166:. Wherever such problems are considered in future in the common law world these judgments will be the starting point. On the other hand, it is unnecessary to express views on the full range of policy considerations examined in those decisions Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.
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liability sometimes may embrace intentional wrongdoing by an employee. If one mechanically applies
Salmond's test, the result might at first glance be thought to be that a bank is not liable to a customer where a bank employee defrauds a customer by giving him only half the foreign exchange which he paid for, the employee pocketing the difference. A preoccupation with conceptualistic reasoning may lead to the absurd conclusion that there can only be vicarious liability if the bank carries on business in defrauding its customers. Ideas divorced from reality have never held much attraction for judges steeped in the tradition that their task is to deliver principled but practical justice.
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For nearly a century
English judges have adopted Salmond's statement of the applicable test as correct. .. It is not necessary to embark on a detailed examination of the development of the modern principle of vicarious liability. But it is necessary to face up to the way in which the law of vicarious
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was opened in 1979; the principal students to live there having behavioural and emotional difficulties. The claimants in the instant case had resided there between the years 1979 to 1982, being aged 12 to 15 during this time, under the care of a warden, who was in charge of maintaining discipline and
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It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable
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them, including inappropriate advances and taking trips alone with them. A criminal investigation took place some ten years later, resulting in the warden being sentenced to seven years imprisonment; following this, the victims brought an action for personal injury against the employers, alleging
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while the employment enables the employee to be present at a particular time and place, the opportunity of being present at particular premises whereby the employee has been able to perform the act in question does not mean that the act is necessarily within the scope of the
145:, had found that a headmaster's sexual abuse of a child on a field trip was not within the scope of his employment, a previous criterion by which an employer could be found vicariously liable. This was the view taken prior to the House of Lords appeal, but was reversed, with
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Of importance is that the employment status of an individual cannot merely have provided the employee with an opportunity to commit a tort. There must be a connection between the duties of an employee and the tort committed, as restated in the subsequent case of
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in the house. His duties were ensuring order, in making sure the children went to bed, went to school, engaged in evening activities, and supervising other staff. It had been alleged by some of the boys that the warden had
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of their employees. Prior to this decision, it had been found that sexual abuse by employees of others could not be seen as in the course of their employment, precluding recovery from the employer. The majority of the
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making the leading judgment. Here, he cited a recent
Canadian case, which had imposed liability for intentional torts, creating a new test of 'close connection', rather than using previous formulations:
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even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes-although improper modes-of doing them.
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Following this expansion of liability, employers have been found liable in subsequent cases for intentional torts of their employees. In
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the running of the house. The warden lived at the house also, with his disabled wife, and together they were the only two members of
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established liability for fraud of employees, where it is outside their duties or authority to make certain representations.
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while consideration of the time and place at which the acts occurred will always be relevant, they may not be conclusive; and
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My Lords, I have been greatly assisted by the luminous and illuminating judgments of the
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This new test of close connection has been described as 'fairer', and of greater use to claimants.
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in considering the scope of the employment, a broad approach should be adopted;
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stated three principles in his judgment which he felt should be considered:
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Levinson, Justin (2005). "Vicarious liability for intentional torts".
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This decision is significant in the Lords' assessment of the
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A boarding house (Axeholme House) for Wilsic Hall School, in
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Vicarious liability, course of employment, close connection
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Deakin, Simon; Johnston, Angus; Markesinis, Basil (2007).
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261:vicarious liability was found where a
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574:English vicarious liability case law
472:Markesinis, Johnston, Deakin, p. 691
382:Markesinis, Johnston, Deakin, p. 690
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292:Vicarious liability in English law
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88:for finding where an employer is
527:Markesinis and Deakin's Tort Law
584:2001 in United Kingdom case law
495:Dubai Aluminium Co Ltd v Salaam
272:Dubai Aluminium Co Ltd v Salaam
236:Dubai Aluminium Co Ltd v Salaam
552:Journal of Personal Injury Law
128:they were vicariously liable.
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554:(4). Sweet & Maxwell.
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74:Lister v Hesley Hall Ltd
21:Lister v Hesley Hall Ltd
533:Oxford University Press
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101:however overruled the
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84:case, creating a new
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269:at which he worked.
193:John William Salmond
404:Jacobi v Griffiths
163:Jacobi v Griffiths
90:vicariously liable
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311:References
267:night club
211:Lord Clyde
147:Lord Steyn
48:3 May 2001
306:2 SCR 534
115:Doncaster
86:precedent
445:, p. 443
325:IR LR 98
279:See also
190:—
132:Judgment
92:for the
61:Keywords
53:Citation
263:bouncer
172:Salmond
78:UKHL 22
56:UKHL 22
45:Decided
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241:deceit
160:, and
80:is an
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245:theft
120:staff
109:Facts
94:torts
35:Court
537:ISBN
435:ISBN
243:and
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