Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 WLR 1311, [2001] 2 All ER 769 HL
Summary The defendants ran Axelholme House, which was attached to Wilsic Hall School in Doncaster. Local authorities would send children to the school and they would board at Axelholme House. The defendants employed Mr and Mrs Grain to run the house and maintain discipline. The claimants stayed at Axelholme House between 1979 and 1982. During that time they were sexually abused by Mr Grain. They sued the defendants, claiming that the defendants were vicariously liable in respect of the torts committed by Mr Grain when he sexually abused the claimants. The Court of Appeal dismissed the claimants’ actions on the grounds that Mr Grain was not acting in the course of his employment by the defendants when he sexually abused the claimants. The House of Lords reversed the Court of Appeal’s decision, holding that because there was a “close and direct” connection between what Mr Grain was employed to do and Mr Grain’s sexual abuse of the claimants, the defendants were vicariously liable in respect of the torts committed by Mr Grain when he sexually abused the claimants.

Comments It is not an understatement to say that this is the most important decision on vicarious liability ever handed down by the House of Lords. It’s unfortunate, then, that the decision is so badly flawed. Two criticisms may be made. First, the reasoning underlying the decision is sloppy, to say the least. Second, the decision is productive of huge uncertainty in the law. Let’s take each criticism in turn. (1) The first criticism. Let’s begin by making clear the distinction between personal liability and vicarious liability. If A commits a tort in relation to B and as a result is held liable to pay damages to B, we say that A is personally liable to pay damages to B. If A commits a tort in relation to B