302
The Irish Reports
[2009]
Louise O’Keeffe, Plaintiff v. Leo Hickey, The Minister
for Education and Science, Ireland and The Attorney
General, Defendants [2008] IESC 72, [S.C. No. 174 of
2006]
Supreme Court
19th December, 2008
Tort – Negligence – Liability – Vicarious liability – Liability of State for school
managed by religious order – Sexual assault on pupil at school – Whether State
vicariously liable – Control – Salmond test – Whether direct employment
relationship existed – Scope – Whether “close connection” test appropriate –
Whether vicarious liability should be extended on basis of enterprise liability –
Whether broader policy rationales should be taken into account – Constitution of
Ireland 1937, Article 42.
The plaintiff brought an action for damages for personal injuries arising from a
series of sexual assaults committed by the first defendant on her in 1973 in her national
school where the first defendant was the principal. The school was owned, managed
and run by a private religious group but recognised by the State as a national school.
The plaintiff claimed that the second, third and fourth defendants (hereinafter “the
State”) were vicariously liable for the tortuous acts of the first defendant.
The plaintiff appealed to the Supreme Court against the decision of the High Court
(de Valera J.) dismissing her claim against the second, third and fourth defendants
while holding that the State was not vicariously liable for the acts of sexual abuse of the
first defendant (see [2006] IEHC 13).
Held by the Supreme Court (Murray C.J., Denham, Hardiman and Fennelly JJ.,
Geoghegan J. dissenting), in dismissing the appeal, 1, that the State defendants were not
liable to the plaintiff for the actionable wrongs committed against her by the first
defendant as there was no direct employment relationship between the first defendant
and the State.
Fox v. Higgins (1912) 46 I.L.T.R. 222; McEneaney v. Minister for Education
[1941] I.R. 430 and Crowley v. Ireland [1980] I.R. 102 followed.
Per Geoghegan J. dissenting: that in the circumstances of the relationship between
Church and State, in relation to the school, exemption from vicarious liability by the
State was not just, as there was quite sufficient connection between the State and the
creation of the risk to render the State liable.
Moynihan v. Moynihan [1975] I.R. 192; Bazley v. Curry (1999) 174 D.L.R. (4th)
45; Blackwater v. Plint [2005] 3 S.C.R. 3; Lister v. Hesley Hall Ltd. [2001] UKHL
22, [2002] 1 A.C. 215 and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71 followed.
2. That the State could not be liable for the first defendant’s tortious and criminal
acts on the ordinary and established principles of vicarious liability. The first defendant
was not the State’s employee: he was employed by the patron of the school and
directed and controlled by the school’s manager. Accordingly, there was no question of
the second defendant or any of the State defendants as having put the first defendant in
his position as a national school teacher to do the class of acts in respect of which the
action was brought. The Minister laid down rules for national schools but they were
general in nature and did not allow him to govern the detailed activities of any
2 I.R.
O’Keeffe v. Hickey
303
S.C.
individual teacher. As a result of the system historically in place, the Minister was
deprived of direct control of the schools.
Fox v. Higgins (1912) 46 I.L.T.R. 222; McEneaney v. Minister for Education
[1941] I.R. 430 and Crowley v. Ireland [1980] I.R. 102 followed.
3. Per Hardiman J. (Murray C.J. concurring), That vicarious liability was a form of
strict liability which could be immensely burdensome on the party upon whom it was
imposed. It only existed in a situation where the paying party said to be vicariously
liable had a real and actually exercisable power of control, in the relevant area of
behaviour, over the person for whom it was said to be vicariously liable. The very
possibility of tortious liability, on a strict or no fault basis, constrained the legitimate
actions of individuals and professions. Unpredictable liability in tort would create huge
social and economic consequences. The law could not be so flexible that it could be
used to provide compensation in the absence of liability.
Moynihan v. Moynihan [1975] I.R. 192 considered.
4. Per Hardiman J. (Murray C.J. concurring), That it was lacking in fundamental
justice to impose liability on a person simply because he was, or was thought to be, in a
position to pay compensation. It was wrong to impose the status of wrongdoer and the
liability to pay compensation without fault for acts outside the scope of employment.
Broader policy rationales could not justify the novel imposition of strict liability on an
innocent employer for acts quite outside the well established Salmond test, that an
employee’s wrongful conduct is said to fall within the cause and scope of his or her
employment where it consists of either (1) acts authorised by the employer or (2)
unauthorised acts that are so connected with the acts that the employer has authorised
that they may rightly be considered as modes, although improper modes, of doing what
has been authorised. The “close connection” test could not be regarded as a principled
one and it would not be proper to ground vicarious liability on that test as this would
result in uncontrolled, highly subjective discretion.
Trotman v. North Yorkshire County Council [1999] L.G.R. 584 approved; Bazley
v. Curry (1999) 174 D.L.R. (4th) 45; Jacobi v. Griffiths (1999) 174 D.L.R. (4th)
71; Lister v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215; Rose v. Plenty
[1976] 1 W.L.R. 141 and New South Wales v. Lepore [2003] HCA 4, (2003) 195
A.L.R. 412 not followed.
