In giving the unanimous judgment of the Canadian Supreme Court in Bazley v
Curry (1999) 174 DLR (4th) 45 McLachlin J criticised the decision in Trotman’s case
in the following terms (at 57 (para 24)): d
‘… the opinion’s reasoning depends on the level of generality with which
the sexual act is described. Instead of describing the act 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. As e
Atiyah points out [Vicarious Liability in the Law of Torts, p 263]: “conduct can
be correctly described at varying levels of generality, and no one description
of the ‘act’ on which the servant was engaged is necessarily more correct
than any other”.’
I am in respectful agreement with this comment. f
[24] It is useful to consider an employer’s potential liability for non-sexual
assaults. If such assaults arise directly out of circumstances connected with the
employment, vicarious liability may arise: see Rose ‘Liability for an Employee’s
Assaults’ (1977) 40 MLR 420 at 432–433. Butler-Sloss LJ considered this analogy.
In the critical paragraph of her judgment, which I have already quoted in full, she g
stated ([1999] LGR 584 at 591):
‘Acts of physical assault may not be so easy to categorise, since they may
range, for instance, from a brutal and unprovoked assault by a teacher to
forceful attempts to defend another pupil or the teacher himself. But in the
h
field of serious sexual misconduct, I find it difficult to visualise circumstances
in which an act of the teacher can be an unauthorised mode of carrying out
an authorised act, although I would not wish to close the door on the
possibility.’
If I correctly understand this passage, it appears to be indicating that there could j
not be vicarious liability by an employer for a brutal assault, or serious sexual
misconduct whatever the circumstances. That appears to be a case of saying ‘The
greater the fault of the servant, the less the liability of the master’ (see Morris v
C W Martin & Sons Ltd [1965] 2 All ER 725 at 736, [1966] 1 QB 716 at 733 per
Diplock LJ). A better approach is to concentrate on the relative closeness of the
connection between the nature of the employment and the particular tort.
44_Lister.fm Page 781 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Clyde) 781

[25] In my view the approach of the Court of Appeal in Trotman’s case was
a wrong. It resulted in the case being treated as one of the employment furnishing
a mere opportunity to commit the sexual abuse. The reality was that the county
council were responsible for the care of the vulnerable children and employed the
deputy headmaster to carry out that duty on its behalf. And the sexual abuse took
place while the employee was engaged in duties at the very time and place
b demanded by his employment. The connection between the employment and
the torts was very close. I would overrule Trotman’s case.
[26] It is not necessary to consider case law on the words ‘in the course of his
employment’ which are to be found in s 32(1) of the Race Relations Act 1976 and
s 41 of the Sex Discrimination Act 1975.
c (VII) The application of the correct test
[27] My Lords, I have been greatly assisted by the luminous and illuminating
judgments of the Canadian Supreme Court in Bazley’s case and Jacobi’s case.
Wherever such problems are considered in future in the common law world
these judgments will be the starting point. On the other hand, it is unnecessary
d to express views on the full range of policy considerations examined in those
decisions.
[28] Employing the traditional methodology of English law, I am satisfied that
in the case of the appeals under consideration the evidence showed that the
employers entrusted the care of the children in Axeholme House to the warden.
The question is whether the warden’s torts were so closely connected with his
e employment that it would be fair and just to hold the employers vicariously
liable. On the facts of the case the answer is yes. After all, the sexual abuse was
inextricably interwoven with the carrying out by the warden of his duties in
Axeholme House. Matters of degree arise. But the present cases clearly fall on
the side of vicarious liability.
f
(VIII) The alternative argument
[29] Having concluded that vicarious liability has been established on the
appellants’ primary case, it is not necessary to express a view on the alternative
argument based on the employee’s alleged breach of a duty to report his sexual
intentions or the consequences of his misdeeds. Nevertheless, this line of
g argument may require further consideration. For example, if the 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 is so,
why should the same not be true of psychological damage caused by his sexual
abuse of a boy? In the present case those issues do not need to be decided.
h Possibly they could arise in other cases, eg where otherwise a limitation issue
may arise. I express no view on this aspect.

(IX) The outcome

[30] I would allow the appeal and order that judgment on liability be entered
j in favour of the appellants. Damages are to be assessed.
LORD CLYDE.
[31] My Lords, Between 1979 and 1982 while the appellants were in their early
teenage years they attended a school for maladjusted and vulnerable boys which
was owned and managed by the respondents. During the course of that period
they were the victims of repeated sexual and physical abuse by the warden of a
44_Lister.fm Page 782 Monday, June 4, 2001 6:11 PM

782 All England Law Reports [2001] 2 All ER

boarding house in which they were resident as students of the school. The
warden was employed by the respondents to look after and care for the students a
resident in the house. The warden was later tried and convicted for a large
number of offences against the appellants and other boys. The appellants have
claimed damages from the respondents for personal injury. It is not now
contended that the respondents had failed to take reasonable care in selecting or
supervising the warden. The claims now rest on the basis that the respondents b
are vicariously liable for the acts of their employee.
[32] Before the Court of Appeal the case proceeded upon the proposition that
the warden had failed in a duty to report his wrongful intentions and conduct to
the respondents. In light of the decision in Trotman v North Yorkshire CC [1999]
LGR 584 it was not open to the appellants either at first instance or in the Court
of Appeal to present the case on the basis of a vicarious liability on the c
respondents for the acts of abuse themselves. In this House however that latter
approach became the principal ground presented by the appellants. As regards
the former proposition I would say nothing more than that it seems to be a
somewhat artificial basis for the claim. But in light of the view which I am taking
on the principal point there is no need to explore it in the present case. The d
critical question now is whether the respondents can and should be held vicariously
liable for the acts of abuse committed by the warden on the appellants.
[33] Questions may arise in some cases whether the person who committed
the tort was in such a relationship with another as to enable the concept of a
vicarious liability on that other person to arise. In some circumstances difficult
questions may occur in this regard. However that complication does not exist in e
the present case. The warden was plainly an employee and in a relationship of
employment with the respondents. The situation is accepted to be one where a
vicarious liability may arise. The question is whether there is a vicarious liability
for the particular tortious, and indeed criminal, conduct complained of. In
accordance with well-established law the question is whether that conduct fell f
within the scope of the employment.
[34] It is not useful to explore the historical origins of the vicarious liability of
an employer in the hope of finding guidance in the principles of its modern
application. In Kilboy v South Eastern Fire Area Joint Committee 1952 SC 280 at 285
the Lord President (Cooper) said of the rule respondeat superior: ‘What was once
presented as a legal principle has degenerated into a rule of expediency, g
imperfectly defined, and changing its shape before our eyes under the impact of
changing social and political conditions.’ Holmes (The Common Law (1888) ch 1,
p 5 in the 44th printing of 1951), noting how rules may survive the customs or
beliefs or needs which established them, described the situation more generally:
h
‘The reason which gave rise to the rule has been forgotten, and ingenious
minds set themselves to inquire how it is to be accounted for. Some ground
of policy is thought of, which seems to explain it and to reconcile it with the
present state of things; and then the rule adapts itself to the new reasons
which have been found for it, and enters on a new career.’
j
[35] A variety of theories have been put forward to explain the rule. The
expression ‘respondeat superior’ and the maxim ‘qui facit per alium facit per se’,
while they may be convenient, do not assist in any analysis. Lord Reid observed
in Staveley Iron and Chemcial Co Ltd v Jones [1956] 1 All ER 403 at 409, [1956] AC 627
at 643: ‘The former merely states the rule baldly in two words, and the latter
merely gives a fictional explanation of it.’ Lord Pearce stated in Imperial Chemical
44_Lister.fm Page 783 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Clyde) 783

