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Case Note on Lister v Hesley Hall Ltd

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This essay examines vicarious liability in depth and the principles established in Lister v Hesley Hall Ltd.

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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).

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Uploaded on
January 14, 2021
Number of pages
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Written in
2020/2021
Type
Essay
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