LISTER v HESLEY HALL LTD

Vicarious liability and the systematic sexual abuse of children under the care of trained staff, becomes the nucleus of a collective suit against the abuser’s employer, in the wake of criminal allegations leading to a conviction.

Between 1979 and 1982, the respondents employed the services of a warden for the purposes of managing a boarding house designated the care of emotionally troubled and vulnerable children.

Of the eighteen boys resident to the property, a number of them were subjected to numerous forms of sexual abuse, achieved through careful grooming and insidious manipulations by the offender. 

While the acts themselves went unreported, a criminal investigation revealed the identity of the accused; and following summary conviction, he was sentenced to seven years imprisonment.

Almost fifteen years later, the appellants issued claims against the owners of the boarding house on grounds of vicarious liability and negligence.

In the first instance, the claim for negligence was dismissed, while the accusation of liability for the abuse fell victim to the existing position as determined by the verdict in Trotman v North Yorkshire County Council; in which, a disabled pupil had been sexually abused by the deputy headmaster while on a school trip abroad.

When assessing the culpability of the local authority, Butler-Sloss LJ concluded that:

“[I]n 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.”

Trotman v North Yorkshire County Council

Subsequently holding that the employers in question, could not be held liable for the individual actions of a sick mind, despite having harmed the child while under the employment of the authority at the time of the abuse.

When heard by the Court of Appeal, who themselves adhered to the principles ascribed in Trotman, the decision was taken to award damages based on the wardens failure to report his actions to his employer.

This was expressed by Waller LJ, who explained:

“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.”

Granted leave to appeal, the case was presented again to the House of Lords, who took issue with the decision in Trotman, while clarifying the very principles of vicarious liability.

The essence of vicarious liability rests upon the timeless principles espoused in academic text; which state that a wrongful act undertaken by an employee in the course of his employment is recognised where:

‘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’.

This is further supported by the principle that:

‘a master…is liable even for acts which he has 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 Lloyd v Grace, Smith & Co, a firm of solicitors were held liable for the manipulation of their client by a manager who used the acquired property for his own benefit, while in Williams v A & W Hemphill Ltd,  it was expressed  by Lord President Clyde that:

“[W]here the workman does some work which he is appointed to do, but does it in a way which his master has not authorised and would not have authorised had he known of it, the master is nevertheless still responsible, for the servant’s act is still within the scope of his employment. On the other hand…if the servant is employed only to do a particular work or a particular class of work, and he does something outside the scope of that work, the master is not responsible for any mischief the servant may do to a third party.”

Williams v A & W Hemphill Ltd

However, in Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co, Cullen LJ argued that:

“The question is not to be answered merely by applying the test whether the act in itself is one which the servant was employed or ordered or forbidden to do. The employer has to shoulder responsibility on a wider basis; and he may, and often does, become responsible to third parties for acts which he has expressly or impliedly forbidden the servant to do.”

Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co

While further remarking that:

“An honest master does not employ or authorise his servant to commit crimes of dishonesty towards third parties; but nevertheless he may incur liability for a crime of dishonesty committed by the servant if it was committed by him within the field of activities which the employment assigned to him, and that although the crime was committed by the servant solely in pursuance of his own private advantage.”

In a more recent Canadian case Bazley v Curry, involving the sexual abuse of children by an employee of a children’s foundation who had been assigned a parental/ carer role, the court found the employers vicariously liable and awarded damages accordingly.

In ‘Vicarious Liability in the Law of Torts’ it was also suggested that:

‘The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on’

While in Dyer v Munday, the court agreed that there was no reason why the doctrine of vicarious liability ought not operate where a tort becomes a crime.

It was for these reasons, as well as the ignorance shown in Trotman, that the House agreed the judgment was to be overruled, and that in this matter, the appeal was to be upheld on grounds that the proximity between the wardens actions, his duty to his employers and conversely theirs to the appellants, left no doubt as to where liability lay, while the court reminded the parties that:

“Vicarious liability is a species of strict liability. It is not premised on any culpable act or omission on the part of the employer; an employer who is not personally at fault is made legally answerable for the fault of his employee.”

RE S (CARE ORDER: IMPLEMENTATION OF CARE PLAN)

Re S (Care Order: Implementation of Care Plan)

In this conjoined appeal case, there were two matters in need of address, and both involved a local authority and the issuing of final care orders for families in need of reunion.

The first, was re S (Minors) (Care Order: Implementation of Care Plan) and the second, re W (Minors) (Care Order: Adequacy of Care Plan) as shown below:

Re S (Minors) (Care Order: Implementation of Care Plan) 

As the mother of three children aged fourteen, eleven and ten, to two fathers, the oldest of them was raised by the father of his younger siblings, and over a course of almost a decade became subject to both emotional, physical and sexual abuse on an almost routine basis.

Having run away from his home, the victim explained his suffering and was subsequently placed into foster care; whereupon, the stepfather denied all allegations with the full support of the victim’s mother; yet, when challenged, he displayed threatening behaviour before the local authority and was later sentenced to community service.