Industries Ltd v Shatwell [1964] 2 All ER 999 at 1011–1012, [1965] AC 656 at 685:
a ‘The doctrine of vicarious liability has not grown from any very clear, logical or
legal principle but from social convenience and rough justice.’ I am not persuaded
that there is any reason of principle or policy which can be of substantial guidance
in the resolution of the problem of applying the rule in any particular case.
Theory may well justify the existence of the concept, but it is hard to find
b guidance from any underlying principle which will weigh in the decision whether
in a particular case a particular wrongful act by the employee should or should
not be regarded as falling within the scope of the employment.
[36] A convenient starting point is the exposition which can be traced from the
first edition of Salmond on Torts in 1907, p 83 to the 21st edition of Salmond and
Heuston on Torts (1996) p 443. The passage was of course drafted before the
c decision in Lloyd v Grace, Smith & Co [1912] AC 716, [1911–13] All ER Rep 51
which affirmed that vicarious liability could still arise where the fraud of the agent
was committed solely for the benefit of the agent. But it has remained as a classic
statement of the concept:
‘A master is not responsible for a wrongful act done by his servant unless
d it is done in the course of his employment. It is deemed to be so done if it is
either (1) a wrongful act authorised by the master, or (2) a wrongful and
unauthorised mode of doing some act authorised by the master.’
As regards the second of these two cases the text continues:
e ‘But a master, as opposed to the employer of an independent contractor, is
liable even for acts which he has not authorised, provided they are so
connected with acts which he has authorised that they may rightly be
regarded as modes—although improper modes—of doing them.’
[37] That latter observation seems to me to be of particular importance. An
f act of deliberate wrongdoing may not sit easily as a wrongful mode of doing an
authorised act. But recognition should be given to the critical element in the
observation, namely the necessary connection between the act and the
employment. The point is made by Salmond even in the first edition, p 84, where
he states:
g ‘On the other hand, if the unauthorised and wrongful act of the servant is
not so connected with the authorised act as to be a mode of doing it, but is
an independent act, the master is not responsible.’
What has essentially to be considered is the connection, if any, between the act
in question and the employment. If there is a connection, then the closeness of
h that connection has to be considered. The sufficiency of the connection may be
gauged by asking whether the wrongful actings can be seen as ways of carrying
out the work which the employer had authorised.
[38] In the first edition the statement which I quoted earlier is supported by
reference to a passage in Clerk and Lindsell on Torts (4th edn, 1906) p 75 where the
j same idea is expressed. On the previous page of that work the authors refer for
the ascertainment of what constitutes scope of employment to Sanderson v Collins
[1904] 1 KB 628, [1904–07] All ER Rep 561, and to Heiton & Co v M’Sweeney [1905]
2 IR 47, in which that decision was recognised and adopted. Sanderson’s case was
a case of bailment. The defendant’s coachman had taken out for his own
purposes a dog-cart which belonged to the plaintiff and had been lent to the
defendant. It was held that the defendant was not vicariously liable for the
44_Lister.fm Page 784 Monday, June 4, 2001 6:11 PM

784 All England Law Reports [2001] 2 All ER

coachman’s actions. Collins MR observed ([1904] 1 KB 628 at 632, [1904–07] All

ER Rep 561 at 563): ‘If the servant in doing any act breaks the connection of a
service between himself and his master, the act done under those circumstances
is not that of the master.’
[39] This area of the law is one where Scotland and England have each drawn
on the other’s jurisprudence and the importance of the existence of a sufficient
connection has also been noticed in Scots law. In Kirby v National Coal Board 1958 b
SC 514 at 532–533, the Lord President (Clyde), in a passage part of which was
quoted in this House by Lord Pearce in Williams v A & W Hemphill Ltd 1966 SC
(HL) 31 at 44, observed that from the decisions—
‘four different types of situation have been envisaged as guides to the
solution of this problem. In the first place, if the master actually authorised c
the particular act, he is clearly liable for it. Secondly, where the workman
does some work which he is appointed to do, but does it in a way which his
master has not authorised and would not have authorised had he known of
it, the master is nevertheless still responsible, for the servant’s act is still
within the scope of his employment. On the other hand, in the third place,
if the servant is employed only to do a particular work or a particular class of d
work, and he does something outside the scope of that work, the master is
not responsible for any mischief the servant may do to a third party. Lastly,
if the servant uses his master’s time or his master’s place or his master’s tools
for his own purposes, the master is not responsible …’
The Lord President continued, under reference to the passage in Salmond to e
which I have already referred and to Lord Thankerton’s approval of that passage
in Canadian Pacific Rly Co v Lockhart [1942] 2 All ER 464 at 467, [1942] AC 591 at 599:
‘It is often difficult in the particular case to distinguish between the second
and the third of these situations, but the criterion is whether the act which is
unauthorised is so connected with acts which have been authorised that it f
may be regarded as a mode—although an improper mode—of doing the
authorised act, as distinct from constituting an independent act for which the
master would not be liable …’
[40] Salmond refers to the ‘course’ of the employment and not the ‘scope’ of g
the employment. Both phrases are sometimes used interchangeably in the
context of vicarious liability. In so far as the liability on the employer arises
through the scope of the authority which the employer has expressly or impliedly
delegated to the employee, the latter expression may be preferable. At the least
the use of the word ‘scope’ may help to distinguish the present case from the
various statutory occasions where the phrase ‘in the course of has employment’ h
or some such words have often been used. It may well be that some assistance
may be found in the considerable case-law which has followed on the Workmen’s
Compensation Acts from 1897 to 1945 or the later social security legislation.
Indeed some cross-fertilisation of ideas has occurred, for example in Canadian
Pacific Rly Co v Lockhart [1942] 2 All ER 464 at 467, [1942] AC 591 at 599, where j
reference was made to the observation by Lord Dunedin in Plumb v Cobden Flour
Mills Co Ltd [1914] AC 62 at 67, a case under the Workmen’s Compensation Act
1906, that: ‘… there are prohibitions which limit the sphere of employment, and
prohibitions which only deal with conduct within the sphere of employment.’
But some caution has to be exercised in looking for assistance from cases where
the court is engaged in an exercise of statutory construction. The language and
44_Lister.fm Page 785 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Clyde) 785

the purpose of the provision may call for an approach and a solution which may
a not exactly accord with the application of the rule of vicarious liability. A
particular statutory context may determine the extent of the application of the
phrase and make the example an unsafe precedent to apply to vicarious liability.
An example may be found in the context of legislation on sexual and racial
discrimination in Jones v Tower Boot Co Ltd [1997] 2 All ER 406, [1997] ICR 254.
b [41] It was observed by the Lord President in Kirby v National Coal Board 1958
SC 514 at 532, that:
‘It is probably not possible and it is certainly inadvisable to endeavour to
lay down an exhaustive definition of what falls within the scope of the
employment. Each case must depend to a considerable extent on its
c particular facts.’
While, as has been seen, what is or is not included within the scope of the
employment is very much a matter of fact, and very many of the reported cases
are decisions which have turned essentially upon their own circumstances.
Three matters however which are relevant to the present case deserve
d consideration.
[42] The first is that in considering the scope of the employment a broad
approach should be adopted. Where there is an express prohibition imposed on the
employee the distinction mentioned by Lord Dunedin in Plumb v Cobden Flour Mills
Co Ltd [1914] AC 62 at 67 to which I have already referred has to be drawn, namely,
e whether it is a prohibition which limits the sphere of the employment or only one
which deals with the conduct within the sphere of employment. In Ilkiw v Samuels
[1963] 2 All ER 879 at 889, [1963] 1 WLR 991 at 1004 Diplock LJ said that:
‘… the decision into which of these two classes the prohibition falls seems
to me to involve first determining what would have been the sphere, scope,
f course (all these nouns are used) of the servant’s employment if the
prohibition had not been imposed. As each of these nouns implies, the
matter must be looked at broadly, not dissecting the servant’s task into its
component activities—such as driving, loading, sheeting and the like—by
asking: What was the job on which he was engaged for his employer? and
g answering that question as a jury would.’
Thus in Rose v Plenty [1976] 1 All ER 97, [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 in the delivery of the milk were
regarded as prohibitions relating to the conduct of the work and not as limiting
h the sphere of the employment.
[43] If a broad approach is adopted it becomes inappropriate to concentrate
too closely upon the particular act complained of. Not only do the purpose and
the nature of the act have to be considered but the context and the circumstances
in which it occurred have to be taken into account. The particular act of lighting
j a cigarette and throwing away the match, if viewed narrowly, may not in itself be
an act which an employee was employed to do. But viewed more broadly it can
be seen as incidental to and within the scope of his employment. Vicarious
liability was thus established in Century Insurance Co Ltd v Northern Ireland Road
Transport Board [1942] 1 All ER 491, [1942] AC 509 where the lighting of a match
to light a cigarette and throwing it on the floor while transferring petrol from a
lorry to a tank was held to be in the scope of employment. Both the negligent
44_Lister.fm Page 786 Monday, June 4, 2001 6:11 PM

