Lister v Hesley Hall Ltd 7 Oct 1999 Supreme Court

Dennis Grain abused pupils when he was master at Axeholme House which was a boarding house of Wilsick Hall School, owned by Hesley Hall Ltd.

This was an appeal by Hesley Hall against an order made, for the claimants against the defendant Hesley Hall for damages to be assessed. The appeal was allowed.

See also 2001 May 3 Parliament UK House of Lords Judgments – Lister and Others (AP) v Hesley Hall Limited [3] 

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is redacted for personal detail by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

 

[1999] EWCA Civ J1007-3

FC3+A 1999/5863/2

IN THE SUPREME COURT OF JUDICATURE

Thursday 7th October 1999

Lord Justice Swinton Thomas

Between: (1)[redacted] Lister

v.

Hesley Hall Limited


(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited, 180 Fleet Street, London EC4A 2HD Tel: 0171 421 4040 Official Shorthand Writers to the Court)

MR A COLLENDER QC and MR A MILLER (Instructed by Wansbroughs Willey Hargrave, 7 Park Square East, Leeds) appeared on behalf of the Appellant

MR R MAXWELL QC and MISS R COE (Instructed by Messrs Last Cawthra Feather, 11/19 Westgate, Shipley) appeared on behalf of the Respondents

JUDGMENT

(As approved by the Court)

Thursday 7th October 1999

LORD JUSTICE SWINTON THOMAS: This is an appeal, with the permission of the trial judge, against an order made by His Honour Judge Walker in Dewsbury County Court on 21st January 1999, when he entered judgment for the claimants against the defendant for damages to be assessed.

The defendant is the owner and manager of a residential school in Yorkshire for maladjusted and vulnerable boys. In the main, the boys are sent to the school by local authorities. The school itself is Wilsick Hall School and there is a boarding house, Axeholme House, about two miles away from the school. In 1979 Dennis Grain was appointed as the warden and housemaster of Axeholme House and his wife was appointed as the house mother. They were at the school between 1979 and 1982. The three claimants are now all in their early 30s and were residents at Axeholme House when in their early teens. Whilst there they were seriously sexually and physically abused by Grain. These matters did not come to light for many years, but in June 1995 Grain was convicted of sexual offences in relation to these three claimants and other boys who were then in their adolescence. The extent of the damage done to the claimants is to an extent in dispute but there can be no doubt that they were damaged by Grain’s actions and no one could do other than have very great sympathy for them.

The question which arose before the judge and arises on this appeal is whether the defendant, as Grain’s employer, is vicariously liable for his actions. The judge tried the issue as to liability only and, as I have said, he found in favour of the claimants.

Mr Richard Maxwell QC, who appears on behalf of the claimants, concedes that in the light of the way in which the case was argued before the trial judge, and in the light of ST v North Yorkshire County Council [1999] IRLR 98 , he cannot submit that the defendant is vicariously liable for the acts of sexual and physical assault themselves that were committed by Grain. ST’s case concerned a claim that the local authority was vicariously liable for an alleged indecent assault on a pupil by the deputy headmaster of a special school whilst taking the boys on a school trip to Spain. It was held that the act of indecent assault by the master on a pupil was an act outside the course of the employee’s employment. It was said that the deputy headmaster was employed to look after the children whilst they were on holiday and not to assault them indecently.

Mr Maxwell has pointed to the fact that in ST’s case the case was put on the basis of assault and trespass, and not on any more generalised allegation of negligence. That appears to be correct and accurate, as one would expect, but it is clear that the court dealt with the issue of vicarious responsibility for indecent assault, committed in circumstances such as arose in that case and arise in this case, much more broadly than that. Butler-Sloss LJ, having reviewed the authorities —which, to a limited extent, I will have to do a little later —at the end of her judgment, on page 102, said this:

