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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> ST v North Yorkshire County Council  EWCA Civ 1208 (14 July 1998)
Cite as:  EWCA Civ 1208,  IRLR 98, (1998) 10 Admin LR 573,  LGR 584,  ELR 625,  BLGR 584, (1999) 1 LGLR 61, (1999) 49 BMLR 150,  Ed CR 353
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DARLINGTON COUNTY COURT.
London WC2A 2LL
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE CHADWICK
(By His Mother & Next Friend IT)
|- v -|
|NORTH YORKSHIRE COUNTY COUNCIL|
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
SIMON HAWKSWORTH QC AND MARK GRENYER (instructed by Messrs Jacksons, Middlesborough, TS2 1A) appeared on behalf of the Respondent.
Crown Copyright ©
LADY JUSTICE BUTLER-SLOSS:
"The Defendants are vicariously responsible for the indecent assaults by Stevens upon the plaintiff by reason of the fact that such occurred whilst Stevens was so acting whilst carrying out his supervisory role as a school master in charge of the plaintiff and responsible for his care."
"In this case the Deputy Head was not acting solely as a teacher but on this occasion was effectively in loco parentis in respect of the Plaintiff.
His responsibility was to care for and supervise the Plaintiff so as to ensure his health, safety and welfare.
That, if the allegations be true, he did not do in that he took upon himself to harm the boy by sexually assaulting him.
I am satisfied applying the general principles as set out in paragraph 5.21 of Clerk & Lindsell that the acts of the Deputy head were so connected with his authorised responsibilities that they can be regarded as modes, albeit improper modes, of performing his authorised duties."
I am satisfied that the Deputy Headmaster was vested with a discretion in the supervision of the Plaintiff and his acts were a wrongful exercise of that discretion."
"It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they may rightly be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do,but also for the way in which he does it......On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case, the servant is not acting in the course of his employment but has gone outside of it."
"The liability of the master does not rest merely on the question of authority, because the authority given is generally to do the master`s business rightly; but the law says that if, in course of carrying out his employment, the servant commits an excess beyond the scope of his authority, the master is liable."
"In my judgment, all the evidence here, such as it is, shows that the conduct of the assailants was a reaction to the damage to the door. There is no evidence that it related to some private quarrel or incident which occurred subsequently to and unrelated to the performance of the employee`s duty......
The evidence of the plaintiff to which I have referred, makes it plain that they wished to teach a lesson to the person who had caused that damage. That was the sole purpose of the attack. It was, of course, an unlawful and unauthorised manner of carrying out the duty to which I have referred, but I have no doubt that such is what it was. They were not pursuing their own purpose."
"... before the master can be held to be vicariously liable for the acts of the servant there must be established some nexus other than mere opportunity between the tortious or criminal act of the servant and the circumstances of his employment."
In Irving v Post Office  IRLR 289, a postman wrote a racially offensive message on the back of an envelope addressed to neighbours which was held to be an unauthorised act of personal malevolence. Fox LJ said at page 291:-
"That was not the performance of any duty for which he was employed. His employment provided the opportunity for his misconduct, but the misconduct formed no part of the performance of his duties and was in no way directed to the performance of those duties.......
Save that it was done in working hours, it was unrelated to his duties."
In Makanjuola v Commissioner of Police for the Metropolis  Admin L R 215, Henry J held that the demand for sexual favours by an off-duty policeman who gained entry through the misuse of his warrant card, as a result of which the female occupier submitted to a serious sexual assault, was not made in the course of his employment. Henry J said at page 252:-
"It was a demand for the negation rather than for the performance of police functions.......It was not any sort of exercise of a police officer`s discretion but a clear case of a private independent action, Mr McCarthy acting on a squalid adventure of his own."
"I am persuaded that Mr Allen`s submission is to be preferred, and that there is here no sufficient similarity between the two contexts to justify, on a linguistic construction, the reading of the phrase `course of employment` as subject to the gloss imposed on it in the common law context of vicarious liability."
At page 416 he said in his conclusion:-
"It would be particularly wrong to allow racial harassment on the scale that was suffered by the complainant in this case at the hands of his workmates-treatment that was wounding both emotionally and physically-to slip through the net of employer responsibility by applying to it a common law principle evolved in another area of the law to deal with vicarious responsibility for wrongdoing of a wholly different kind. To do so would seriously undermine the statutory scheme of the Discrimination Acts and flout the purposes which they were passed to achieve."