786 All England Law Reports [2001] 2 All ER

quality of the act and the connection with the employment have to be assessed
a
against the background of the particular circumstances.
[44] Secondly, while consideration of the time at which and the place at which
the actings occurred will always be relevant, they may not be conclusive. That
an act was committed outside the hours of employment may well point to it
being outside the scope of the employment. But that the act was done during the
hours of the employment does not necessarily mean that it was done within the scope b
of the employment. So also the fact that the act in question occurred during the
time of the employment and in the place of the employment is not enough by
itself. There can be cases where the place where the wrongful act was committed
can be said to have been one where the employee was no longer to be treated as
within the scope of his employment, such as Kirby v National Coal Board 1958 SC c
514, where the mine worker retired from the working face to the waste and was
no longer acting in the scope of his employment, or the various cases on travel,
such as Williams v A & W Hemphill Ltd 1966 SC (HL) 31, where a deviation from
an intended route may or may not take the employee outwith the scope of his
employment. The acting may be so unconnected with the employment as to fall
outside any vicarious liability. Where the employer’s vehicle is used solely for a d
purpose unconnected with the employer’s business, when, to use the language of
Parke B in Joel v Morison (1834) 6 C & P 501 at 503, 172 ER 1338 at 1339, the driver
is ‘going on a frolic of his own’, the employer will not be liable. Acts of passion
and resentment (as in Deatons Pty Ltd v Flew (1949) 79 CLR 370) or of personal
spite (as in Irving v Post Office [1987] IRLR 289) may fall outside the scope of the e
employment. While use of a handbasin at the end of the working day may be an
authorised act, the pushing of the basin so as to cause it to move and startle a
fellow-employee may be an independent act not sufficiently connected with the
employment: Aldred v Nacanco [1987] IRLR 292.
[45] Thirdly, while the employment enables the employee to be present at a
particular time at a particular place, the opportunity of being present at particular f
premises whereby the employee has been able to perform the act in question
does not mean that the act is necessarily within the scope of the employment. In
order to establish a vicarious liability there must be some greater connection
between the tortious act of the employee and the circumstances of his employment
than the mere opportunity to commit the act which has been provided by the g
access to the premises which the employment has afforded: Heasmans v Clarity
Cleaning Co Ltd [1987] ICR 949.
[46] Among the multifarious kinds of employment one situation relevant to
the present case is where the employer has been entrusted with the safekeeping
or the care of some thing or some person and he delegates that duty to an h
employee. In this kind of case it may not be difficult to demonstrate a sufficient
connection between the act of the employee, however wrong it may be, and the
employment. One obvious example is Morris v C W Martin & Sons Ltd [1965] 2
All ER 725, [1966] 1 QB 716. There a fur had been entrusted to the defendants.
They entrusted it to their employee. They were vicariously liable for his j
wrongdoing in converting it. In Photo Production Ltd v Securicor Transport Ltd
[1980] 1 All ER 556, [1980] AC 827 the defendants had undertaken to provide a
night patrol service for a factory. The factory was burned down by one of their
employees who had started a fire on the premises while on duty patrol. But for
the provisions of an exceptions clause in the contract for the night patrol service
the defendants would have been liable in damages to the owners of the factory.
44_Lister.fm Page 787 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Clyde) 787

[47] In Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 SC 796,
a a night watchman employed by garage proprietors to whom a car had been
entrusted for safe keeping took the car out for his own purposes and damaged it
in a collision with another vehicle. It was held that as the garage proprietors had
delegated to their employee the duty of keeping the car safely secured in the
garage they were liable to the owners of the car for the employee’s failure in
b performance. Lord Cullen, with whose opinion the Lord President (Clyde)
expressly agreed, noted (at 802) the difficulty which can occur in deciding
whether a particular act falls within the ‘purely personal and independent sphere
of life and action’ which an employee may enjoy or within the sphere of service:
‘The question is not to be answered merely by applying the test whether
c the act in itself is one which the servant was employed or ordered or
forbidden to do. The employer has to shoulder responsibility on a wider
basis; and he may, and often does, become responsible to third parties for
acts which he has expressly or impliedly forbidden the servant to do. A
servant is not a mere machine continuously directed by his master’s hand,
but is a person of independent volition and action, and the employer, when
d he delegates to him some duty which he himself is under obligation to
discharge, must take the risk of the servant’s action being misdirected, when
he is, for the time, allowed to be beyond his master’s control. It remains
necessary to the master’s responsibility that the servant’s act be one done
within the sphere of his service or the scope of his employment, but it may
e have this character although it consists in doing something which is the very
opposite of what the servant has been intended or ordered to do, and which
he does for his own private ends. An honest master does not employ or
authorise his servant to commit crimes of dishonesty towards third parties;
but nevertheless he may incur liability for a crime of dishonesty committed
by the servant if it was committed by him within the field of activities which
f the employment assigned to him, and that although the crime was
committed by the servant solely in pursuance of his own private advantage.
The servant is a bad servant who has not faithfully served but has betrayed
his master; still, quoad the third party injured, his dishonest act may fall to be
regarded as an ill way of executing the work which has been assigned to him,
g and which he has been left with power to do well or ill.’
[48] Cases which concern sexual harassment or sexual abuse committed by an
employee should be approached in the same way as any other case where
questions of vicarious liability arises. I can see no reason for putting them into
any special category of their own. In the Scottish case Ward v Scotrail Rlys Ltd
h 1999 SC 255 it appears to have been effectively conceded that the employee’s
conduct was not such as to attract a vicarious liability, but the judge held that in
the circumstances the employee was indulging in an unrelated and independent
venture of his own. In light of the particular facts of the case the concession seems
to have been soundly made. The Canadian case of Bazley v Curry (1999) 174 DLR
j (4th) 45 concerned vicarious liability for acts of sexual abuse carried out by an
employee of a children’s foundation who had been engaged to act as a
parent-figure caring for emotionally troubled children in a children’s home. The
careful and comprehensive discussion of the problem by McLachlin J was
presented in the context of policy considerations, but the essence of the decision
seems to me to lie in the recognition of the existence of a sufficient connection
between the acts of the employee and the employment. This in turn was
44_Lister.fm Page 788 Monday, June 4, 2001 6:11 PM

