• The case of Lister v Hesley Hall [2002] 1 AC 215 established the ‘close connection test’. It was held that where the wrongful conduct in question falls outside the course of employment, a failure to prevent or report this conduct would not be within the scope of employment. The employer cannot be vicariously liable for it if there was not a sufficiently close connection between the wrongdoing and employment.

Facts of Lister v Hesley Hall [2002] 1 AC 215

  • Ds ran a boarding house of which the warden was employed, and the Cs resided
  • Without the knowledge of the Ds, the warden systematically sexually abused the Cs
  • Cs sued Ds for vicariously liability
  • The Court of Appeal held that the Ds were not vicariously liable for the warden’s actions as these were unauthorised acts, meaning they could not be found to be within the course of employment

Issues in Lister v Hesley Hall [2002] 1 AC 215

  • Was the warden acting in the course of employment during the sexual abuse he committed?

Held by the House of Lords

Appeal allowed, the Ds should be held vicariously liable.

Lord Steyn

Salmond’s test:

Laying it out [15]

  • “a wrongful act is deemed to be done by a “servant” in the course of his employment if “it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master””
  • However Lord Steyn pointed out, what is overlooked by many, Salmond had stated that an employer can be liable for unauthorised acts which were “so connected with acts which he has authorised, that they may rightly be regarded as modes—although improper modes—of doing them”

The mechanical application of the Salmond’s test may result in the bank not being liable for a fraud committed by one of their employees by giving him a reduced exchange for foreign currency [16]

  • “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”

“In reality it is simply a practical test serving as a dividing line between cases where it is or is not just to impose vicarious liability. The usefulness of the Salmond formulation is, however, crucially dependent on focusing on the right act of the employee.” [20]

Close connection test

  • Rather than the Salmond’s test, should consider whether there was “a very close connection between the torts of the warden and his employment” [20]

Considering the case of Trotman v North Yorkshire CC [1999], Lord Steyn confessed he would overrule that decision.

  • “It resulted in the case being treated as one of the employment furnishing a mere opportunity to commit the sexual abuse. The reality was that the county council were responsible for the care of the vulnerable children and employed the deputy headmaster to carry out that duty on its behalf. And the sexual abuse took place while the employee was engaged in duties at the very time and place demanded by his employment.” [25]

Applying the close connection test to the present case:

  • Yes, the Ds were vicariously liable as “the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties” [28]

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