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«Comments It is not an understatement to say that this is the most important decision on vicarious liability ever handed down by the House of Lords. ...»

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Lister v Hesley Hall Ltd

[2001] UKHL 22, [2002] 1 AC 215, [2001] 2 WLR 1311, [2001] 2 All

ER 769 HL

Summary

The defendants ran Axelholme House, which was attached to Wilsic Hall School in

Doncaster. Local authorities would send children to the school and they would board

at Axelholme House. The defendants employed Mr and Mrs Grain to run the house

and maintain discipline. The claimants stayed at Axelholme House between 1979 and

1982. During that time they were sexually abused by Mr Grain. They sued the defendants, claiming that the defendants were vicariously liable in respect of the torts committed by Mr Grain when he sexually abused the claimants. The Court of Appeal dismissed the claimants’ actions on the grounds that Mr Grain was not acting in the course of his employment by the defendants when he sexually abused the claimants.

The House of Lords reversed the Court of Appeal’s decision, holding that because there was a “close and direct” connection between what Mr Grain was employed to do and Mr Grain’s sexual abuse of the claimants, the defendants were vicariously liable in respect of the torts committed by Mr Grain when he sexually abused the claimants.

Comments It is not an understatement to say that this is the most important decision on vicarious liability ever handed down by the House of Lords. It’s unfortunate, then, that the decision is so badly flawed. Two criticisms may be made. First, the reasoning underlying the decision is sloppy, to say the least. Second, the decision is productive of huge uncertainty in the law. Let’s take each criticism in turn.

(1) The first criticism. Let’s begin by making clear the distinction between personal liability and vicarious liability. If A commits a tort in relation to B and as a result is held liable to pay damages to B, we say that A is personally liable to pay damages to B. If A commits a tort in relation to B and as a result an innocent third party, C, is held liable to pay damages in relation to B, we say that that C is vicariously liable to pay damages to B; or we say that C is vicariously liable in respect of A’s tort. So if I beat you up and am held liable to pay you damages, that is an obvious example of personal liability. And if you beat someone else up and I am held liable to pay damages to that someone else then that is an obvious example of vicarious liability.

Now – consider this situation. You ask me to look after some valuables of yours while you go away on business. I agree to look after them but then – because I have to go on holiday – I hand them over to T and ask him to look after them. T takes delivery of the valuables and then he carelessly loses them. Okay – in this situation, you’ll be entitled to sue me for damages. Is this an example of personal liability or vicarious liability? It looks like vicarious liability, doesn’t it? I’m being held liable not because I committed a tort in relation to you, but because T committed a tort in relation to you when he carelessly lost the valuables. Wrong – it’s an example of personal liability. I’m held liable to pay you damages because I committed a tort in relation to you in this situation.

How come? Well, when I agreed to look after your valuables I owed you a duty to take reasonable steps to ensure their safety. Now this duty is what’s called non-delegable. What that means is that if I hand your valuables over to someone else to look after them – if I, in other words, delegate the job of looking after the valuables to someone else – and as a result of that someone else’s carelessness the valuables are lost, I am treated as though I carelessly lost the valuables. In other words, I’m held to have breached the duty I owed you to take reasonable steps to safeguard your valuables and am held liable in the normal way to pay you damages to compensate you for the result of my breach. So, in the situation we’ve been considering – where T carelessly lost your valuables that you gave me to look after and that I gave T to look after – when I’m held liable to pay you damages, I’m personally liable to pay you damages. I’m held liable to pay you damages because I committed a tort in relation to you in the situation we’re considering – I breached the duty I owed you to take reasonable steps to safeguard your valuables. The law on vicarious liability is completely irrelevant here – I’m not held liable to pay you damages because T committed a tort in relation to you for which I’m vicariously liable.

The same analysis holds if T steals the valuables, rather than carelessly losing them. I’m held liable to pay you damages but I’m not held liable to pay you damages because T committed a tort in stealing the valuables and I’m vicariously liable in respect of that tort. No – I’m held liable to pay you damages because I breached the duty I owed you to take reasonable steps to safeguard your valuables. That duty was a non-delegable one; I gave the job of looking after the valuables to T; and when T failed to take reasonable steps to safeguard the valuables (quite the opposite: he stole them), he put me in breach of the duty I owed you to take reasonable steps to safeguard your valuables.

Now – it seems that the House of Lords in Lister was completely incapable of grasping this point; that my liability in the situations considered in the last two paragraphs is an example of personal liability rather than vicarious liability. So – they considered: What is the position if A gives some goods to B to look after and B entrusts them to his employee, C, and C steals the goods? Well – B will be held liable to pay A damages. Why? Because he’s vicariously liable in respect of the tort committed by C in stealing the goods. (Wrong: he’s held personally liable because C put B in breach of the non-delegable duty that he owed A to take reasonable steps to safeguard A’s goods.) Why is he held vicariously liable? Well – because there’s a “close and direct” connection between what C was employed to do and the tort committed by C in stealing the goods. Conclusion: an employer will be held vicariously liable in respect of a tort committed by an employee if there is a “close and direct” connection between what the employee was employed to do and the tort committed by the employee. Computer programmers have a term for this – ‘garbage in, garbage out’ (‘GIGO’ for short). The House of Lords reached a garbage conclusion in Lister (that an employer will be vicariously liable in respect of a tort committed by his employee if there was a “close and direct” connection between what the employee was employed to do and the tort committed by the employee) because their reasoning was based on a garbage premise (that B’s liability in the above situation is an example of vicarious liability rather than personal liability).





