Abuse and Vicarious Liability by Nick Holmes

Trotman V North Yorkshire County Council: CA

(Butler - Sloss LJ, Thorpe LJ, Chadwick LJ ) 14 July 1998

Lister and others V Hesley Hall Limited: CA

(Swinton Thomas LJ, Waller LJ, Johnathan Parker J) 7 October 1999

Can an employer be vicariously liable for the acts of an employee where those acts include abuse of children in the care of that employee? This question has been addressed in two recent cases in the Court of Appeal.

Trotman was a case involving a Deputy Head Master of a school who sexually abused a mentally disabled child in his care whilst on a school trip to Spain. At the hearing of the preliminary issue, the judge held that the Deputy Head Master was effectively in loco parentis and owed the child a duty of care. As the Deputy Head's actions were an unauthorised mode of performing his duties, the Council who employed him were vicariously liable. The Council appealed.

The Court of Appeal, allowing the appeal, held that the council was not vicariously liable as the sexual assault was not an example of carrying out an authorised act in an unauthorised manner.

The Hesley Hall case took the argument one stage further. This was a case involving three Claimants who were sexually abused whilst in the Defendants care at a school known as Wilsic Hall School and a boarding House known as AxleHolme House. It was accepted as fact that the Claimants were all abused by Dennis Grain who was Warden of AxleHolme. Following Trotman, the judge at first instance accepted that Grain's employer (the Defendant) could not be vicariously liable for the abusive acts, but set out the following argument, which bears repeating in some detail:-

1. The Defendant admits it owed the Claimants a duty of care.
2. That duty was to take all reasonable steps to safeguard the Claimants.
3. In carrying out that duty the Defendant had to appoint agents, each of whom had areas of responsibility which bore upon this duty.
4. Dennis Grain in particular was responsible for the running of AxleHolme House and was involved in the boys pastoral care.
5. Grain had a duty to report any harm he perceived had come or might come to the boys with a view to the Defendant carrying out further its duty of care.
6. Failure by Grain to report harm to the boys would be a failure to carry out a duty which he owed to each boy in his care.
7. The consequences of a report of abuse upon a boy would undoubtedly have resulted in Grain's dismissal and a report to the police.
8. The Defendant is therefore vicariously liable for Grain's failure to report the acts of abuse.

The judge framed his argument in a simple but compelling question 'why then simply because Mr Grain was both the perpetrator of the abuse and the person owing the duty of care should that duty of care be removed?'. He gave leave to appeal.

The Court of Appeal accepted the judges findings in paragraphs (1) to (7) above, but did not accept that his conclusion at paragraph (8) was therefore correct. The court held that vicarious liability only applied to torts committed during the course of employment. If (per Trotman) an employee could not be held vicariously liable for acts of assault, it inevitably followed that failure to desist from abuse and to report the abuse were also outside the course of employment. The appeal was allowed.

STOP PRESS - At the time of preparing this article ( early November 1999) the Claimants in the Hesley Hall Case are intending to petition the House of Lords for leave to appeal. Watch this space!