“Having looked at some of the relevant decisions on each side of the line, it is useful to stand back and ask: applying general principles, in which category in the Salmond test would one expect these facts to fall? A deputy headmaster of a special school, charged with the responsibility of caring for a handicapped teenager on a foreign holiday, sexually assaults him. Is that in principle an improper mode of carrying out an authorised act on behalf of his employer, the council, or an independent act outside the course of his employment? His position of caring for the plaintiff by sharing a bedroom with him gave him the opportunity to carry out the sexual assaults. But availing himself of that opportunity seems to me to be far removed from an unauthorised mode of carrying out a teacher’s duties on behalf of his employer. Rather it is a negation of the duty of the council to look after children for whom it was responsible. Acts of physical assault may not be so easy to categorise, since they may range, for instance, from a brutal and unprovoked assault by a teacher to forceful attempts to defend another pupil or the teacher himself. But in the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”

It is in that paragraph, as I see it, that one finds the reasoning underlying the decision in ST’s case.

At the very end of her judgment, as Mr Maxwell pointed out to us, Butler-Sloss LJ said:

“… on the basis of the case set out in the pleadings which is the only issue before this court, the blame for these events cannot be laid at the door of the council.”

Mr Maxwell accordingly submits that that passage and a passage in the judgment of Chadwick LJ leave the door open to him to make the submissions that he does. Chadwick LJ on page 102 said:

“It is essential to keep in mind that it is not alleged that the council itself was in breach of any duty which it may have owed to the plaintiff. The only basis of the claim advanced against the council is vicarious liability for the acts of its employee.”

That was not the position in this case when the case was before the judge. It was alleged on behalf of the claimants that the council itself was in breach of duty in certain respects such as a failure properly to supervise and a failure properly to take up references in relation to the Grains. However, the case now, as it is before this court, is one which is entirely dependent, although broadened from ST’s case, on the issue of the vicarious liability of the manager for failures by Grain. At the very end of his judgment, Chadwick LJ said:

“There is no allegation in the particulars of claim that the council itself owed to the plaintiff a duty to ensure he was free from harm during the Spanish holiday. No doubt there were thought to be good reasons for pleading the case without alleging any duty owed by the council itself. I express no view on whether such an allegation could be made good. This court must decide this appeal on the basis that the preliminary issue is defined by the allegations which were before the judge. It would not be safe to proceed on the basis that the case might have been put in some other way which the plaintiff has not chosen to plead.”

Again, Mr Maxwell submits that Chadwick LJ also left open the issues which he has placed before this court.

I am bound to say that I understand the relevant parts of the judgments of both Butler-Sloss and Chadwick LLJ to relate either to a suggestion that there might be a non-delegable duty owed by employers or by a council to children in care in a home such as this or, alternatively and more likely, to breaches by the council of its own duties, such as the duty to supervise or to take up appropriate references. I find it impossible to read into those judgments the concept that the council might have been made liable on the basis of a failure, either prior to the acts of indecency or after the acts of indecency, to report those acts to the employer.

In his judgment, the judge considered first of all the criticisms made against the defendant which would have rendered it directly liable to the claimants; for example, as I have said, an alleged failure to take up references and a failure of supervision. In relation to those matters, the judge said this:

“… having heard the evidence I discount all the Plaintiffs’ particulars of acts on which it is submitted the Defendant ought to have known or been put on guard as to Mr Grain’s propensities and the Plaintiffs (if they are to succeed) must fall back on something much more fundamental.”

The judge then went on to refer to ST’s case. He continued:

“The case [of Lister and others] can be stripped of all its essentials and put in this broad form –

1. The Defendant admits it had a duty of care towards the Plaintiffs

2. That duty of care was to take all reasonable steps to safeguard the Plaintiffs (and other pupils) in its physical, moral and educational development whilst at the school.