788 All England Law Reports [2001] 2 All ER

explored by reference to various factors by reference to which the strength of the

a
connection can be established. In that case vicarious liability was held to exist.
On the other hand in Jacobi v Griffiths (1999) 174 DLR (4th) 71 vicarious liability
was not established. In that case the acts, with one minor exception, took place
in the employee’s home outside working hours and away from the club which
was the principal place of employment. That the club had provided an opportunity
to establish a friendship with the children did not constitute a sufficient connection. b
These two decisions seem to be consistent with the traditional approach
recognised in this country.
[49] The Canadian cases were decided after the decision of the Court of
Appeal in Trotman v North Yorkshire CC [1999] LGR 584. The Court of Appeal did
not have the guidance which those cases afford in stressing the importance of c
finding a sufficient connection between the actings of the employee and the
employment. The court proceeded upon the rather more narrow approach of
looking to see if the conduct was an unauthorised way of carrying out a teacher’s
duties. That test, however, as I have already sought to explain, is not to be taken
too precisely. Moreover in light of the way the case was pled the Court of Appeal
felt that they were not able to take account of any duty which the employer might d
have had to take care of the children. Thus they were prevented from treating
the case as comparable with the line of cases like Morris’ case to which I have
already referred. In my view the decision was unsound.
[50] I turn finally to the facts of the present case. It appears that the care and
safekeeping of the boys had been entrusted to the respondents and they in turn e
had entrusted their care and safekeeping, so far as the running of the boarding
house was concerned, to the warden. That gave him access to the premises, but
the opportunity to be at the premises would not in itself constitute a sufficient
connection between his wrongful actings and his employment. In addition to the
opportunity which access gave him, his position as warden and the close contact f
with the boys which that work involved created a sufficient connection between
the acts of abuse which he committed and the work which he had been employed
to do. It appears that the respondents gave the warden a quite general authority in
the supervision and running of the house as well as some particular responsibilities.
His general duty was to look after and to care for, among others, the appellants.
That function was one which the respondents had delegated to him. That he g
performed that function in a way which was an abuse of his position and an
abnegation of his duty does not sever the connection with his employment. The
particular acts which he carried out upon the boys have to be viewed not in
isolation but in the context and the circumstances in which they occurred. Given
that he had a general authority in the management of the house and in the care h
and supervision of the boys in it, the employers should be liable for the way in
which he behaved towards them in his capacity as warden of the house. The
respondents should then be vicariously liable to the appellants for the injury and
damage which they suffered at the hands of the warden.
[51] I agree that the appeal should be allowed. j

LORD HUTTON.
[52] My Lords, I have had the advantage of reading in draft the speech of my
noble and learned friend Lord Steyn. I agree with it and for the reasons which he
has given I, too, would allow this appeal.
44_Lister.fm Page 789 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Hobhouse) 789

LORD HOBHOUSE OF WOODBOROUGH.

a
[53] My Lords, these appeals are described as raising a question of the
vicarious liability for acts of sexual abuse by an employee. Indeed this is how the
question has been described in articles (eg Peter Cane ‘Vicarious Liability for
Sexual Abuse’ (2000) 116 LQR 21; Feldthusen ‘Vicarious Liability for Sexual Torts’
(see Torts Tomorrow: A Tribute to John Fleming (1998)) and in the leading Canadian
b authority Bazley v Curry (1999) 174 DLR (4th) 45. It is true that sexual abuse is a
particularly offensive and criminal act of personal gratification on the part of its
perpetrator and can therefore be easily described as the paradigm of those acts
which an employee could not conceivably be employed to do. It is thus argued
that an employer should never be made vicariously liable for such acts; the
employer should only be held liable where separate personal fault of the employer
c has been proved. This argument succeeded in the Court of Appeal in Trotman v
North Yorkshire CC [1999] LGR 584 which was binding upon the Court of Appeal
in the present cases and was followed. Negligence in deciding to employ Mr
Grain was not proved against the defendants. The argument that there was a
vicarious liability for Mr Grain’s failure to report what had happened to the
d plaintiffs and to other boys whom he had abused was also rejected, a point to
which I will have briefly to revert. Accordingly the Court of Appeal allowed the
defendants’ appeals and entered judgment for the defendants in the actions.
[54] What these cases and Trotman’s case in truth illustrate is a situation where
the employer has assumed a relationship to the plaintiff which imposes specific
duties in tort upon the employer and the role of the employee (or servant) is that
e he is the person to whom the employer has entrusted the performance of that
duty. These cases are examples of that class where the employer, by reason of
assuming a relationship to the plaintiff, owes to the plaintiff duties which are
more extensive than those owed by the public at large and, accordingly, are to be
contrasted with the situation where a defendant is simply in proximity to the
f plaintiff so that it is foreseeable that his acts may injure the plaintiff or his property
and a reasonable person would have taken care to avoid causing such injury. The
category into which the present cases fall is recognised by the agreed facts and the
useful summary of Judge Walker adopted by Swinton Thomas LJ:
‘The defendant admits it had a duty of care towards the plaintiffs. That
g duty of care was to take all reasonable steps to safeguard the plaintiffs (and
other pupils) in their physical, moral and educational development whilst at
the school. In carrying out that duty of care the defendant, a limited
company, necessarily had to appoint a hierarchy of responsible agents …
each of whom had either general or particular responsibilities which bore
upon this duty of care. Mr Grain in particular was responsible for the boys
h
while at Axeholme House …’
The fact that sexual abuse was involved does not distinguish this case from any
other involving the care of the young and vulnerable and the duty to protect
them from the risk of harm.
j [55] The classes of persons or institutions that are in this type of special
relationship to another human being include schools, prisons, hospitals and even,
in relation to their visitors, occupiers of land. They are liable if they themselves
fail to perform the duty which they consequently owe. If they entrust the
performance of that duty to an employee and that employee fails to perform the
duty, they are still liable. The employee, because he has, through his obligations
to his employers, adopted the same relationship towards and come under the
44_Lister.fm Page 790 Monday, June 4, 2001 6:11 PM

790 All England Law Reports [2001] 2 All ER

same duties to the plaintiff, is also liable to the plaintiff for his own breach of duty.
a
The liability of the employers is a vicarious liability because the actual breach of
duty is that of the employee. The employee is a tortfeasor. The employers are
liable for the employee’s tortious act or omission because it is to him that the
employers have entrusted the performance of their duty. The employers’ liability
to the plaintiff is also that of a tortfeasor. I use the word ‘entrusted’ in preference
to the word ‘delegated’ which is commonly, but perhaps less accurately, used. b
Vicarious liability is sometimes described as a ‘strict’ liability. The use of this term
is misleading unless it is used just to explain that there has been no actual fault on
the part of the employers. The liability of the employers derives from their
voluntary assumption of the relationship towards the plaintiff and the duties that
arise from that relationship and their choosing to entrust the performance of
c
those duties to their servant. Where these conditions are satisfied, the motive of
the employee and the fact that he is doing something expressly forbidden and is
serving only his own ends does not negative the vicarious liability for his breach
of the ‘delegated’ duty.
[56] The duty which I have described is also to be found in relation to the loss
of or damage to goods. The leading case in this connection is Morris v C W Martin d
& Sons Ltd [1965] 2 All ER 725, [1966] 1 QB 716, a case upon the liability of a
bailee, already referred to by my noble and learned friend Lord Steyn. A bailor is
a person who entrusts the possession and care of goods to the bailee. It is a legal
relationship giving rise to common law obligations owed by the bailee to the
bailor. Diplock LJ analysed the law: e

‘Duties at common law are owed by one person to another only if there
exists a relationship between them which the common law recognises as
giving rise to such duty. One of such recognised relationships is created by
the voluntary taking into custody of goods which are the property of
another. By voluntarily accepting … the custody of a fur … they brought f
into existence between the plaintiff and themselves the relationship of bailor
and bailee … One of the common law duties owed by a bailee of goods to
his bailor is not to convert them, ie, not to do intentionally in relation to the
goods an act inconsistent with the bailor’s right of property therein … If the
bailee in the present case had been a natural person and had converted the g
plaintiff’s fur by stealing it himself, no one would have argued that he was
not liable to her for its loss; but the defendant bailees are a corporate person.
They could not perform their duties to the plaintiff to take reasonable care
of the fur and not to convert it otherwise than vicariously by natural persons
acting as their servants or agents. It was one of their servants, to whom they h
had entrusted the care and custody of the fur for the purpose of doing work
on it, who converted it by stealing it. Why should they not be vicariously
liable for this breach of their duty by the vicar whom they had chosen to
perform it … They accepted the fur as bailees for reward in order to clean it.
They put [their servant] as their agent in their place to clean the fur and to j
take charge of it while doing so. The manner in which he conducted himself
in doing that work was to convert it. What he was doing, albeit dishonestly,
he was doing in the scope or course of his employment in the technical sense
of that infelicitous but time-honoured phrase. The defendants as his masters
are responsible for his tortious act … I base my decision in this case on the
ground that the fur was stolen by the very servant whom the defendants as
44_Lister.fm Page 791 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Hobhouse) 791

