XadccLister v Hesley Hall Ltd  UKHL 22 is a House of Lords decision regarding vicarious liability, famous for overturning the Salmond test, and articulating the modern test for "acting in the course of employment" the Close Connection test. The judges in this case was heavily influenced by the Canadian Supreme Court's decision in Bazley v Curry (a case with almost identifcal facts). The Close Connection test existed before Lister, it had been used in Morris v CW Martin and Heasmans v Charity Cleaning but was never expressly articulated until Lister.
Hesley Hall was a boarding house for students with severe emotional problems, the warden Mr Graine had supervision of the pupils at Hesley Hall and their daily routine. It transpired during the early 90s that Mr Graine had sexually abused these children and they have suffered psychiatric injuries. Hesley Hall was sued in all sorts of tort from battery to negligence. As such situations, it is very complex to deal with due to the fact that it is a total mishap and other problems due to such law given.
The court was to uphold the Salmond test which required:
- The wrongful act must be authorised by the employer; or
- The wrongful mode was authorised.
This draconian rule meant that an employee engaging in a criminal act (such as the current case) will never be acting in the course of employment, would therefore in the context of the current case cause significant injustice. In the Court of Appeal the judges followed the case of Trotman and held that Hesley Hall is not liable.
When the case went up to the House of Lords, the Law Lords unanimously held that vicarious liability is established, hence overruling Trotman. The House of Lords found:
- The purpose of the warden's duty was to develop trust with the children, that trust gave him access to the boys and allowed the abuse;
- There was geographical and temporal proximity to the employment, as the abused occured on the premise of his employment and during the time which he should be carrying out his employment duties;
- There is an inherent risk of sexual abuse in these types of occupations, for the courts to find Hesley Hall liable could potentially be a deterrent to potential abusers.
Lord Steyn whose judgment is the most often cited said that the warden's criminal acts are inextricably interwoven with his duties, hence it is closely connect to his work therefore Hesley Hall is liable under vicarious liability.
Lord Hobhouse on the otherhand reject the whole notion of vicarious liability, and argued that Hesley Hall owned a direct duty to the children, therefore they are directly liable in tort for systemic negligence.
Lord Millett preferred a wider approach than Bazley, i.e. any risk that are incidental to employment will give raise to vicarious liability. This approach is based on enterprise theory in criminology.