Lister v Helsey Hall Ltd [2001] IRLR 472
This Landmark House of Lords ruling expands the scope of the vicarious liability of employers for the criminal or negligent acts of their employees. This particular case involved a boarding school for what were described as maladjusted and vulnerable boys aged between 12 and 15. For a three year period the warden of the school who was entrusted with their care systematically and seriously sexually abused them. He was ultimately convicted of these offences and the victims sought compensation. Clearly, a warden would be unable to meet any such claims, so the claims were directed against the school which was alleged to be vicariously liable for the misconduct of the warden as its employee.
Although this case involves sexual assault of children by a boarding school warden, the implications of this decision will be extensive and impact upon many person injury claims involving the misconduct or carelessness of fellow employees.
When the case was first heard the court was bound by the case of Trotman v North Yorkshire CC [1999] IRLR 98. In Trotman the deputy headteacher of a school sexually assaulted a pupil whilst on a school trip to Spain. The Court of Appeal rejected the case against the school on the basis that the acts of the deputy headteacher were so far removed from his duties, and amounted to an act of personal gratification, that he was not acting in the course of his employment. Accordingly, the school were not vicariously liable.
But in this case of Lister, the House of Lords has now overruled that decision. The key question is the extent to which the act of the employee is closely connected with his employment.
The emphasis is upon the duties of employment. In this case, the warden was entrusted with the care and supervision of the children. Sexually abusing them was a negation of that responsibility. Nevertheless, it was that responsibility which rendered the school vicariously liable.However, it would not be enough if the employment simply gave the employee the opportunity to commit the wrongful act in question. For example, if a gardener or a porter had abused the children, the school would not be liable. Their specific tasks did not involve the care and supervision of children. But the position might be different if the children had been given gardening duties and entrusted to the care and supervision of the gardener when undertaking such duties.
Many instructive case examples were cited by the House of Lords. In reviewing these cases it was stressed that in establishing whether the misconduct is closely connected to the employment duties, those duties must be considered broadly and not broken down into individual component parts.
In one case a petrol tanker driver had caused an explosion by smoking a cigarette whilst engaged in transferring petrol from the tanker to a petrol station. Smoking itself was an unauthorised act but that was simply a component part of his conduct. Looking at his job more generally, a requirement was to safely transfer petrol such that this misconduct was in the course of his employment and the employers were variously liable.
A milkman was prohibited from employing children on his float but he disregarded that rule, engaged a child on an informal basis and then negligently injured that child. His employers were liable. Engaging the child was unauthorised but his job was to deliver milk and he had chosen to exercise that by employing a child to assist him.
Assault at work cases will be of particular relevance.
There have been difficult borderline cases. An employee using a hand basin at the end of a working day pushed the basin so as to cause it to move and startle a fellow employee. That was held to be insufficiently connected with employment. It may be rationalised as a case where the offending employee did not have any particular duties towards the fellow employee whilst both were engaged in using the relevant washroom.
Similarly, an employee serving behind a bar threw a glass of beer over a customer. The pub owners were held not to be vicariously liable. The employee was not employed to maintain order so there was insufficient connection with the duties of employment.
Strangely, one of the speeches commented that the position would have been different if the employee had been authorised to maintain order, eg the landlord, even if this particular act involved settling a private score.
In practice, though, it may be possible to argue that bar staff and similar employees such as counter staff etc will have some responsibility for ensuring the maintenance of order. Such staff may be expected to intervene or at least report a disturbance and usually would not be expected to turn a blind eye.
In cases of assault involving fellow employees, there were no helpful comments in the speeches provided. However, there must now be a very strong argument that where the assault is committed by a manager, vicarious liability will usually arise. The manager will have responsibility to issue and enforce instructions, ensure compliance with relevant requirements and procedures etc. Where an argument arises with an employee, even where the dispute is mainly personal, the assault may be seen as an unauthorised means of exerting authority, maintaining order, responding to the employee's challenges to authority etc.
The position is likely to be very different where it is simply a fight between two fellow employees.
The conduct of security staff was considered. An employee attempting to repossess the employer's property committed an assault. The employer was liable. The employee's job involved the need to resort to personal violence on occasion. Similar considerations may apply in cases involving assaults by night club bouncers.
Overall, this case is a considerable step forward. It is a complete review of the law of vicarious liability. There will be a considerable impact in many union personal injury cases involving misconduct and criminal conduct by fellow employees.