Vicarious liability

The House of Lords has held that the test for deciding employer’s vicarious liability should focus on whether the act of the employee had a sufficiently close connection to the employment.

Summary. The House of Lords has held that the test for deciding employer's vicarious liability should focus on whether the act of the employee had a sufficiently close connection to the employment.

Background. It is well established that an employer is vicariously liable for the acts and omissions of its employees where these occur "in the course of employment". The "Salmond test" has been used to focus attention on whether the tortious act was an unauthorised method of the employee carrying out his duties of employment, or whether it was a "frolic of his own" (Salmond on Tort). The test states that a wrongful act is deemed to be done by a servant in the course of his employment if "it is either a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act which is authorised by the master". Over the years, this approach has been watered down with the result that an employee is liable for the acts for which he is not authorised provided they are associated with acts which he has authorised so that they may be regarded as modes (albeit improper modes) of the performance of those duties (Canadian Pacific Railway Co v Lockhart [1942] AC 591).

Facts. The claimants were boys who were resident at a boarding house run by a warden at a school for boys with behavioural difficulties. The warden's duties were to maintain discipline and to supervise the boys when they were not at school. The warden systematically sexually abused the claimants at the boarding house. They brought a claim for personal injury against the employers claiming vicarious liability for the acts of the warden.

Decision. The court held that the employers were vicariously liable for the acts of the warden. Lord Steyn looked at two decisions of the Canadian Supreme Court dealing with vicarious liability on the sexual abuse of children (Bazey v Curry [1999] 174 DLR 45 and Jacoby v Griffiths [1999] 174 DLR 71), both of which set out the principle of a "close connection" between the tortious act complained of and the employment. Lord Steyn also rejected the more recent Court of Appeal decision in Trotman v North Yorkshire County Council where the court decided that the act of sexual abuse of a young person by a teacher was "far removed from being an unauthorised mode of carrying out duties on behalf of his employer" ([1999] LGR 584). Lord Steyn said that the better approach was to concentrate on the "relative closeness between the nature of the employment and the particular tort". There was sufficient closeness between the warden's duty in supervising and looking after the boys at the boarding house and his sexual assaults on them.

Lord Clyde agreed and said that, in vicarious liability cases:

  • When assessing the scope of employment, a broad approach should be adopted. This involved not dissecting the employee's job in its component activities, but looking at the job as a whole.
  • Although the time and the place at which the acts or omissions occurred will always be relevant, they are not necessarily conclusive.
  • The fact that the employment enables the employee to be present at a particular time and place, thus giving him the opportunity to be present at the relevant premises where he commits the act in question, it does not necessarily follow that the act is within the scope of employment. To establish vicarious liability, there has to be a greater connection between the tortious act of the employee and the circumstances of his employment, than the mere opportunity to commit the act at his place of work.

Case: Lister & Others v Hesley Hall Ltd [2001] UK HL 22.

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