bailees for reward had employed to take care of it and to clean it.’ (See [1965]
a 2 All ER 725 at 734–738, [1966] 1 QB 716 at 731–737.)
Salmon LJ expressed himself similarly, referring to the duties of a bailee. He said
([1965] 2 All ER 725 at 739, [1966] 1 QB 716 at 738): ‘… the act of stealing the fur
was a glaring breach of the duty to take reasonable care to keep it safe—and this
is negligence.’ Doing the opposite of what it is your duty to do is still a breach of
b that duty. My Lords, I feel it necessary to mention this because one of the
arguments which was advanced by the respondents (and which has found some
favour) has been that it cannot be a breach of a duty to take care of a child to abuse
him. It is an exemplary and egregious breach of the servant’s duty both to his
employer and to the child. The appreciation that there are duties involved is at
c the heart of the analysis and the identification of the criteria for the existence or
no of vicarious liability.
[57] The decision in Morris’ case was reasoned applying the principles of
vicarious liability. One of the cases followed was Lloyd v Grace, Smith & Co [1912]
AC 716, [1911–13] All ER Rep 51, which also involved a special relationship
between the defendant solicitors and their client, the plaintiff. Another case
d which was followed was Meux v Great Eastern Ry Co [1895] 2 QB 387, [1895–99] All
ER Rep 710 where the plaintiff was suing the railway company for carelessly
damaging his goods but did not himself have a contract with the company. It is
noteworthy that the conclusion that a duty was owed by the railway company
towards the goods owner was based upon cases which had held that a railway
e company owed a duty of care towards passengers injured by the carelessness of
that company’s employee even though the passenger had bought his ticket from
another company. No distinction was drawn between an employee injuring the
plaintiff and damaging or losing his property. Similar reasoning was adopted in
the leading modern case on gratuitous bailments, Gilchrist Watt & Sanderson
Pty Ltd v York Products Pty Ltd [1970] 3 All ER 825, [1970] 1 WLR 1262, in which
f Lord Pearson giving the judgment of the Privy Council approved and followed
Morris’ case, citing cases on both personal injuries, Foulkes v Metropolitan District
Rly Co (1880) 5 CPD 157, and the loss of or damage to goods, Hooper v London and
North Western Rly Co (1881) 50 LJQB 103. Your Lordships have also been referred
to statements to the same effect in Photo Production Ltd v Securicor Transport Ltd
g [1980] 1 All ER 556, [1980] AC 827, a case of arson in relation to a building. All
these cases illustrate the general proposition that, where the defendant has
assumed a relationship to the plaintiff which carries with it a specific duty towards
the plaintiff, the defendant is vicariously liable in tort if his servant, to whom the
performance of that duty has been entrusted, breaches that duty.
h [58] In Ilkiw v Samuels [1963] 2 All ER 879, [1963] 1 WLR 991, Diplock LJ stated
the law in similar terms to those he was later to use in Morris’ case. It was a
personal injuries case concerning an issue of vicarious liability for the careless
manoeuvring of a lorry by the defendants’ servant. Diplock LJ said:
‘A person who makes use of a vehicle for the purposes of his business is
j under a duty in tort so to control it that it is driven with reasonable care while
being used for that purpose. If he delegates the performance of the acts
which give rise to this duty to his servant, he is vicariously liable if the servant
fails to perform it. In this sense he may be said to delegate the duty though
he cannot divest himself of it, as his continuing vicarious liability shows. The
test whether the master has in this sense delegated the duty to his servant is
whether the servant owes to the master a contractual duty to perform the
44_Lister.fm Page 792 Monday, June 4, 2001 6:11 PM

792 All England Law Reports [2001] 2 All ER

master’s duty owed to his neghbours …’ (See [1963] 2 All ER 879 at 889–890,
a
[1963] 1 WLR 991 at 1005.)
In the same case Diplock LJ encouraged a broad approach to what the duties of
the employee were towards his employer and this approach was expressly
approved by Scarman LJ in Rose v Plenty [1976] 1 All ER 97 at 104, [1976] 1 WLR
141 at 147–148. b
[59] The classic Salmond test for vicarious liability and scope of employment
has two limbs. The first covers authorised acts which are tortious. These present
no relevant problem and the present cases clearly do not fall within the first limb.
The defendants did not authorise Mr Grain to abuse the children in his charge.
The argument of the respondent (accepted by the Court of Appeal) is that Mr Grain’s
acts of abuse did not come within the second limb either: abusing children cannot c
properly be described as a mode of caring for children. The answer to this
argument is provided by the analysis which I have set out in the preceding
paragraphs. Whether or not some act comes within the scope of the servant’s
employment depends upon an identification of what duty the servant was employed
by his employer to perform (Diplock LJ supra). If the act of the servant which d
gives rise to the servant’s liability to the plaintiff amounted to a failure by the
servant to perform that duty, the act comes within ‘the scope of his employment’
and the employer is 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 will be no vicarious liability, hence the use by Salmond and in the e
Scottish and some other authorities of the word ‘connection’ to indicate something
which is not a casual coincidence but has the requisite relationship to the
employment of the tortfeasor (servant) by his employer: Kirby v National Coal
Board 1958 SC 514; Williams v A & W Hemphill Ltd 1966 SC (HL) 31.
[60] My Lords, the correct approach to answering the question whether the
tortious act of the servant falls within or without the scope of the servant’s f
employment for the purposes of the principle of vicarious liability is to ask what
was the duty of the servant towards the plaintiff which was broken by the servant
and what was the contractual duty of the servant towards his employer. The
second limb of the classic Salmond test is a convenient rule of thumb which
provides the answer in very many cases but does not represent the fundamental g
criterion which is the comparison of the duties respectively owed by the servant
to the plaintiff and to his employer. Similarly, I do not believe that it is
appropriate to follow the lead given by the Supreme Court of Canada in Bazley v
Curry (1999) 174 DLR (4th) 45. The judgments contain a useful and impressive
discussion of the social and economic reasons for having a principle of vicarious h
liability as part of the law of tort which extends to embrace acts of child abuse.
But an exposition of the policy reasons for a rule (or even a description) is not the
same as defining the criteria for its application. Legal rules have to have a greater
degree of clarity and definition than is provided by simply explaining the reasons
for the existence of the rule and the social need for it, instructive though that may j
be. In English law that clarity is provided by the application of the criterion to
which I have referred derived from the English authorities.
[61] It follows that the reasoning of the Court of Appeal in Trotman v North
Yorkshire CC [1999] LGR 584 and the present cases cannot be supported. On the
undisputed facts, the present cases satisfy the criteria for demonstrating the
vicarious liability of the defendants for the acts of Mr Grain.
44_Lister.fm Page 793 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Millett) 793