3. In carrying out that duty of care the Defendant a limited company necessarily had to appoint a hierarchy of responsible agents (The Headmaster, the Boarding House Warden, Assistant Masters) each of whom had either general or particular responsibilities which bore upon this duty of care

4. Mr Grain in particular was responsible for the boys while at Axeholme House and as well as supervising the running of the House he also participated in case conferences relating to each boy: he wrote quasi pastoral letters to the parents and reports on the boys themselves

5. He had a duty to report to the Defendant (whether specifically at the time or generally at case conferences or in the writing of reports) any harm which he perceived had come or might come to any of the boys in his care with a view to the Defendant carrying out further its duty of care in taking remedial or preventative steps

6. Failure by Mr Grain to report harm to the boys would unquestionably be a failure to carry out a duty which he owed generally and specifically to each boy in his care.

7. The consequences of a report of abuse upon a boy would (I find) undoubtedly result in the removal from the scene by the Defendant of the source of the harm by the dismissal of Mr Grain and the report of the incident to the police.

8. The defendant is therefore vicariously liable for Mr Grain’s failure to report the acts of abuse.”

In my view, one could not quarrel with the judge’s findings in paragraphs 1 to 6, which I have just quoted, and there can be no doubt that Grain was in breach of the duties that he owed to the boys in his care. Further, the judge was plainly right, in paragraph 7, in concluding that if Grain had reported his own abuse he would have been removed from his post. However, with great respect to the judge, he then, without analysing the nature of the defendant’s vicarious responsibility for Grain’s actions, jumped in paragraph 8 of his reasoning to conclude that because of the matters set out in paragraphs 1 to 7 the defendant was, as he put it, “vicariously liable” for the failure to report the acts of abuse.

Mr Maxwell puts the case to us on behalf of the claimants broadly, saying that the defendant owed the claimants a duty of care to take reasonable steps to keep them safe from harm. In his skeleton argument he quoted in support of that proposition Caparo Industries Plc v Dickman and Others [1990] 2 AC 605 . That again is undoubtedly correct. He then continues by submitting that as a matter of probability Grain’s actions against the claimants were premeditated and that he would have groomed the boys for his own purposes. He would have been aware that the abuse would harm the boys and after the act of abuse had taken place he would be well aware that harm had been done and that they would continue to suffer harm unless the matter was speedily reported and dealt with, in which case the harm would be ameliorated. Accordingly he should have desisted from his actions before committing them or, perhaps more realistically, it is said that he should have reported his actions to his employer, the defendant, after the acts of abuse had taken place so that there would be no repetition of them and the boys would receive such medical care and counselling as they needed.

Mr Maxwell submitted to us, first, that he was in a position on behalf of the claimants to establish liability on orthodox principles, namely that the employer was liable for Grain’s breach of duty to the boys in his care committed in the course of his employment. He accepted that the issue as to whether what he did was or was not in the course of his employment was the vital element. But he continued by saying that Grain was employed to care for and protect the children placed in his care. There was some discussion about the nature of a personal non-delegable duty lying on the defendant towards these claimants, but Mr Maxwell readily concedes that that was not an issue on this appeal.

He then goes on to say that it is common ground that responsibility for caring for the children was within the scope of Grain’s employment and he owed a duty of care in that respect to each child in his care. In support of that point he invited our attention to parts of the evidence of a Mr Rigg, who was the Assistant Director (Operations) working for the defendants. Then Mr Maxwell submitted that there were a number of respects, apart from the acts of abuse themselves, in respect of which Grain was in breach of his duty to the claimants. The fact that he was an abuser is irrelevant to the issue as to whether he was negligent either before or after the act of abuse or both. Grain, said Mr Maxwell, had an obligation to keep each of these claimants safe from harm. When, for example, he came across a child who had been abused by him and damaged, he owed a duty to that child to ameliorate the position and to report it. He took, as an example, that if as the housemaster he came across a boy who had been injured or who had been traumatised in some way, he would be obliged to take action in order to have that child treated and to protect him from further harm. The fact that the man is also an abuser, Mr Maxwell submits, is irrelevant to that duty. Finally, Mr Maxwell submits that in his judgment the judge reached the right result for the correct reasons.

