Lister v Hesley Hall Ltd [2001] UKHL 22

The warden of a school for children with behavioural difficulties sexually abused pupils. The House of Lords held the school vicariously liable for his intentional, criminal acts, establishing a 'close connection' test between the torts and the employment context.

Facts

Hesley Hall Ltd, the appellant, operated a residential school for children with emotional and behavioural difficulties. Mr Neville Farrer Grain was employed as the warden of a boarding house attached to the school. His duties involved the day-to-day care of the children residing in the house. The respondents were former pupils who, during their time at the school, were systematically sexually abused by Mr Grain on the school premises. Grain was subsequently convicted of criminal offences and imprisoned. The claimants brought an action against the school, arguing that it was vicariously liable for the abuse committed by its employee, Mr Grain.

The trial judge found the school was not vicariously liable, a decision upheld by the Court of Appeal. The reasoning was based on the traditional test for vicarious liability (the ‘Salmond test’), which required the employee’s wrongful act to be an unauthorised mode of performing an authorised act. The Court of Appeal concluded that sexual assault could not be considered an improper mode of carrying out a school warden’s duties.

Issues

The central legal issue before the House of Lords was whether an employer could be held vicariously liable for intentional and criminal wrongs, specifically sexual assaults, committed by an employee. The court had to determine the correct legal test for establishing vicarious liability in such cases and whether Mr Grain’s acts were sufficiently connected to his employment to impose liability on Hesley Hall Ltd.

Judgment

The House of Lords unanimously allowed the appeal, finding the school vicariously liable for Mr Grain’s actions. Their Lordships held that the traditional ‘Salmond test’ was too narrow for cases involving intentional wrongdoing and introduced a new, broader test.

The ‘Close Connection’ Test

Lord Steyn, in his leading judgment, rejected the rigid application of the Salmond test and formulated a more modern approach. He stated that the primary question should be one of policy and fairness, centred on the connection between the wrongdoing and the nature of the employment.

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.

Applying this test, Lord Steyn reasoned that the employer had entrusted the care of the children to the warden. Mr Grain’s employment gave him the opportunity to commit the abuse, and his torts were inextricably interwoven with his duties of care. The wrongful acts were not seen as independent of his employment but as a gross abuse of the position and authority given to him by the employer. The creation of this risk was a key factor in finding it fair and just to impose liability.

Alternative Formulations

Other judges provided slightly different but complementary formulations. Lord Clyde emphasised that the focus should not be on the specific wrongful act in isolation but on its connection to authorised acts.

What has to be answered is the question whether the employee’s tort was so closely connected with the acts he was authorised to do that the wrongful act may fairly be considered as a mode, albeit an improper mode, of doing them.

Lord Millett highlighted that the employer’s liability arises because the employee is acting in a role where he is exercising the authority and responsibilities of the employer. The employee was not ‘on a frolic of his own’ but was abusing the very position of trust he held on behalf of his employer.

Implications

The decision in Lister v Hesley Hall Ltd is a landmark case in the law of tort. It significantly broadened the scope of vicarious liability, particularly for intentional torts committed by employees. By replacing the restrictive Salmond test with the more flexible ‘close connection’ test, the House of Lords adapted the law to provide a remedy for victims of abuse and other intentional wrongs in institutional settings. The decision emphasised that employers who entrust vulnerable individuals to the care of their employees bear the risk that the employees may abuse that trust. This principle has had profound consequences for organisations such as schools, care homes, and religious bodies, reinforcing their duty to protect those in their care and their potential liability when they fail to do so through the actions of their employees.

Verdict: The appeal was allowed. The employer, Hesley Hall Ltd, was held to be vicariously liable for the sexual assaults committed by its employee.

Source: Lister v Hesley Hall Ltd [2001] UKHL 22