Development in the Law of Vicarious Liability
The requirement of a sufficient or close connection as a condition in vicarious liability
has been further developed in the context of employment and sexual abuse by the case of Lister v
Hesley Hall Ltd.1 ‘Vicarious liability is a mechanism in tort law by which the defendant is held
liable for a tort committed by someone else. Its principal application is in employment
relationships’.2 Lister1 assisted by previous Canadian decisions ultimately expanded vicarious
liability.
The facts of Lister1 are as follows. Between 1979 and 1982, the claimants were residents
of the boarding annex Axeholme House at Wilsic Hall School. The school and boarding annex
are owned and managed by Hesley Hall Ltd. The company employed Mr. and Mrs. Grain as
warden and housekeeper to take care of the boys living at Axeholme House. The warden was
responsible for the day to day running of Axeholme House. He supervised the boys when they
were not in school. The employers accepted that, unbeknown to them, the warden systematically
sexually abused the appellants in Axeholme House. Neither of the claimants made any complaint
at the time. In the early 1990s, Mr.Grain was sentenced to seven years’ imprisonment for
multiple offenses involving sexual abuse. In 1997 the claimants brought claims for personal
injury against the employers.3
At the court of first instance, Judge Harry Walker from the Dewsbury County Court held
that the defendants were not vicariously liable for the warden’s torts, but that they were
vicariously liable for the warden’s failure to report to them his intentions to commit acts of
abuse.3 The Court of Appeal allowed an appeal by the defendants.4 Applying the Salmond test,
1
[2002] 1 AC (HL).
2
Kristy Horsey, Erika Rackley, Kidner’s Casebook on Torts (15th edn, Oxford University Press 2019) 493.
3
[2002] 1 AC 221 (HL).
4
[2002] 1 AC 222 (HL).
, they held that the warden’s acts could not be regarded as an unauthorized mode of carrying out
his authorized duties. Two of the claimants appealed to the House of Lords. The case was heard
by Lord Clyde, Lord Hutton, Lord Millett, Lord Hobhouse and Lord Steyn who delivered the
judgement.
Since 1907, the Salmond test, developed by John William Salmond has been used to
determine whether an employer could be held vicariously liable. It is as follows: “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 authorized by the master or (b) a wrongful and unauthorized mode of doing some
act authorized by the master”.5 Part (a) of this test is arguably not even a scenario of vicarious
liability. The employer could simply be held liable rather than vicariously liable for authorizing a
wrongful act. It is usually much more difficult to show part (b). An unauthorized mode of doing
an act narrows the potential amount of liability the employer could face.
Trotman v North Yorkshire County Council6 was an authoritative case in the law of
vicarious liability. In this case, the Court Appeal, applying the Salmond test, held the sexual
assaults committed by deputy headmaster on the claimant were not an improper mode of
carrying out the authorized duties of a teacher, but were a negation of those duties and
independent acts outside the scope of his employment. The defendants (employers) could not be
vicariously liable for the sexual assaults.6 The legal principle established resulting was that
sexual abuse is not conduct subject to vicarious liability. Lord Justice Clyde in Lister1 noticed the
court in Trotman6 took a narrow approach in looking to see if the conduct in that case was
unauthorized way of carrying out a teachers duties.7
5
[2002] 1 AC 223 (HL).
6
[1999] LGR 584 (CA).
7
[2002] 1 AC 237 (HL).
The requirement of a sufficient or close connection as a condition in vicarious liability
has been further developed in the context of employment and sexual abuse by the case of Lister v
Hesley Hall Ltd.1 ‘Vicarious liability is a mechanism in tort law by which the defendant is held
liable for a tort committed by someone else. Its principal application is in employment
relationships’.2 Lister1 assisted by previous Canadian decisions ultimately expanded vicarious
liability.
The facts of Lister1 are as follows. Between 1979 and 1982, the claimants were residents
of the boarding annex Axeholme House at Wilsic Hall School. The school and boarding annex
are owned and managed by Hesley Hall Ltd. The company employed Mr. and Mrs. Grain as
warden and housekeeper to take care of the boys living at Axeholme House. The warden was
responsible for the day to day running of Axeholme House. He supervised the boys when they
were not in school. The employers accepted that, unbeknown to them, the warden systematically
sexually abused the appellants in Axeholme House. Neither of the claimants made any complaint
at the time. In the early 1990s, Mr.Grain was sentenced to seven years’ imprisonment for
multiple offenses involving sexual abuse. In 1997 the claimants brought claims for personal
injury against the employers.3
At the court of first instance, Judge Harry Walker from the Dewsbury County Court held
that the defendants were not vicariously liable for the warden’s torts, but that they were
vicariously liable for the warden’s failure to report to them his intentions to commit acts of
abuse.3 The Court of Appeal allowed an appeal by the defendants.4 Applying the Salmond test,
1
[2002] 1 AC (HL).
2
Kristy Horsey, Erika Rackley, Kidner’s Casebook on Torts (15th edn, Oxford University Press 2019) 493.
3
[2002] 1 AC 221 (HL).
4
[2002] 1 AC 222 (HL).
, they held that the warden’s acts could not be regarded as an unauthorized mode of carrying out
his authorized duties. Two of the claimants appealed to the House of Lords. The case was heard
by Lord Clyde, Lord Hutton, Lord Millett, Lord Hobhouse and Lord Steyn who delivered the
judgement.
Since 1907, the Salmond test, developed by John William Salmond has been used to
determine whether an employer could be held vicariously liable. It is as follows: “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 authorized by the master or (b) a wrongful and unauthorized mode of doing some
act authorized by the master”.5 Part (a) of this test is arguably not even a scenario of vicarious
liability. The employer could simply be held liable rather than vicariously liable for authorizing a
wrongful act. It is usually much more difficult to show part (b). An unauthorized mode of doing
an act narrows the potential amount of liability the employer could face.
Trotman v North Yorkshire County Council6 was an authoritative case in the law of
vicarious liability. In this case, the Court Appeal, applying the Salmond test, held the sexual
assaults committed by deputy headmaster on the claimant were not an improper mode of
carrying out the authorized duties of a teacher, but were a negation of those duties and
independent acts outside the scope of his employment. The defendants (employers) could not be
vicariously liable for the sexual assaults.6 The legal principle established resulting was that
sexual abuse is not conduct subject to vicarious liability. Lord Justice Clyde in Lister1 noticed the
court in Trotman6 took a narrow approach in looking to see if the conduct in that case was
unauthorized way of carrying out a teachers duties.7
5
[2002] 1 AC 223 (HL).
6
[1999] LGR 584 (CA).
7
[2002] 1 AC 237 (HL).