"If you go through the cases on this difficult subject, you will find that, in the ultimate analysis, they depend on the nature of the duty owed by the master towards the person whose goods have been lost or damaged. If the master is under a duty to use due care to keep goods safely and protect them from theft and depredation, he cannot get rid of his responsibility by delegating his duty to another. If he entrusts that duty to his servant, he is answerable for the way in which the servant conducts himself therein. No matter whether the servant be negligent, fraudulent, or dishonest, the master is liable. But not when he is under no such duty."
The Master of the Rolls concluded at page 728:-
"From all these instances we may deduce the general proposition that when a principal has in his charge the goods or belongings of another in such circumstances that he is under a duty to take all reasonable precautions to protect them from theft or depredation, then if he entrusts that duty to a servant or agent, he is answerable for the manner in which that servant or agent carries out his duty."
"A master is not liable for a tort committed by his servant unless it is committed in the course of the servant`s employment. An act is not done in the course of the servant`s employment if it is one done which is not authorised by the master. But if an authorised act is done in an unauthorised manner it is done in the course of the employment.
In the present case Bonsu was, broadly speaking, authorised to clean the telephones. He was not authorised to use them. The unauthorised use of a telephone cannot properly be regarded as the cleaning of it in an unauthorised manner. It is another and entirely separate act. But it was suggested that the giving of access to the premises and to their contents to Clarity, and through them to Bonsu, in some way amounted to a bailment of the contents or the equivalent. Reliance was placed on the decision of this court in Morris v Martin & Sons Ltd. That is an impossible view of this case. Although Bonsu was no doubt required to clean the telephones carefully, he was required to handle them for that purpose only. He was neither required nor authorised to take custody of them. He would, for example, have been under no duty to prevent a third party from using them."
"In such cases the servant has authority to take care of the goods, and is doing fraudulently what he is employed to do honestly. Even though the pretext for the threat was the information extracted from the plaintiff by Mr McCarthy in the purported performance of his police functions, blackmail,in my judgment, cannot sensibly be regarded simply as a wrongful and unauthorised mode of exercising the police discretion whether to arrest, report, warn or take no further action on the information received. It was not an exercise of that discretion at all, but an adventure of his own."
Whether the bailment for reward cases are to be seen as a category of their own or, as Henry J suggested, the reverse side of honest care of the goods of the employer, from both judgments, it is clear that Morris v Martin has not been applied beyond the bailment line of cases.
I would allow the appeal.
LORD JUSTICE THORPE:
LORD JUSTICE CHADWICK: I agree that this appeal should be allowed. But, in the circumstances that we are differing from the Judge below in a matter of such moment to the plaintiff, I think it right to put my reasons for that conclusion in my own words.
The task which the Judge set himself, as appears from the order which he made on 12 August 1997, was to decide as a preliminary issue whether, if the facts pleaded in paragraphs 1, 2 and 3 in the particulars of claim were established, the defendant Council had a case to answer in response the plaintiff's claim that the Council was vicariously liable for the actions of its employee, Michael Stevens. The facts pleaded were these:
It was on the basis of those allegations of fact that the plea was advanced, in paragraph 4 of the particulars of claim, that the Council was vicariously liable for the indecent assaults:
It is essential to keep in mind that it is not alleged that the Council itself was in breach of any duty which it may have owed to the plaintiff. The only basis of the claim advanced against the Council is vicarious liability for the acts of its employee.
I am satisfied that the claim cannot succeed on that basis. I find it impossible to hold that the commission of acts of indecent assault can be regarded as a mode - albeit, an improper and unauthorised mode - of doing what, on the case advanced, the deputy headmaster was employed by the Council to do. In the circumstances alleged, Michael Stevens was employed to supervise the plaintiff's welfare while on the holiday in Spain. The commission by him of acts of indecent assault on a pupil in his charge cannot be regarded as a way of doing that. Rather, it must be regarded as an independent act of self indulgence or self gratification. It is that element which distinguishes the facts alleged in this case from those in Poland v John Parr and Sons  1 KB 236, Rose v Plenty  1 WLR 1411 and Vasey v Surrey Free Inns Plc (unreported, Court of Appeal, 5 May 1995) -to which we were referred in argument. It is not sufficient to found vicarious liability in the employer that the employment provided the opportunity for the employee to commit the act if the act itself was outside the scope of the employment - see Heasmans v Charity Cleaning Co Ltd  IRLR 286.