[62] There remains for brief mention the point which was considered in the
a Court of Appeal and had formed the basis of the decision of Judge Walker. Faced
with the binding decision in Trotman’s case, the plaintiffs had sought to rely upon
a failure by Mr Grain to report to his employers what had happened and the
psychological trauma being suffered by the plaintiffs (whom it must be
remembered were already emotionally disturbed). This was an artificial
b argument because it was premised upon the assumption that Mr Grain’s breaches
of duty in abusing the plaintiffs were legally irrelevant. The Court of Appeal were
unwilling to accept this artificiality given that they were not treating the abuse
itself as coming within the scope of Mr Grain’s employment. However, it was
part of both the duty of the carers towards the plaintiffs and of Mr Grain towards
his employers to report to them any incident which was relevant to the health
c and well-being of the plaintiffs: finding 5 in Judge Walker’s list. It follows from
this and what I have previously said about the nature of the duties owed to the
plaintiffs and the principles governing the issue of vicarious liability that the
Court of Appeal were mistaken in not attaching more validity to this way of
putting the plaintiffs’ case. In truth, there were a whole succession of breaches of
d the duty to care for the plaintiffs by Mr Grain. The fact that the defendants might
not have been liable for some of them does not alter the fact that the defendants
would have been liable for the others. All it does is to put the former class of acts
into the same category as acts done by some third party but of which, or of the
consequences of which, Mr Grain was aware. To take one of the hypothetical
judge’s examples, say, there might have been a groundsman at Axeholme House
e and he might have been the abusing party; Mr Grain might have discovered what
had happened and the distress it had caused to the boy but did nothing about it
and did not report the incident to the defendants. The defendants might not be
liable for what the groundsman did; he was employed to look after the grounds,
not to have anything to do with the boys. But the defendants would be liable for
f the breach of Mr Grain who was employed to care for the boys and their welfare.
The liability of the defendants might not be so grave or extensive as if Mr Grain
had been the abuser himself but it would in principle be capable of existing.
[63] Accordingly, for these reasons and for those given by my noble and
learned friend Lord Steyn, I agree that these appeals should be allowed.
g LORD MILLETT.
[64] My Lords, the question in this appeal is whether in principle the owner of
a residential school for boys can, without fault on its part, be held vicariously
liable for indecent assaults carried out by the warden of the school on the boys in
his care. The facts are stated in the speech of my noble and learned friend Lord
h Steyn and I need not repeat them. The case calls for a reconsideration of the
recent decision of the Court of Appeal in Trotman v North Yorkshire CC [1999] LGR
584. More generally it raises in a particularly stark form the question in what
circumstances an employer may be vicariously liable for the deliberate and
criminal wrongdoing of his employee, wrongdoing in which the employee
j indulged for his own purposes and which the employer must be taken to have
expressly or at least impliedly prohibited.
[65] Vicarious liability is a species of strict liability. It is not premised on any
culpable act or omission on the part of the employer; an employer who is not
personally at fault is made legally answerable for the fault of his employee. It is
best understood as a loss-distribution device: see Cane’s edition of Atiyah’s
Accidents, Compensation and the Law (6th edn, 1999) p 85 and the articles cited by
44_Lister.fm Page 794 Monday, June 4, 2001 6:11 PM

794 All England Law Reports [2001] 2 All ER

Atiyah in his monograph on Vicarious Liability in the Law of Torts (1967) p 24. The
theoretical underpinning of the doctrine is unclear. Glanville Williams wrote a
(‘Vicarious Liability and the Master’s Indemnity’ (1957) 20 MLR 220 at 231):
‘Vicarious liability is the creation of many judges who have had different
ideas of its justification or social policy, or no idea at all. Some judges may
have extended the rule more widely, or confined it more narrowly than its
true rationale would allow; yet the rationale, if we can discover it, will b
remain valid so far as it extends.’
Fleming observed (The Law of Torts (9th edn, 1998) p 410) that the doctrine cannot
parade as a deduction from legalistic premises. He indicated that it should be
frankly recognised as having its basis in a combination of policy considerations,
and continued: c

‘Most important of these is the belief that a person who employs others to
advance his own economic interest should in fairness be placed under a
corresponding liability for losses incurred in the course of the enterprise …’
Atiyah Vicarious Liability in the Law of Torts wrote to the same effect. He suggested d
(at p 171): ‘The master ought to be liable for all those torts which can fairly be
regarded as reasonably incidental risks to the type of business he carries on.’
These passages are not to be read as confining the doctrine to cases where the
employer is carrying on business for profit. They are based on the more general
idea that a person who employs another for his own ends inevitably creates a risk
that the employee will commit a legal wrong. If the employer’s objectives cannot e
be achieved without a serious risk of the employee committing the kind of wrong
which he has in fact committed, the employer ought to be liable. The fact that
his employment gave the employee the opportunity to commit the wrong is not
enough to make the employer liable. He is liable only if the risk is one which
experience shows is inherent in the nature of the business. f
[66] While this proposition has never, so far as I am aware, been adopted in so
many words as a test of vicarious liability in any of the decided cases, it does I
think form the unspoken rationale of the principle that the employer’s liability is
confined to torts committed by an employee in the course of his employment. The
problem is that, as Townshend-Smith has observed ((2000) 8 Tort Law Review
108 at 111), none of the various tests which have been proposed to determine this g
essentially factual question is either intellectually satisfying or effective to enable
the outcome of a particular case to be predicted. The danger is that in borderline
situations, and especially in cases of intentional wrongdoing, recourse to a rigid
and possibly inappropriate formula as a test of liability may lead the court to
abandon the search for legal principle. h
[67] In the very first edition of his book on Torts (1907) p 83 Sir John Salmond
wrote:
‘1. A master is not responsible for a wrongful act done by his servant
unless it is done in the course of his employment. It is deemed to be so done
if it is either (a) a wrongful act authorised by the master, or (b) a wrongful j
and unauthorised mode of doing some act authorised by the master.’
(Author’s emphasis.)
This passage has stood the test of time. It has survived unchanged for 21 editions,
and has probably been cited more often than any other single passage in a legal
textbook. Yet it is not without blemish. As has often been observed, the first of
44_Lister.fm Page 795 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Millett) 795

the two alternatives is not an example of vicarious liability at all. Its presence (and
a the word ‘deemed’) may be an echo of the discredited theory of implied authority.
More pertinently, the second is not happily expressed if it is to serve as a test of
vicarious liability for intentional wrongdoing.
[68] In the present case the warden was employed to look after the boys in his
care and secure their welfare. It is stretching language to breaking-point to
b describe the series of deliberate sexual assaults on them on which he embarked as
merely a wrongful and unauthorised mode of performing that duty. In Trotman v
North Yorkshire CC [1999] LGR 584 the employee in question was the deputy
headmaster of a special school run by the local council. He was charged with the
responsibility of caring for a handicapped teenager on a foreign holiday, and he
sexually assaulted the boy. Butler-Sloss LJ asked rhetorically whether that was in
c principle an improper mode of carrying out an authorised act on behalf of his
employer or an independent act outside the course of his employment. She held
that it fell into the latter category, because (at 591):
‘His position of caring for the plaintiff by sharing a bedroom with him gave
him the opportunity to carry out the sexual assaults. But availing himself of
d that opportunity seems to me to be far removed from an unauthorised mode
of carrying out a teacher’s duties on behalf of his employer. Rather it is a
negation of the duty of the council to look after the children for whom it was
responsible’.
In the same case Chadwick LJ agreed that the traditional test was not satisfied. He
e said (at 592–593):

‘I find it impossible to hold that the commission of acts of indecent assault

can be regarded as a mode—albeit, an improper and unauthorised mode—of
doing what, on the case advanced, the deputy headmaster was employed by
the council to do. In the circumstances alleged, [MS] was employed to supervise
f the plaintiff’s welfare while on the holiday in Spain. The commission by him
of acts of indecent assault on a pupil in his charge cannot be regarded as a
way of doing that. Rather, it must be regarded as an independent act of
self-indulgence or self-gratification.’ (My emphasis.)
This antithesis lies at the heart of the present appeal.
g
[69] In a passage which is unfortunately less often cited, however, Sir John
Salmond (Salmond on Torts (1st edn, 1907)) continued his exposition as follows (at
pp 83–84):
‘But a master, as opposed to the employer of an independent contractor, is
h liable even for acts which he has not authorised, provided they are so
connected with acts which he has authorised, that they may rightly be
regarded as modes—although improper modes—of doing them.’
This could, I think, usefully be elided to impose vicarious liability where the
unauthorised acts of the employee are so connected with acts which the employer
j has authorised that they may properly be regarded as being within the scope of
his employment. Such a formulation would have the advantage of dispensing
with the awkward reference to ‘improper modes’ of carrying out the employee’s
duties; and by focussing attention on the connection between the employee’s duties
and his wrongdoing it would accord with the underlying rationale of the doctrine
and be applicable without straining the language to accommodate cases of intentional
wrongdoing.
44_Lister.fm Page 796 Monday, June 4, 2001 6:11 PM

