Butterworth’s: Vicarious Liability of an Employer

Russell Jones and Walker

4 January 2012

Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church
2010 [EWCA] Civ 256

Unfortunately, in recent years, those cases involving vicarious liability which have reached the higher courts have had a sinister aspect to them. The oft cited examples of employees throwing snowballs or taking part in pranks, which ultimately injure one of their colleagues, have been replaced by shootings, significant fraud and, most recently, child abuse.

In Lister v Hesley Hall Limited [2002] 1 AC 215, a warden sexually assaulted those in his care at a school boarding house. The House of Lords (Lord Steyne giving the lead judgement) held the school vicariously liable for the warden’s actions. The foundation on which the decision was based was the “relative closeness of the connection between the nature of the employment and the particular tort”. In relation to the specific facts, Lord Millet stated that the employee “did not merely take advantage of the opportunity which his employment gave him, but he abused the special position”. Without the job title and the role that went with it the warden would not have had the opportunity to abuse the children.

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