|Judgments - Lister and Others (AP) v Hesley Hall Limited
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 Railways Ltd 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 174 DLR(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 explored by reference to various factors by reference to which the strength of the connection can be established. In that case vicarious liability was held to exist. On the other hand in Jacobi v Griffiths 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. 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 County Council  LGR 584. The Court of Appeal did not have the guidance which those cases afford in stressing the importance of 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 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 v C W Martin & Sons Ltd  1 QB 716 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 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 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 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 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.
52. 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.
LORD HOBHOUSE OF WOODBOROUGH
53. 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" 116 LQR 21; Feldthusen, "Vicarious Liability for Sexual Torts", Torts Tomorrow: A Tribute to John Fleming (1998) and in the leading Canadian authority Bazley v Curry 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 has been proved. This argument succeeded in the Court of Appeal in Trotman v North Yorkshire County Council  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 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 he is the person to whom the employer has entrusted the performance of those duties. 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 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 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.
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 same duties to the plaintiff, is also liable to the plaintiff for his own breach of duty. 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. 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 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 & Sons Ltd  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, at pp 731-737:"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 into existence between the plaintiff and themselves the relationship of bailor and bailee " (p 731) "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." (p 732) "If the bailee in the present case had been a natural person and had converted the 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 to one of their servants to whom they had entrusted the custody and care of the fur for the purpose of doing work upon 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? " (pp 732-733) "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 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." (pp 736-737) "I base my decision in this case 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 clean it." (p 737)
Salmon LJ expressed himself similarly, referring to the duties of a bailee. He said, at p 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 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 the heart of the analysis and the identification of the criteria for the existence or no of vicarious liability.
57. The decision in Morris v C W Martin & Sons Ltd was reasoned applying the principles of vicarious liability. One of the cases followed was Lloyd v Grace, Smith & Co  AC 716, which also involved a special relationship between the defendant solicitors and their client, the plaintiff. Another case which was followed was Meux v Great Eastern Railway Co  2 QB 387 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 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 and Sanderson Pty Ltd v York Products Pty Ltd  1 WLR 1262, in which Lord Pearson giving the judgment of the Privy Council approved and followed Morris v Martin, citing cases on both personal injuries, Foulkes v Metropolitan District Railway Co (1880) 5 CPD 157, and the loss of or damage to goods, Hooper v London & North Western Railway Co (1881) 50 LJQB 103. Your Lordships have also been referred to statements to the same effect in Photo Production v Securicor  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.
58. In Ilkiw v Samuels  1 WLR 991, Diplock LJ stated the law in similar terms to those he was later to use in Morris v Martin. 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, at p 1005:"A person who makes use of a vehicle for the purpose of his business is under a duty in tort so to control it so 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 those acts which give rise to the master's duty owed to his neighbours."
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  1 WLR 141, 147-148.
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 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 sup.) If the act of the servant which 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 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 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 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 174 DLR(4th) 45. The judgments contain a useful and impressive discussion of the social and economic reasons for having a principle of vicarious 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 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 County Council  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.
62. There remains for brief mention the point which was considered in the 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 (who it must be remembered were already emotionally disturbed). This was an artificial 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 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 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 judge's hypothetical examples, say, there might have been a groundsman at Axeholme House 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 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.
64. 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 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 County Council  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 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 ed (1999), p 85 and the articles cited by Atiyah in his monograph on Vicarious Liability in the Law of Torts, at p 24. The theoretical underpinning of the doctrine is unclear. Glanville Williams wrote ("Vicarious Liability and the Master's of Indemnity" (1957) 20 MLR 220, 231):
Fleming observed (The Law of Torts, 9th ed (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:
Atiyah, Vicarious Liability in the Law of Torts wrote to the same effect. He suggested, 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 o 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 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.
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, 111), none of the various tests which have been proposed to determine this 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.
67. In the very first edition of his book on Torts Sir John Salmond wrote, at p 83:
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 the two alternatives is not an example of vicarious liability at all. Its presence (and 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 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 County Council  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 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 p 591:
In the same case Chadwick LJ agreed that the traditional test was not satisfied. He said, at pp 592-593:
This antithesis lies at the heart of the present appeal.