796 All England Law Reports [2001] 2 All ER

[70] But the precise terminology is not critical. The Salmond test, in either
formulation, is not a statutory definition of the circumstances which give rise to a
liability, but a guide to the principled application of the law to diverse factual
situations. What is critical is that attention should be directed to the closeness of
the connection between the employee’s duties and his wrongdoing and not to
verbal formulae. This is the principle on which the Supreme Court of Canada
recently decided the important cases of Bazley v Curry (1999) 174 DLR (4th) 45 and b
Jacobi v Griffiths (1999) 174 DLR (4th) 71 which provide many helpful insights into
this branch of the law and from which I have derived much assistance.
[71] Cases of intentional wrongdoing have always proved troublesome. At
one time it was thought that the employer could not be held vicariously liable for
his employee’s deliberate wrongdoing. This view was not maintained, but even
as late as the beginning of the twentieth century it was regarded as axiomatic that c
an employer could not be vicariously liable for his employee’s dishonest acts
unless they were committed for the benefit of his employer: see Cheshire v Bailey
[1905] 1 KB 237 where the defendant was held not responsible for the theft of his
customer’s goods by his employee because the theft was outside the scope of his
employment. As Salmon LJ explained in Morris v C W Martin & Sons Ltd [1965] 2 d
All ER 725 at 739, [1966] 1 QB 716 at 738–739, this view derived from a
misunderstanding of what Willes J had said in Barwick v English Joint Stock Bank
(1867) LR 2 Exch 259 at 265, [1861–73] All ER Rep 194 at 198. Observing that no
sensible distinction could be drawn between the case of fraud and any other
wrong, he had stated that the general rule was that—
e
‘the master is answerable for every such wrong of the servant or agent as
is committed in the course of the service and for the master’s benefit, though
no express command or privity of the master be proved.’ (My emphasis.)
But this was very different, as Lord Macnaghten pointed out in Lloyd v Grace, f
Smith & Co [1912] AC 716 at 732, [1911–13] All ER Rep 51 at 57, from saying that
a master cannot be liable for the fraud of his servant unless carried out for his
benefit or with his privity. This may be a sufficient condition of liability, but it is
not a necessary one.
[72] The heresy was not exposed until Lloyd’s case, and despite this has proved
remarkably resilient. It took another 50 years until Morris’ case for it to be g
recognised that Cheshire’s case was no longer good law; and regrettable traces of
it appear in Trotman’s case. If the employer is to be absolved from liability in that
case (or this) it cannot be because the acts complained of were ‘independent acts
of self-indulgence or self-gratification’.
[73] In Lloyd’s case a solicitor’s managing clerk defrauded a client of the firm h
by obtaining her instructions to realise her property. He induced her to hand
over the title deeds and to execute conveyances in his favour which he did not
read over or explain to her. They enabled him to sell the property and pocket the
proceeds. The firm was held liable for the fraud even though it was committed
for the clerk’s own benefit. In the course of argument before your Lordships in j
the present case it was accepted that the firm would not have been liable if the
clerk had stolen the contents of his client’s handbag. That is true, for the clerk
would merely have been taking advantage of an opportunity which his employment
gave him. But there was a much closer connection between the clerk’s duties and
his wrongdoing than that. The firm’s liability arose from the fact that throughout
the transaction the fraudulent clerk acted as the representative of the firm, and he
44_Lister.fm Page 797 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Millett) 797

received the custody of the documents of title with the consent of the client given
a because he was acting in that capacity.
[74] In the same year Laski ( in ‘The Basis of Vicarious Liability’ (1916) 26 Yale
Law Journal 105 at 130) had observed that there was no valid a priori reason why
the doctrine of vicarious liability should cease to operate at that border where tort
becomes crime. In England this had already been established: see Dyer v Munday
b [1895] 1 QB 742, [1895–9] All ER Rep 1022. Once this limitation on the operation
of the doctrine is rejected, it is impossible to maintain the fiction that it is based
on any kind of implied authority. An excessively literal application of the Salmond
test must also be discarded. Stealing a client’s property cannot sensibly be
described as an unauthorised mode of dealing with it on her behalf. It is, as
Butler-Sloss LJ put it in Trotman v North Yorkshire CC [1999] LGR 584 at 591, the
c negation of the employer’s duty. Yet the employer may be liable none the less.
[75] In Morris’ case a firm of cleaners was held vicariously liable to a customer
whose fur was stolen by one of its employees. The firm was a sub-bailee for
reward, but the decision was not based on the firm’s own failure to take care of
the fur and deliver it upon termination of the bailment. It was held vicariously
d liable for the conversion of the fur by its employee. Diplock LJ said, that he based
his decision—
‘on the ground that the fur was stolen by the very servant whom the
defendants as bailees for reward had employed to take care of it and to clean
it.’ (See [1965] 2 All ER 725 at 738, [1966] 1 QB 716 at 737; my emphasis.)
e Salmon LJ too ([1965] 2 All ER 725 at 740, [1966] 1 QB 716 at 740), was anxious to
make it plain that the conclusion which he had reached depended on the fact that
the thief was ‘the servant through whom the defendants chose to discharge their
duty to take reasonable care of the plaintiff’s fur’. He added that—
‘A bailee for reward is not answerable for a theft by any of his servants, but
f only for a theft by such of them as are deputed by him to discharge some part
of his duty of taking reasonable care. A theft by any servant who is not
employed to do anything in relation to the goods bailed is entirely outside
the scope of his employment and cannot make the master liable.’ (See [1965]
2 All ER 725 at 740, [1966] 1 QB 716 at 740–741.)
g
The employee’s position gave him the opportunity to steal the fur, but as
Diplock LJ was at pains to make clear ([1965] 2 All ER 725 at 738, [1966] 1 QB 716
at 737), this was not enough to make his employer liable. What brought the theft
within the scope of his employment and made the firm liable was that in the
course of its business the firm had entrusted him with the care of the fur, and he
h stole it while it was in his custody as an employee of the firm.
[76] As my noble and learned friend Lord Steyn has observed, Morris’ case has
consistently been held to be an authority on vicarious liability generally and not
confined to cases of bailment. The case was expressly approved by the Privy
Council in Port Swettenham Authority v T W Wu & Co (M) Sdn Bhd [1978] 3 All ER 337
j at 341, [1979] AC 580 at 591, not altogether surprisingly as the opinion of the board
was delivered by Lord Salmon. That was another case of bailment. But in Photo
Production Ltd v Securicor Transport Ltd [1980] 1 All ER 556, [1980] AC 827, where a
patrolman employed by a security firm deliberately set fire to the premises he was
employed to protect, neither Lord Wilberforce nor Lord Salmon saw any difficulty
in holding the employer vicariously liable on the principle stated in Morris’ case. That
was not a case of bailment. Yet the patrolman was said ([1980] 1 All ER 556 at 569,
44_Lister.fm Page 798 Monday, June 4, 2001 6:11 PM