There is, if I may say so with respect, a great deal of good sense and logic in Mr Maxwell’s forceful submissions in this appeal. But, having said that, he has to face the difficulty, as I see it, in relation to the issue as to whether the employer can be found to have been vicariously liable for the acts of Grain preceding and after the acts of indecency committed by him. The principles underlying the doctrine of vicarious liability have always been somewhat elusive, and to an extent the law has proceeded on a pragmatic basis. The doctrine has developed over the last hundred years or more incrementally and to a substantial extent on a practical as opposed to a principled basis. The statement in Salmond & Heuston, now to be found on page 443 of the 21st edition, is often regarded as the most satisfactory exposition of the doctrine and has been quoted with approval in a number of cases, including ST’s case.

The passage reads as follows:

“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master. Although there are few decisions on the point, 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 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. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. If a servant does negligently that which he was authorised to do carefully, or if he does fraudulently that which he was authorised to do honestly, or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud or mistake. On the other hand, if the authorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside it.”

That statement has been approved in a substantial number of cases which are set out in footnote 35 to page 443.

In Heasmans v Clarity Cleaning Company [1987] IRLR 286 , Nourse LJ said this, at page 289:

“A master is not liable for a tort committed by his servant unless it is committed in the course of the servant’s employment. An act is not done in the course of the servant’s employment if it is one which is not authorised by the master. But if an authorised act is done in an unauthorised manner it is done in the course of the employment.

In the present case Bonsu was, broadly speaking, authorised to clean the telephones. He was not authorised to use them. The unauthorised use of a telephone cannot properly be regarded as the cleaning of it in an unauthorised manner. It is another and entirely separate act. But it was suggested that the giving of access to the premises and to their contents to Clarity, and through them to Bonsu, in some way amounted to a bailment of the contents or the equivalent. Reliance was placed on the decision of this court in Morris v C W Martin & Sons Ltd (1966) 1QB 716 . That is an impossible view of this case. Although Bonsu was no doubt required to clean the telephones carefully, he was required to handle them for that purpose only. He was neither required nor authorised to take custody of them. He would, for example, have been under no duty to prevent a third party from using them.”

Bell & Another v Lever Brothers Ltd and Others [1932] AC 161 is the well-known case about mistake which, as I have indicated in the course of submissions, many of us have not looked at since our student days. It does, however, have some relevance to the present case, despite its antiquity. The case concerned the rescission of contracts on the ground of unilateral mistake induced by fraud or payments made under a mistake of fact. At page 228 Lord Atkin said:

“It is said that there is a contractual duty of the servant to disclose his past faults. I agree that the duty in the servant to protect his master’s property may involve the duty to report a fellow servant whom he knows to be wrongly dealing with that property. The servant owes a duty not to steal, but, having stolen, is there superadded a duty to confess that he has stolen? I am satisfied that to imply such a duty would be a departure from the well established usage of mankind and would be to create obligations entirely outside the normal contemplation of the parties concerned. If a man agrees to raise his butler’s wages, must the butler disclose that two years ago he received a secret commission from the wine merchant; and if the master discovers it, can he, without dismissal or after the servant has left, avoid the agreement for the increase in salary and recover back the extra wages paid? If he gives his cook a month’s wages in lieu of notice can he, on discovery that the cook has been pilfering the tea and sugar, claim the return of the month’s wages? I think not. He takes the risk; if he wishes to protect himself he can question his servant, and will then be protected by the truth or otherwise of the answers.”

It is clear, as Mr Maxwell has rightly submitted, that Grain owed to each of these claimants a duty not to assault them either physically or sexually. In addition, he owed a duty not to embark on those acts of indecency and, in all probability —and I would certainly be prepared to accept —he owed to the claimants a duty, as outlined by Mr Maxwell, to report his own acts so as to prevent repetition. Of course he owed them a duty not to commit the acts themselves. But the issue is not whether Grain owed that duty to the claimants, but whether or not the employer is vicariously liable for those acts, namely and in particular his breach of duty in failing to desist prior to committing the acts of indecency or to report his own acts of assault.

