Judgments - Lister and Others (AP) v Hesley Hall Limited

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    22. The Court of Appeal treated the Morris v C W Martin & Sons Ltd [1966] 1 QB 716 line of authority as applicable only 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's case cannot be so easily dismissed. It is only necessary to add that in Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 the House of Lords took the view that the principles enunciated in Morris's case by Diplock and Salmon LJ 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 only a small fire or burn down the whole factory: see at p 840D. 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, at p 846:

    "it could be put upon a vicarious responsibility for the wrongful act of Musgrove - viz, starting a fire on the premises: Securicor would be responsible for this upon the principle stated in Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 739."

Lord Keith of Kinkel and Lord Scarman expressed agreement with Lord Wilberforce. In a separate speech Lord Salmon observed, at p 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 by their servant, Musgrove, whilst indubitably acting in the course of his employment: Morris v C W Martin & Sons Ltd [1966] 1 QB 716."

It is therefore plain that the Court of Appeal in Trotman v North Yorkshire County Council [1999] LGR 584 erred in treating Morris's 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, at p 591, that the sexual assaults were "far removed from an unauthorised mode of carrying out a teacher's duties on behalf of his employer" Chadwick LJ, at pp 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 . . . 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,174 DLR(4th) 45 McLachlin J criticised the decision in Trotman v North Yorkshire County Council in the following terms, at p 57, para 24,:

    "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 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.

    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, 432-433. Butler-Sloss LJ considered this analogy. In the critical paragraph of her judgment, which I have already quoted in full, she stated, at p 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 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 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": Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 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.

    25. In my view the approach of the Court of Appeal in Trotman v North Yorkshire County Council [1999] LGR 584 was 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 demanded by his employment. The connection between the employment and the torts was very close. I would overrule Trotman v North Yorkshire County Council.

    26. It is not necessary to consider case law on the words "in the course of his employment" which are to be found in section 32(1) of the Race Relations Act 1976 and section 41 of the Sex Discrimination Act 1975.

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 v Curry, 174 DLR(4th) 45 and Jacobi v Griffiths, 174 DLR(4th) 71. 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 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 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.

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 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. 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 in favour of the appellants. Damages are to be assessed.

LORD CLYDE

My Lords,

    31. 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 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 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 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 County Council [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 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 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 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 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, 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, imperfectly defined, and changing its shape before our eyes under the impact of changing social and political conditions". Holmes (The Common Law, ch 1, p 5 in the 41st printing of 1951), noting how rules may survive the customs or beliefs or needs which established them, described the situation more generally:

    "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."

    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 & Chemical Co Ltd v Jones [1956] AC 627, 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 Industries Ltd v Shatwell [1965] AC 656, 685, "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 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, p 443. The passage was of course drafted before the decision in Lloyd v Grace, Smith & Co [1912] AC 716 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 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:

    "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 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, at p 84, where he states:

    "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 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 & Lindsell's Law of Torts, 4th ed (1906), p 75 where the 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, and to Heiton & Co v M'Sweeney [1905] 2 IR 47, in which that decision was recognised and adopted. Sanderson v Collins 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 coachman's actions. Collins MR observed, at p 632 "If the servant in doing any act breaks the connection of 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 SC 514, 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, 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 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 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 which I have already referred and to Lord Thankerton's approval of that passage in Canadian Pacific Railway Co v Lockhart [1942] AC 591, 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 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 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" 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 Railway Co v Lockhart, at p 599, where reference was made to the observation by Lord Dunedin in Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 , a case under the Workmen's Compensation Act 1906, that, at p 67: "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 the purpose of the provision may call for an approach and a solution which may 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] ICR 254.

    41. It was observed by the Lord President in Kirby v National Coal Board 1958 SC 514, 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 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 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, 67 to which I have already referred has to be drawn, namely, 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] 1 WLR 991, 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, 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 answering that question as a jury would."

Thus in Rose v Plenty [1976] 1 WLR 141 the employer was held liable where the prohibitions against the milk roundsman giving others lifts on his float and against employing others to help him in the delivery of the milk were regarded as prohibitions relating to the conduct of the work and not as limiting 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 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] 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 quality of the act and the connection with the employment have to be assessed 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 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 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 purpose unconnected with the employer's business, when, to use the language of Parke B in Joel v Morison (1834) 6 C & P 501, 503, 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 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 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 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 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 [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 wrongdoing in converting it. In Photo Production Ltd v Securicor Transport Ltd [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.

    47. In Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 SC 796, 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 performance. Lord Cullen, with whose opinion the Lord President (Clyde) expressly agreed, noted, at p 502, 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 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 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 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 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, and which he has been left with power to do well or ill."

 
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