798 All England Law Reports [2001] 2 All ER

[1980] AC 827 at 852 per Lord Salmon) to be ‘indubitably acting in the course of his
employment’. a
[77] Just as an employer may be vicariously liable for deliberate and criminal
conduct on the part of his employee, so he may be vicariously liable for acts of
the employee which he has expressly forbidden him to do. In Ilkiw v Samuels
[1963] 2 All ER 879, [1963] 1 WLR 991 a lorry driver was under strict instructions
from his employers not to allow anyone else to drive the lorry. He allowed a b
third party, who was incompetent, to drive it without making any inquiry into his
competence to do so. The employers were held vicariously liable for the resulting
accident. Diplock LJ explained ([1963] 2 All ER 879 at 889, [1963] 1 WLR 991 at 1004)
that some prohibitions limited the sphere of employment and others only dealt
with conduct within the sphere of employment. In order to determine into which
category a particular prohibition fell it was necessary to determine what would have c
been the sphere, scope, or course (nouns which he considered to amount to the
same thing) if the prohibition had not been imposed. In a passage which is of
some importance in the present case, he added:
‘As each of these nouns implies, the matter must be looked at broadly, not
dissecting the servant’s task into its component activities—such as driving, d
loading, sheeting and the like—by asking: What was the job on which he was
engaged for his employer? and answering that question as a jury would.’
(See [1963] 2 All ER 879 at 889, [1963] 1 WLR 991 at 1004.)
He reasoned that the job which the driver was engaged to perform was to collect
e
a load of sugar and transport it to its destination, using for that purpose his
employers’ lorry, of which he was put in charge. He was expressly forbidden to
permit anyone else to drive the lorry in the course of performing this job. That
was not a prohibition which limited the scope of his employment, but one which
dealt with his conduct within the sphere of his employment.
[78] The case was followed in Rose v Plenty [1976] 1 All ER 97, [1976] 1 WLR f
141 where despite strict instructions not to do so a milk roundsman employed a
boy to help him deliver milk and let him accompany him on his float. The
employer was held liable for injuries sustained by the boy when he fell off the
float as a result of the roundsman’s negligent driving. Scarman LJ agreed that the
roundsman was certainly not employed to give the boy a lift, and that if one g
confined one’s analysis of the facts to the incident which caused injury to the boy,
then it could be said that carrying the boy on the float was not in the course of his
employment. But quoting with approval ([1976] 1 All ER 97 at 104, [1976] 1 WLR
141 at 147–148) the passage cited above from the judgment of Diplock LJ in Ilkiw v
Samuels [1963] 2 All ER 879 at 889, [1963] 1 WLR 991 at 1004 he adopted a broad
approach to the nature of the roundsman’s employment. His job was to deliver h
milk, collect empties, and obtain payment. Disregarding his instructions he
enlisted the boy’s assistance in carrying out his job. If one asked: why was the boy
on the float the answer was that it was because he was assisting the roundsman
to do his job.
[79] So it is no answer to say that the employee was guilty of intentional j
wrongdoing, or that his act was not merely tortious 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 show that where an employer undertakes the care of a client’s property
and entrusts the task to an employee who steals the property, the employer is
vicariously liable. This is not only in accordance with principle but with the
44_Lister.fm Page 799 Monday, June 4, 2001 6:11 PM

HL Lister v Hesley Hall Ltd (Lord Millett) 799

underlying rationale if Atiyah has correctly identified it. Experience shows that
a the risk of theft by an employee is inherent in a business which involves
entrusting the custody of a customer’s property to employees. But the theft must
be committed by the very employee to whom the custody of the property is
entrusted. He does more than make the most of an opportunity presented by the
fact of his employment. He takes advantage of the position in which the
b employer has placed him to enable the purposes of the employer’s business to be
achieved. If the boys in the present case had been sacks of potatoes and the
defendant, having been engaged to take care of them, had entrusted their care to
one of its employees, it would have been vicariously liable for any criminal
damage done to them by the employee in question, though not by any other
employee. Given that the employer’s liability does not arise from the law of
c bailment, it is not immediately apparent that it should make any difference that
the victims were boys, that the wrongdoing took the form of sexual abuse, and
that it was committed for the personal gratification of the employee.
[80] Employers have long been held vicariously liable in appropriate
circumstances for assaults committed by their employees. Clearly an employer
d is liable where he has placed the employee in a situation where he may be
expected on occasions to have to resort to personal violence: see Dyer v Munday
[1895] 1 QB 742, [1895–9] All ER Rep 1022, where the employer was held vicariously
liable for a criminal assault committed by his employee while attempting to
repossess his employer’s property. Equally clearly the employer is not liable for
an assault by his employee on a customer merely because it was the result of a
e quarrel arising out of his employment: see Warren v Henlys Ltd [1948] 2 All ER
935, where a petrol pump attendant assaulted a customer as a result of a dispute
over payment. The case was decided partly on the ground that the customer had
paid for the petrol and was driving away when he was assaulted, and partly on the
ground that he was assaulted because he had threatened to report the attendant
f to his employer. The reasoning has been criticised, and the better view may be
that the employer was not liable because it was no part of the duties of the pump
attendant to keep order. Attention must be concentrated on the closeness of the
connection between the act of the employee and the duties he is engaged to
perform broadly defined.
[81] In Deatons Pty Ltd v Flew (1949) 79 CLR 370 the owner of a hotel was held
g not to be vicariously liable for an unprovoked assault by a barmaid who threw a
glass of beer into a customer’s face. The ground of decision was that the barmaid
was not in charge of the bar—the publican was close at hand—and she did not
throw the glass in the course of maintaining discipline or restoring order. In the
words of Dixon J (at 381–382), it was—
h
‘an act of passion and resentment done neither in furtherance of the
master’s interests nor under his express or implied authority nor as an incident
to or in consequence of anything the barmaid was employed to do. It was a spontaneous
act of retributive justice. The occasion for administering it and the form it
took may have arisen from the fact that she was a barmaid but retribution
j was not within the course of her employment as a barmaid.’ (My emphasis.)
In other words, the barmaid’s employment gave her the opportunity to wreak
some personal vengeance of her own, but that was all; and it was not enough to
make her employer liable. Had she been in charge of the bar and authorised to
maintain order, the result might well have been different. It would not, in my
opinion, have been enough in itself to exclude the employer’s liability that she
44_Lister.fm Page 800 Monday, June 4, 2001 6:11 PM

800 All England Law Reports [2001] 2 All ER

had been paying off a private score of her own. If so, then there is no a priori
reason why an employer should not be vicariously liable for a sexual assault a
committed by his employee, though naturally such conduct will not normally be
within the scope of his employment.
[82] In the present case the warden’s duties provided him with the opportunity
to commit indecent assaults on the boys for his own sexual gratification, but that
in itself is not enough to make the school liable. The same would be true of the b
groundsman or the school porter. But there was far more to it than that. The
school was responsible for the care and welfare of the boys. It entrusted that
responsibility to the warden. He was employed to discharge the school’s responsibility
to the boys. For this purpose the school entrusted them to his care. He did not
merely take advantage of the opportunity which employment at a residential
school gave him. He abused the special position in which the school had placed c
him to enable it to discharge its own responsibilities, with the result that the
assaults were committed by the very employee to whom the school had
entrusted the care of the boys. It is not necessary to conduct the detailed
dissection of the warden’s duties of the kind on which the Supreme Court of
Canada embarked in Bazley’s case and Jacobi’s case. I would hold the school liable. d
[83] I would regard this as in accordance not only with ordinary principle
deducible from the authorities but with the underlying rationale of vicarious
liability. Experience shows 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 e
if they are in close proximity to them and occupying a position of trust.
[84] I would hold the school vicariously liable for the warden’s intentional
assaults, not (as was suggested in argument) for his failure to perform his duty to
take care of the boys. That is an artificial approach based on a misreading of
Morris’ case. The cleaners were vicariously liable for their employee’s conversion f
of the fur, not for his negligence in failing to look after it. Similarly in the Photo
Production case the security firm was vicariously liable for the patrolman’s arson,
not for his negligence. The law is mature enough to hold an employer vicariously
liable for deliberate, criminal wrongdoing on the part of an employee without
indulging in sophistry of this kind. I would also not base liability on the warden’s
failure to report his own wrongdoing to his employer, an approach which I g
regard as both artificial and unrealistic. Even if such a duty did exist, on which I
prefer to express no opinion, I am 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, of course, necessarily
apply to the duty to report the wrongdoing of fellow employees, but it is not h
necessary to decide this.
[85] I would overrule Trotman’s case and allow the appeal.

Appeal allowed.
j
Dilys Tausz Barrister.