In light of those events, the two younger children were also placed into foster care, while the parents separated in order to obtain their return to the family home, despite recommendations by professional experts that the father remained an unacceptable risk to the children.

Following a hearing in the local court, the father was found guilty of sexually abusing the eldest child, while both parents were held to have been physically and emotionally abusive towards all three children, with particular regard to the eldest sibling, while the local authority responded by seeking care orders for the three children.

While it was agreed that the eldest was to remain in foster care, the younger children were designated a care plan involving their return to the mother; however, there was a degree of anxiety surrounding the absolute power of local authority decisions in such circumstances.

And so, mention was made of the potential human rights violation should the mother and children not retain a tenable relationship, along with the proposal of interim care orders to provide assurances to the family.

At the hearing the judge granted final care orders for all three children; and yet, over time the promises of the social workers and appointed guardians dissolved into disappointment, after none of the proposed programmes materialised.

Having been presented to the Court of Appeal, it was held that the local authority had abjectly failed on its promise to provide care, but was acquitted under arguments of monetary cuts and a reduction in public resources; whereupon, the mother contended that the court had erred in not considering her suggestions for interim care orders, and the children’s guardian sought relief under sections 6 (Acts of public authorities) and 7 (Proceedings) of the Human Rights Act 1998 (HRA); however, both arguments were dismissed.

Re W (Minors) (Care Order: Adequacy of Care Plan)

In this instance, the welfare of two boys aged ten and twelve years of age rested upon the intervention of the mother’s grandparents, who themselves resided in the United States of America.

Having met overseas, the parents returned to live in the United Kingdom, in order to marry before starting a family; however, during the course of their childhood, the boys had been subjected to numerous separations and reconciliations, and also spent considerable time living apart from one another while remaining in contact with both parents.

This chaotic existence had later given rise to questions concerning the ability of the parents to meet the needs of the children, in large part due to the deteriorating mental health of the mother, who had made insubstantial allegations against the father prior to the local authority applying for an emergency protection and interim care order.

Having established a care plan, it was agreed by the County Court that the two boys would be placed into foster care before the arrival of the American grandparents, who planned to live with them in the United Kingdom, despite reservations by the judge that their migration would materialise, and that the proposed therapy and marital management programmes would succeed, with particular emphasis on the mother’s diagnosed imbalances.

Upon challenge by the local authority in the Court of Appeal, it was held that the care plan had been prematurely executed; and so, the final care order was replaced with an interim order, while referring the case back to the awarding judge, an alteration which instigated reluctance by the grandparents to assume care of the boys unless under definite conditions.

This prompted the reissue of a final care order with the full support of the parents, albeit in argument that they would apply to have the order discharged if their reunion was not provided in due course.

For clarity, under section 33 of the Children Act 1989 an acting local authority is granted parental responsibility (PR) for the duration of the assigned care order and can therefore determine the rights of the parents in relation to their children; while under section 100, the courts are expressly denied interference with those powers; however, section 6 of the HRA 1998 prevents a public authority from acting in a way that proves incompatible with a Convention right, while section 7 allows those victim of such actions, to bring proceedings against them.

Section 8 (Judicial remedies) further enables the court to decide how best to provide legal remedy, or issue powers appropriate to its jurisdiction, which translates that where a local authority infringes art.8 of the HRA 1998 (Right to respect for private and family life), the deciding court can lawfully grant relief to those affected. 

More interestingly, under the Review of Children’s Cases Regulations 1991, a local authority is required to consider the possible discharge of a care order on a six-monthly basis (subject to the views and consideration of the child(ren) and parents), while section 3(1) of the Children Act 1989 provides that parents retain the same rights, duties, powers and parental responsibilities as before an order was made, therefore their civil rights are affected, but not wholly compromised.

Finally, section 38 of the Children Act 1989 provides the court with powers to issue interim care orders in order to provide safety and security for vulnerable children for a determined period.

With both cases put before the House of Lords, it became evident that in the first case, the Court of Appeal had introduced a ‘starring’ mechanism as a means of preventing failure to implement care plans, whereby each plan was marked with progressive indicators that when not reached in the agreed period, triggered automatic rights to reactivate the consultation process in order to avoid missed or overlooked public body requirements.

In the second case, no such mechanism had been used, which had prompted intervention by the Secretary of State for Health, who received claims that sections 31, 33(3),38 and 100 of the Children Act 1989 were incompatible with existing Convention rights, while the local authority had appealed against the alteration of the care order and the broadening of judicial powers to award interim orders.

Examination of the Children Act 1989 and suggested incompatibility with Convention rights after the introduction of ‘starring’, drew immediate reference to the overlapping rights of courts when care orders are in effect, and while the House appreciated that the inventive use of rudimentary measures was a decision privy to Parliament, and that while there was stark evidence to support legislative reform, it was simply ultra vires for the Appeal Court to act without restraint. 

An so, with regard to the overextension of the interim care orders when faced with an ill-prepared care plan, the House upheld the appeals bought by both a ministerial and public body, while taking time to remind the parties that:

“Where a care order is made the responsibility for the child’s care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority’s discharge of its responsibilities. That was the intention of Parliament.”