Date: Wed, 13 Oct 2004 09:32:12 +0100

From: Robert Stevens

Subject: Vicarious liability for intentional torts

4. Even if there are differences between children and fur coats and mortgages, holding that a school teacher - especially one at a one-teacher school - is acting within the scope of the authority when sexually abusing the children fits with Morris v Martin and Lloyd v Grace Smith, whereas those cases show that providing an opportunity to another employee (like the gardener example from Lister) is not within the scope.

I find this difficult to accept. Can we really say that the sexual abuse was a "wrongful mode of an authorised act" (Salmond test). The teacher, unlike the gardener, is authorised to care for the child. Is the abuse a wrongful mode of care? I would have thought it was exactly the opposite of care and outside the scope of the authority given.

Whatever one thinks of the above, it seems to me that the earlier HL decision in Armagas v. Mundogas, The Ocean Frost [1986] AC 717 is difficult to square with the new approach to vicarious liability. In deciding whether an employer was vicariously liable for the deceit of his employee the HL held that it was necessary to show that the employee had actual or ostensible authority to make the statement. In Lister v Hesley Hall, the abuse was clearly not authorised. It is not part of the business of a residential school to sexually assault boys, nor is it within the class of acts teachers are authorised to do. There was no 'ostensible' authority.

That there was actual or ostensible authority should be sufficient to hold the employer vicariously liable (Lloyd v Grace Smith) but should it be necessary?

Do we have one rule for deceit and another for other intentional torts? Or is The Ocean Frost now to be thought wrongly decided?

Robert Stevens
Barrister
Fellow and Tutor in Law
Lady Margaret Hall
Oxford University

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