The Judge relied on the decision of the Employment Appeal Tribunal in Bracebridge Engineering Ltd v Darby  IRLR 3. The question in that appeal was whether the acts of the appellant's employees were done in the course of their employment for the purposes of section 41 of the Sex Discrimination Act 1975. The Tribunal applied the common law test and concluded that they were. In its subsequent decision in Tower Boot Co Ltd v Jones  IRLR 529, to which the Judge does not seem to have been referred, the Tribunal observed that Bracebridge stretched that test to the limit. I agree. I agree, also, that decisions on the words "in the course of his employment" in section 41 of the Sex Discrimination Act 1975 and section 32(1) of the Race Relations Act 1976 are of no assistance in determining the scope of employment for the purposes of the common law principle of vicarious liability - for the reason given by Lord Justice Waite in Jones v Tower Boot Co Ltd  2 All ER 406, at page 416c-d.
The plaintiff sought to rely on the decision of this Court in Morris v C W Martin & Sons Ltd  1 QB 716. The defendants in that case, who were sub-bailees for reward of a fur stole, were held liable to the plaintiff, the owner of the fur, in circumstances where it was stolen by one of their employees whose duty it was to clean it. Lord Denning, Master of the Rolls, identified the conceptual difficulty of treating the employee's theft as an act done in the course of that which he was employed to do. After describing the cases as "baffling" - see at page 724B - he went on to explain the position in these words, at page 725C-D:
If you go through the cases on this difficult subject, you will find that, in the ultimate analysis, they depend on the nature of the duty owed by the master towards the person whose goods have been lost or damaged. If the master is under a duty to use care to keep goods safely and protect them from theft and depredation, he cannot get rid of his responsibility by delegating his duty to another. If he entrusts that duty to a servant, he is answerable for the way in which the servant conducts himself therein. No matter whether the servant be negligent, fraudulent, or dishonest, the master is liable. But not when he is under no such duty.
Lord Justice Diplock agreed, at page 731D, that:
The important question for our determination is whether the defendants were in breach of any common law duty owed by them to the plaintiff.
He held that the existence of the common law relationship of bailor and bailee for reward gave rise to common law duties; including the duty owed by the bailee not to convert the goods. The servant was the person to whom the defendants had entrusted the performance of the duty which the common law placed upon them as bailees. The servant's theft put the defendants in breach of their own duty not to convert the fur. In those circumstances the defendants could not escape responsibility for the servant's act. As Lord Justice Diplock pointed out, at page 735E-F, it had been decided by the House of Lords in Lloyd v Grace Smith & Co  AC 716:
Whether the act of the servant be honest or dishonest, the ground of the master's liability is: "he [the master] has put the agent in his place to do that class of acts and he must be answerable for the manner in which that agent has conducted himself in doing the business which it was the act of his master to place him in."
Lord Justice Salmon took the same view. He explained the basis for his conclusion at page 740F-741A:
"I am anxious, however, to make it plain that the conclusion which I have reached depends upon Morrissey being the servant through whom the defendants chose to discharge their duty to take reasonable care of the plaintiff's fur. . . . A bailee for reward is not answerable for a theft by any of his servants but only for a theft by such of them as are deputed by him to discharge some part of his duty of taking reasonable care.
The distinction between the line of cases of which Lloyd v Grace Smith & Co  AC 716 and Morris v C W Martin & Sons Ltd  1 QB 716 provide examples and what Lord Justice Diplock described, in Morris, as "the frolicsome coachman line of authority" is that, in the former, the master owes his own duty to the person harmed; in the latter the master owes no duty of his own - see the observations of Lord Denning, Master of the Rolls, in Morris at page 725A-B. Where the master owes his own duty to the person harmed, he cannot escape responsibility by delegating the performance of that duty to the servant. Where the master owes no duty of his own, he is vicariously liable for the servant's act only where the servant can be said to be doing, albeit badly or in an unauthorised manner, that which he is employed to do. The use of the phrase "acts done in the scope or course of his employment" - described as "that infelicitous but time-honoured phrase" by Lord Justice Diplock (ibid, at page 737B) - to explain the master's liability in both classes of case blurs that distinction and may lead to confusion.
There is no allegation in the particulars of claim that the Council itself owed to the plaintiff a duty to ensure that he was free from harm during the Spanish holiday. No doubt there were thought to be good reasons for pleading the case without alleging any duty owed by the Council itself. I express no view on whether such an allegation could be made good. This Court must decide this appeal on the basis that the preliminary issue is defined by the allegations which were before the Judge. It would not be safe to proceed on the basis that the case might have been put in some other way which the plaintiff has not chosen to plead.
Order: Appeal allowed; action dismissed; no order as to costs in relation to the action in the court below; no order as to costs save legal aid taxation; order below set aside; the costs of the appeal to be paid by the Legal Aid Board under Section 18 of the Legal Aid Act; legal aid taxation of the respondent's costs in relation to the appeal. (This order does not form part of the approved judgment)