Konrad Morrice Lister and Others v Hesley Hall Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS,LORD JUSTICE WALLER,MR JUSTICE JONATHAN PARKER |
| Judgment Date | 07 October 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J1007-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FC3+A 1999/5863/2 |
| Date | 07 October 1999 |
[1999] EWCA Civ J1007-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DEWSBURY COUNTY COURT
(HIS HONOUR JUDGE WALKER)
Royal Courts of Justice
Strand
London WC2
Lord Justice Swinton Thomas
Lord Justice Waller
Mr Justice Jonathan Parker
FC3+A 1999/5863/2
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
Thursday 7th October 1999
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...
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