-----Original
Message-----
From: Robert Stevens
Sent: 13 October 2004 09:32
To: Jason Neyers; Harold Luntz; Harold Luntz
Subject: Re: FWD: ODG: Re: 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?