In my judgment, the grooming and the like and the failure to report his own actions are just as much, in the circumstances of a case such as this, outside the course of his employment as the acts themselves. They are, in truth, part and parcel of the acts of indecency or assault. As with the acts of indecency, they are unauthorised and wrongful acts and are not, in my judgment, so connected with an authorised act as to be a mode of carrying out the authorised act. If it is right, as was found in ST’s case, that the employer cannot be made liable for the acts of indecent assault because they are outside the course of employment, so likewise, it seems to me, it must in reality inevitably follow that the grooming, the failure to desist and the failure to report are also independent acts outside the course of employment for which the employer cannot be held vicariously responsible.

I accept, for my part, Mr Collender’s submission that it would be artificial to say that the employer is not vicariously liable for the acts of abuse themselves, but is vicariously liable for the grooming and the failure to report the acts. They are in my judgement part of a wrongful and unauthorised course of conduct by the employee outside the course of his employment for which the employer cannot be held vicariously liable.

For those reasons I would allow this appeal.

LORD JUSTICE WALLER: I agree and would just add some short words of my own. In the context of the ST decision, I do not think the judgment of the judge in this case can be upheld. This case, as ST , is concerned with the question whether the defendant should be vicariously liable for a tort committed by its employee. In ST the allegation was that the employee abused a young child. In that case it was held that there was no vicarious liability because the act of abuse, which was the tort in that case, was committed outside the course of the employment of the employee. In this case, Mr Maxwell has accepted that there was no vicarious liability for the abuse itself, but the argument was before the judge and has been before us that there can be vicarious liability for a failure by Mr Grain to report that he as an employee was going to abuse or that he had abused the claimants.

It is not, I stress, a case in which it is alleged that after the abuse the employee became aware that one of the claimants was injured in such a way as needed treatment, and it is not alleged that there was a failure in that context to obtain treatment or anything of that kind. The allegation is limited to an assertion that the defendant is vicariously liable for a failure by Mr Grain to report the abuse about to take place or which had taken place. It may be that Mr Grain did owe a duty to the boys to stop himself abusing and to report himself to his employer so as to prevent further abuse. However, it seems to me that where wrongdoing is itself outside the scope of employment, a failure to prevent it or to report it after the event must also be outside the scope of employment. It seems to me that the passage referred to by my Lord from Lord Atkin’s judgment in Bell v Lever Brothers supports that conclusion, in that there is no breach of duty as between employer and employee where an employee fails to report his wrongdoing.

I would stress that there may be circumstances in which it will be within the course of employment and the duty of an employee in the position of Mr Grain to report, for example, an injury to a young person in their care, that duty arising from a gaining of knowledge of the injury. That duty may well exist, even though in fulfilling that duty the result may lead to the uncovering of misconduct. But that matter has not been fully explored in this case and it is not the point which arises in this case.

The simple point in this case is that if wrongful conduct is outside the course of employment, a failure to prevent or report that wrong conduct cannot be within the scope of employment so as to make the employer vicariously liable for that failure when the employer was not vicariously liable for the wrongful conduct itself.

I too would allow the appeal.

MR JUSTICE JONATHAN PARKER: I agree with both judgments and would say only this. In the light of the decision of this court in ST it is not in my judgment possible to manipulate the principles applicable to vicarious liability so as to arrive at a position in this case where, although the employer is not vicariously liable for the acts of abuse themselves, it is nevertheless vicariously liable for the abuser’s failure to prevent or report them.

I also would therefore allow this appeal.

ORDER: Judgment for the defendants. Costs awarded in favour of the defendants, not to be enforced without the leave of the court. Costs awarded in favour of the defendants under section 18 of the Legal Aid Act, contributions assessed as nil. Legal aid direction. Permission to appeal refused.

(Order not part of approved judgment)

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
This entry was posted in cathy fox blog, Child Abuse, Child sexual abuse, Childrens home, Schools / teachers, Yorkshire and tagged , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

One Response to Lister v Hesley Hall Ltd 7 Oct 1999 Supreme Court

  1. Pingback: An Index and Timeline of Court and Court of Appeal Documents on Cathy Fox Blog | cathy fox blog on child abuse

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