(2) The second criticism. Now – before Lister was decided the way it was, the traditional test for determining whether an employer would be vicariously liable in respect of a tort committed by his employee was this: the employer would be vicariously liable if the employee did something he was employed to do by committing that tort. (This is the ‘Salmond test’ for vicarious liability.) (Of course, on this test, there was no way the defendants should have been held vicariously liable in respect of the torts committed by their employee, Mr Grain, in sexually abusing the children in his care – there’s no way Grain did something he was employed to do by sexually abusing the children.) Lord Steyn criticised the traditional test on the ground that “it does not cope ideally” with cases of intentional wrongdoing. Lord Millett expressed much the same criticism when he said that the test was “not happily expressed if it is to serve as a test of vicarious liability for intentional wrongdoing”. Okay – that may be right. However, the one thing you could say in favour of the traditional test is that it was fairly straightforward to apply – even in cases of intentional wrongdoing which did not involve deceit. So, for example, in Poland v John Parr & Sons [1927] 1 KB 236, a carter, an employee of the defendants, was walking beside one of the defendants’ wagons as it transported sugar through the streets of Liverpool. Thinking that the plaintiff was trying to steal some sugar from the wagon, the carter hit the plaintiff.

Were the defendants vicariously liable in respect of the carter’s battery? Applying the traditional test, the answer is: yes, they were – the carter did something he was employed to do (defend the defendants’ property) by hitting the plaintiff. In Keppel Bus Co v Sa’ad bin Ahmed [1974] 3 WLR 1082, a bus conductor – who was employed by the defendants – hit a passenger who told him off for abusing another passenger. Were the defendants vicariously liable in respect of the bus conductor’s battery? Applying the traditional test, the answer is: no they weren’t – the bus conductor didn’t do anything he was employed to do by hitting the passenger.

Now – thanks to the decision in Lister – we should no longer ask: Did the employee do something he was employed to do by committing the tort in question?

We should ask: Was there a sufficiently “close and direct” connection between what the employee was employed to do and the tort committed by the employee? Does anyone seriously think that this test is going to be as straightforward to apply as the traditional test? How do you tell whether there was a sufficiently “close and direct” connection between the bus conductor’s battery in the Keppel case and what he was employed to do? The House of Lords in Lister provided very little guidance on how we should apply the test. All their Lordships were agreed that the fact that an employee was given the opportunity to commit a tort by virtue of the fact that he was employed to do what he was employed to do would not be enough to give rise to a “close and direct” connection between the employee’s tort and what he was employed to do. Lord Clyde remarked of Mr Grain: “the opportunity to be at the premises [where he committed his acts of sexual abuse] would not in itself constitute a sufficient connection between his wrongful actings [sic] and his employment”. Lord Millett made the same point: “In the present case [Mr Grain’s] duties provided him with an 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”.

So what was it about the case in Lister which meant that there was a sufficiently “close and direct” connection between the torts committed by Mr Grain and what he was employed to do. This is what Lord Steyn said: “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”. Lord Clyde said this: “[Mr Grain’s] 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”. And this is what Lord Millett had to say: “[Mr Grain] 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”.

This is woeful stuff: what sort of guidance will this provide future courts that have to decide whether there was a sufficiently “close and direct” connection between what an employee was employed to do and a tort that was committed by the employee? Lord Steyn suggested in Lister that anyone wanting guidance on how the “close and direct” connection test should be applied should look at the Supreme Court of Canada’s decisions in Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71 in which this test for vicarious liability was first formulated and applied. But that is hardly reassuring: in Jacobi v Griffiths, the judges of the Supreme Court of Canada divided four to three on how to apply their “close and direct” connection test for vicarious liability to a case where an employee who worked in a children’s club sexually assaulted two members of the children’s club at his home. Four of the judges thought there wasn’t a sufficiently “close and direct” connection between what the employee was employed to do and his sexually assaults on the children to find the owners of the children’s club vicariously liable in respect of the employee’s sexual assaults. Three of the judges thought there was.

All in all, the new test for vicarious liability propounded by the House of Lords in Lister – and it is new, however much their Lordships might try to pretend otherwise (see paras [15] and [69] of the Lister decisions for some spectacular abuses of language perpetrated by Lords Steyn and Millett respectively in an attempt to convince us that their test for vicarious liability is nothing new) – can only be productive of massive uncertainty and a great deal of litigation in future years.

(3) What should the House of Lords have done? So – how should the House of Lords have decided the Lister case? Well – they should have retained the traditional test for determining whether an employer is vicariously liable in respect of a tort committed by his employee and dismissed the vicarious liability claim on the ground that there was no way Mr Grain did something he was employed to do by sexually abusing the claimants.

But they could then have found the defendants personally liable to compensate the claimants for the sexual abuse that they suffered at the hands of Mr Grain. They could have reasoned in the following way. When the defendants took the claimants in, they owed them a duty to take reasonable steps to ensure their safety.



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