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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Lister and Others v. Hesley Hall Limited [2001] UKHL 22 (3 May 2001) URL: https://www.bailii.org/uk/cases/UKHL/2001/22.html Cite as: [2002] AC 215, [2001] 2 FCR 97, [2002] 1 AC 215, [2001] IRLR 472, [2001] 1 AC 215, [2001] Emp LR 819, [2001] ICR 665, [2001] UKHL 22, (2001) 3 LGLR 49, [2001] NPC 89, [2001] 2 FLR 307, [2001] ELR 422, [2001] Fam Law 595, [2001] 2 All ER 769, [2001] 2 WLR 1311 |
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Lord Steyn Lord Clyde Lord Hutton Lord Hobhouse of Woodborough Lord Millett
LISTER
AND OTHERS (AP)
(APPELLANTS)
(RESPONDENTS)
ON 3 MAY 2001
LORD STEYN
My Lords,
I. The question
1. 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.
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
behavioural difficulties were sent to the school by local authorities.
Axeholme House is situated about two miles from the school.
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 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 got to and from school. He administered pocket money, organised weekend leave and 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 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 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 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 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.
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, Law of Torts, 9th ed (1936), p 95; Salmond and Heuston, Law of Torts, 21st ed (1996), p 443) as interpreted and applied by the Court of Appeal in Trotman
v
North Yorkshire County Council [1999] LGR 584. The following passage in the judgment of Butler-Sloss LJ, at p 591, reveals the perceived difficulty:
Thorpe LJ agreed with this judgment and Chadwick LJ expressed
himself in materially similar terms. Not surprisingly, the judge felt
compelled to conclude 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:
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.
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
v
North Yorkshire County Council [1999] LGR 584. In this situation counsel for the plaintiffs 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
favour of his clients on the basis of the warden's failure to report
his own conduct. By judgments delivered on 7 October 1999, The Times,
13 October 1999 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:
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
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) (1999) 174 DLR(4th) 45; 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 4 to 3 majority came to the opposite 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, 24. Counsel for the appellants invited your 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 decision in Trotman v
North Yorkshire County Council
[1999] LGR 584. 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
v
North Yorkshire County Council,
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 Trotman
v
North Yorkshire County Council rather than in the cases under consideration.
12. Only if the arguments of the appellants, which seek an overruling of Trotman v
North Yorkshire County Council,
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.
VI.
The perspective of principle.
13. It is right to acknowledge at once that Trotman v
North Yorkshire County Council
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.
14. Vicarious
liability is legal
responsibility imposed on an employer, 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 undue burden on business enterprise": The Law of Torts, 9th ed (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 act authorised
by the master, or (b) a wrongful and unauthorised mode of doing some
act authorised by the master": Salmond on Torts, 1st ed (1907), p 83; and Salmond and Heuston on Torts, 21st ed (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 said (Salmond on Torts, 1st ed, 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 Railway Co v
Lockhart [1942] AC 591, 599 (Salmond on Torts, 9th ed, p 95) and in Racz
v
Home Office [1994] 2 AC 45, 53 (Salmond and Heuston, Laws of Tort, 19th ed (1987), pp 521-522; 20th ed (1992), p 457). Salmond's explanation is the germ of the close connection test adumbrated by the Canadian Supreme Court in Bazley
v
Curry, 174 DLR(4th) 45 and Jacobi
v
Griffiths, 174 DLR(4th) 71.
16. It is not necessary to embark on a
detailed examination of the development 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 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 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
it was thought that
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
v
Grace, Smith & Co
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
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 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 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 p 46:
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 Morris
v
C W Martin & Sons
Ltd
[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 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, at pp 736-737:
Salmon LJ held, at p 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 employee had been
given custody of the fur. Morris's 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 ed (1991), pp 424-425 treats Morris's
case as an authority on
vicarious
liability beyond bailment. He states
that "if a television repairman steals a television set he is 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 [1979] AC 580 the Privy Council expressly approved Morris's case in respect of
vicarious
liability as explained by Diplock and Salmon LLJ.
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] 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 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 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 explored in Rose
v
Plenty [1976] 1 WLR 141.
The Court of Appeal held that a milkman who deliberately disobeyed his
employers' order not to allow children to help on his rounds did not go
beyond his course of employment in allowing a child to help him. The
analysis in this decision shows how the pitfalls of terminology must be
avoided. Scarman LJ said, at pp 147-148:
If this approach to the nature of employment is adopted, it is not
necessary to ask 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 were committed in the time and on the premises of the
employers while the warden was also busy caring for the children.
