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This case note is regarding the case of Lister and Others (AP) v Hesley Hall Limited.,  UKHL 22. This case was decided by the House of Lords.
The judgement of the case was available on the website of British Parliament, accessed at
The case was heard before Lord Steyn, Lord Clyde, Lord Hutton, Lord Hobhouse of Woodborough and Lord Millett.
The case involved civil law. The specific law that was involved was the law of tort and the vicarious liability of the employer under it.
The material facts of the case are as follows.
The appellants were the residents of a boarding annex of the Wilsic Hall School, Wadsworth, Doncaster between the period of 1979 to 1982. The age of the appellants at the time was between 12 to 15 years. This is a material fact because at the time of their stay in the boarding annex, the appellants were minors.
The boarding house was managed by the warden and his wife. The warden’s wife was disabled. The warden was in charge of ordering the lives of the boys under his care and his responsibilities was diverse and put him in control of the lives of the boys under him. The pocket money of the boys, weekend holiday and evening activities were managed by him. This is a material fact because it evidences the kind of control that the appellants were under. Another important point to consider here is that the boarding house was for emotionally or otherwise disturbed boys. The boarding house served as a place where the boys would be disciplined. This is also a material fact as it evidences the fact that the appellants may be in a disturbed or emotional state of mind at this time, or they had certain behavioural difficulties. Thus, the appellants were vulnerable to exploitation. The warden’s sexual exploitation of the appellants is also a material fact because it is for this act that the appellants have taken action against the employers of the warden.
The principal issue before the court was whether the employer is liable for the unauthorised sexual abuse of the appellants at the hands if the warden.
The principal argument for the appellant was that the warden was the employee of the respondent and as such the respondent was vicariously liable for the sexual abuse by the warden. The appellant also claimed that the employer owed a duty of care to them and failed to take care.
The respondent’s principal argument was that the act done by the warden was not authorised by them at all. Therefore, as per the Salmond test, they were not vicariously liable for the act of the warden as the Salmond test prescribes vicarious liability only if wrongful act was authorised by the master, or a wrongful and unauthorised mode of doing some act was authorised by the master
Although, many cases are mentioned in the individual judgements of the court, the most relevant of these are mentioned here.
Trotman v North Yorkshire County Council  LGR 584, the unauthorized act of the teacher in sexually abusing a student under his care is not an act for which the employer can be held vicariously liable as the liability does not fit into the Salmond test. This case was referred to by both the county court as well as the Court of Appeal. The House of Lords was not bound by the judgement in this case, as the rule of stare decisis binds the courts that are lower or the same as the court which gave the precedent.
Bazley v Curry (1999) (1999) 174 DLR(4th) 45 and Jacobi v Griffiths (1999) 174 DLR(4th) 71 are the two Canadian Supreme Court judgements that were considered by the House of Lords. These can be said to be persuasive precedents as the House of Lords was not bound by these judgements but chose to follow the principle laid down by the Canadian Supreme Court nevertheless. Enunciating a principle of "close connection" the Supreme Court unanimously held liability established in Bazley's case and by a 4 to 3 majority came to the opposite conclusion in Jacobi's case. The House of Lords considered these judgements because the “Supreme Court judgments examine in detail the circumstances in which, though an employer is not "at fault," it may still be "fair" that that it should bear responsibility for the tortious conduct of its employees” (paragraph 11).
Williams v A & W Hemphill Ltd 1966 SC(HL) 31, where the employer was held liable despite doing an act in an unauthorized manner.
Morris v C W Martin & Sons Ltd  1 QB 716, where the court held the employers liable for theft of the appelant’s property.
Racz v Home Office  2 AC 45 is authority for the proposition that the Home Office may be vicariously liable for acts of police officers which amounted to misfeasance in public office.
Photo Production Ltd v Securicor Transport Ltd  AC 827, where the employer would have been liable but for the exclusion clause in the contract which precluded liability.
The principle of vicarious liability has evolved over a period of time. The principle involves a “legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment” (paragraph 14).
The Salmond test is applied to see whether an employer is vicariously liable for the act of the employee and the two elements of the test are that there should be a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by the master (paragraph 15).
The respondents were praying for damages for the sexual abuse suffered by them at the hands of the warden.
The Court decided that the employer was liable for the sexual abuse suffered by the appellants. The court left the damages to be assessed.
The case was decided on the basis of the close connection test and the court held that if there is a close connection between the act authorised by the employer and the tortious act of the warden, then the employer is also liable vicariously for the act of the warden. Here, the court also considered the powers and duties of the warden.
The case was chosen because it is an important precedent for situations where the Salmond test cannot be applied. Particularly, when the act done by the employee is not authorised by the employer, or the act itself is unlawful, then as the Trotman v North Yorkshire County Council case demonstrated, it becomes very difficult to fix liability on the employer. However, there may be situations, where although unauthorised, the tortious act is closely connected to the authorised powers and duties of the employee. In such situations, because the employer has enabled or empowered the employee, therefore, it may be just and reasonable for the employer to be liable for the tortious act of the employee.
This case is important because, it has paved the way for subsequent cases where the employee may do an act in an unauthorized way, but the very carrying out of such act may be enabled or empowered by the employer.
There are two areas of tort law that are involved here, that is, negligence and the concept of vicarious liability. The case is decided by the House of Lords. Therefore, it is a precedent for subsequent cases. It is also relevant that in deciding the court has taken a newer approach to the question of vicarious liability as taken by the Canadian Supreme Court. Therefore, the court has indicated that the Salmond test is no longer adequate to meet all situations where vicarious liability of the employer may arise due to the tortious acts of the employees.
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