Lister v Hesley Hall Ltd is a landmark case in English tort law that significantly altered the approach towards employer liability for the tortious acts of their employees. This case created a new precedent by expanding the scope of vicarious liability to include intentional torts, such as sexual abuse, when a close connection exists between the employee’s wrongful acts and the nature of their employment.
Prior to this decision, courts held that employers were not liable for acts such as sexual abuse because these were not considered to be committed in the course of employment.
The House of Lords in Lister v Hesley Hall Ltd overruled earlier rulings, including a Court of Appeal decision, by introducing the ‘close connection’ test for determining employer liability for intentional torts. This case remains a significant authority on the modern principles governing vicarious liability in English law.
Facts of Lister v Hesley Hall Ltd
The facts in Lister v Hesley Hall Ltd concerned Axeholme House, an annex to Wilsic Hall School located in Doncaster. The annex was opened in 1979 to accommodate boys with behavioural and emotional difficulties. The claimants in the case were former residents of Axeholme House between 1979 and 1982. At the time, their ages ranged from 12 to 15 years.
The warden of Axeholme House was responsible for maintaining discipline and managing the day-to-day running of the boarding house. His duties included ensuring the boys attended school, went to bed on time, and participated in evening activities. The warden also supervised other staff at times. Importantly, the warden lived on-site with his disabled wife, and together they formed almost the entirety of the staff presence in the house.
Several boys alleged that the warden sexually abused them during their residence at Axeholme House. The abuse took the form of inappropriate sexual advances and taking some boys on isolated trips alone. The abuse was not known to the employers at the time but was discovered approximately ten years later following a criminal investigation. The warden was prosecuted and sentenced to seven years imprisonment for these offences.
Subsequently, the victims brought a claim for personal injury against the employer, Hesley Hall Ltd, alleging that the company was vicariously liable for the warden’s intentional torts of sexual abuse committed while he was acting in his employment.
Legal Issues
The primary legal issue in Lister v Hesley Hall Ltd was whether the employer could be held vicariously liable for the intentional, unauthorised sexual abuse committed by the warden. More specifically, the case questioned whether these wrongful acts could be regarded as having been committed “in the course of employment,” a requirement traditionally necessary for employer liability.
Before this case, English courts followed the Salmond test for vicarious liability, which provided two circumstances for employer liability:
- When the employee’s wrongful act is authorised by the employer.
- When the employee commits a wrongful and unauthorised mode of doing some act authorised by the employer.
Applying this traditional test, courts usually refused to hold employers liable for intentional torts like sexual abuse because such acts were neither authorised nor considered a mode of authorised acts.
Lister v Hesley Hall Ltd challenged this understanding by introducing a broader and fairer approach to the concept of course of employment.
Lister v Hesley Hall Ltd Decision and Judgement
The House of Lords unanimously allowed the appeal in Lister v Hesley Hall Ltd, holding that the employer was vicariously liable for the warden’s sexual abuse. The leading judgement was delivered by Lord Steyn, who introduced the new test of “close connection” between the tort and the employee’s duties.
Lord Steyn referenced important Canadian authorities — Bazley v Curry and Jacobi v Griffiths — which had pioneered this broader approach to employer liability for intentional torts. He stated that the key question was whether the tortious acts were so closely connected to the employee’s authorised duties that it would be fair and just to impose liability on the employer.
On the facts of Lister v Hesley Hall Ltd, the Court found that the sexual abuse was “inextricably interwoven” with the warden’s duties at Axeholme House. The warden’s function was to care for and supervise the boys, and the abuse was committed at the time, place, and in the context of this employment. Therefore, the torts could be regarded as falling within the course of employment despite being unauthorised and criminal acts.
Lord Steyn criticised the rigid application of the Salmond test, observing that it could lead to unjust and unrealistic outcomes. For example, under the old test, a bank would not be liable if an employee defrauded a customer, even though the employee’s role gave him the opportunity to commit fraud. He emphasised that the law of vicarious liability must deliver principled but practical justice, and therefore a broader, “close connection” test was appropriate.
Lord Clyde also gave an important speech in the case, stating three guiding principles for assessing vicarious liability:
- The scope of employment should be approached broadly.
- Although the time and place of the wrongful acts are relevant, they are not necessarily conclusive.
- The mere opportunity provided by employment to commit a tort does not establish liability; there must be a real connection between the tort and the employee’s duties.
Conclusion
Lister v Hesley Hall Ltd remains a cornerstone authority in English tort law, fundamentally reshaping the approach to employer liability for the wrongful acts of employees. The case established that employers may be held liable for intentional, unauthorised torts if there is a sufficient connection between the wrongful acts and the nature of the employee’s duties.
The case rejected the older Salmond test and adopted a “close connection” test, which requires courts to take a broader and more realistic view of the relationship between employment and wrongful acts. This decision has had a lasting impact on the development of vicarious liability and continues to guide courts when assessing whether an employer should be held responsible for the tortious conduct of their employees.