VII.
The correctness of Trotman
v
North Yorkshire County Council
21. It is now opportune to take a closer look at the Court of Appeal decision in Trotman v
North Yorkshire County Council [1999] LGR 584. The appeal was from a decision on a preliminary issue arising
on the pleadings. The pleaded facts were as follows, at p 592:
Accordingly, it was alleged, the council was vicariously
responsible
because the indecent assaults were committed by MS "whilst carrying out
his supervisory role as a schoolmaster in charge of the plaintiff and
responsible for his care". No breach of duty by the council was
alleged. Chadwick LJ further observed, at p 594:
Butler-Sloss LJ may have been influenced by similar considerations
for at the end of her judgment she observed, at p 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, 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
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:
Lord Keith of Kinkel and Lord Scarman expressed agreement with Lord Wilberforce. In a separate speech Lord Salmon observed, at p 852:
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,:
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:
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:
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:
As regards the second of these two cases the text continues:
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:
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:
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:
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:
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:
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 [1999] 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
[1966] 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.
LORD HUTTON
My Lords,
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
My Lords,
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
[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 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
[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, at pp 731-737:
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 [1912] 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 [1895] 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
[1970] 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 [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.
58. In Ilkiw v
Samuels [1963] 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:
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 [1975] 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 [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.
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.
LORD MILLETT
My Lords,
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
[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 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:
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 [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 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.
69. In a passage which is unfortunately less often cited, however, Sir John Salmond (Salmond on Torts, 1st ed) continued his exposition as follows, at pp 83-84:
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 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.
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 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 174 DLR(4th) 45 and Jacobi
v
Griffiths 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 20th century it was regarded as axiomatic that 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
[1966] 1 QB 716, 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, 265. 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
But this was very
different, as Lord Macnaghten pointed out in Lloyd
v
Grace, Smith & Co [1912] AC 716,
732, 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 v
Grace, Smith & Co, and despite this has proved remarkably resilient. It took another 50 years until Morris
v
C W Martin & Sons
Ltd
[1966] 1 QB 716 for it to be recognised that Cheshire
v
Bailey [1905] 1 KB 237 was no longer good law; and regrettable traces of it appear in Trotman
v
North Yorkshire County Council
[1999] LGR 584. 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 v
Grace, Smith & Co [1912] AC 716
a solicitor's managing clerk defrauded a client of the firm 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 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 received the
custody of the documents of title with the consent of the client given
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, 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
[1895] 1 QB 742. 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 County Council [1999] LGR 584, 591, the negation of the employer's duty. Yet the employer may be liable nonetheless.
75. In Morris v
C W Martin & Sons
Ltd
[1966] 1 QB 716 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
liable for the conversion of the fur
by its employee. Diplock LJ said, at p. 737, that he based his decision:
Salmon LJ too, at p 740, was anxious to make it plain that the conclusion which he had reached depended on the fact that the thief was
He added, at pp 740-741, that
The employee's position gave him the opportunity to steal the fur, but as Diplock LJ was at pains to make clear, at p. 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 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 v
Martin
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
[1979] AC 580, 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] 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
v
Martin. That was not
a case of bailment. Yet the patrolman was said (per Salmon LJ, at p
852) to be "indubitably acting in the course of his employment."
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] 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 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, at p. 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 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:
He reasoned that the job which the driver was engaged to perform was to collect 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 WLR 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 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, at pp 147-148 the
passage cited above from the judgment of Diplock LJ in Ilkiw
v
Samuels
[1963] 1 WLR 991, 1004 he adopted a broad approach to the nature of the
roundsman's employment. His job was to deliver 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 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 underlying rationale if Atiyah has
correctly identified it. Experience shows that 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 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 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 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, 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 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 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 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 pp 381-382 it was:
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 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
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 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 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 and Jacobi. I would hold the school liable.
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 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
v
Martin.
The cleaners were
vicariously
liable for their employee's conversion of
the fur, not for his negligence in failing to look after it. Similarly
in Photo Production
v
Securicor Transport
Ltd
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 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 necessary to decide this.
85. I would overrule Trotman v North Yorkshire County Council [1999] LGR 584 and allow the appeal.