5. Per Fennelly J. (Murray C.J. and Denham J. concurring), That the common law
decisions in Canada and Australia enabled liability to be imposed, depending on the
facts of the individual case, on employers for wrongful criminal acts of employees and
thus for acts going beyond any theory of authority or of a merely wrongful mode of
doing the employer’s work. The test was the closeness of the connection between the
abuse and the work which the employee was engaged to carry out. It was appropriate to
adopt a test based on a close connection between the acts which the employee was
engaged to perform and which fell truly within the scope of his employment and the
tortious act of which complaint was made. The close connection test was both well
established by authority and practical in its content. It was essentially focussed on the
facts of the situation. It did not, in principle, exclude vicarious liability for criminal acts
or for acts which were intrinsically of a type which would not be authorised by the
employer. The law regarded it as fair and just to impose liability on the employer. All
depended on a careful and balanced analysis of the facts of the particular case.
New South Wales v. Lepore [2003] HCA 4, (2003) 195 A.L.R. 412; Delahunty v.
South Eastern Health Board [2003] 4 I.R. 36; Lloyd v. Grace, Smith and Company
[1912] 1 A.C. 716; Morris v. C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716,
304
S.C.
O’Keeffe v. Hickey
[2009]
Johnson & Johnson (Ir.) Ltd. v. C.P. Security Ltd. [1985] I.R. 362; Bazley v. Curry
(1999) 174 D.L.R. (4th) 45 and Lister v. Hesley Hall Ltd. [2001] UKHL 22,
[2002] 1 A.C. 215 approved; Cheshire v. Bailey [1905] 1 KB 237 and Barwick v.
English Joint Stock Bank [1867] L.R. 2 Exch. 259 considered.
6. Per Hardiman J. (Murray C.J. concurring), That, if the law was to be altered to
provide for a broader basis or formulation of the circumstances which might give rise to
vicarious liability, like enterprise liability or some form of strict liability, that such was
a more appropriate matter for legislative rather than judicial determination.
Sinnott v. Minister for Education [2001] 2 I.R. 545 and T.D. v. Minister for Education [2001] 4 I.R. 259 followed.
7. Per Geoghegan J. dissenting, That even though the State was not in a contractual relationship of any kind with the first defendant, vicarious liability was not
necessarily confined to the tortfeasor’s employer in the contractual sense. Common law
jurisdictions such as Australia, Canada and England had long abandoned the principle
that there could not be vicarious liability for deliberate unauthorised acts.
Bazley v. Curry (1999) 174 D.L.R. (4th) 45; Blackwater v. Plint [2005] 3 S.C.R. 3;
Lister v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215 and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71 considered.
Cases mentioned in this report:Barwick v. English Joint Stock Bank [1867] L.R. 2 Exch. 259.
Bazley v. Curry (1999) 174 D.L.R. (4th) 45; [1999] 2 S.C.R. 534.
Blackwater v. Plint [2005] 3 S.C.R. 3; [2005] S.C.C. 58.
Canadian Pacific Railway Co. v. Lockhart [1942] A.C. 591; [1942] 2
All E.R. 464.
Cheshire v. Bailey [1905] 1 K.B. 237; [1905] W.N. 2.
Crowley v. Ireland [1980] I.R. 102.
T.D. v. Minister for Education [2001] 4 I.R. 259.
Delahunty v. South Eastern Health Board [2003] 4 I.R. 361.
Doyle v. Fleming’s Coal Mines (Unreported, Supreme Court, 29th
July, 1955).
Duncan v. Finlater (1839) 6 C.I. & F. 894.
Fox v. Higgins (1912) 46 I.L.T.R. 222.
Health Board v. B.C. [1994] E.L.R. 27.
Imperial Chemical Industries v. Shatwell [1965] 1 A.C. 656; [1965] 3
W.L.R. 329; [1965] 2 All E.R. 999.
Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71; [1999] 2 S.C.R. 570.
Johnson & Johnson (Ir.) Ltd. v. C.P. Security Ltd. [1985] I.R. 362;
[1986] I.L.R.M. 560.
Lawlor v. O’Connor (1929) 63 I.L.T.R. 103.
Limpus v. London General Omnibus (1862) 1 H. & C. 526.
Lister v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215; [2001]
2 W.L.R. 1311; [2001] 2 All E.R. 769.
2 I.R.
O’Keeffe v. Hickey
305
S.C.
Lloyd v. Grace, Smith and Company [1912] 1 A.C. 716; [1911] 2 K.B.
489; [1912] W.N. 213.
McEneaney v. Minister for Education [1941] I.R. 430.
Morris v. C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716; [1965] 3
W.L.R. 276; [1965] 2 All E.R. 725.
Moynihan v. Moynihan [1975] I.R. 192.
New South Wales v. Lepore [2003] HCA 4, (2003) 195 A.L.R. 412;
212 C.L.R. 511; 77 A.L.J.R. 558.
Rose v. Plenty [1976] 1 W.L.R. 141; [1975] I.C.R. 430; [1976] 1 All
E.R. 97.
Shortt v. Commissioner of An Garda Síochána [2007] IESC 9, [2007]
4 I.R. 587.
Sinnott v. Minister for Education [2001] 2 I.R. 545.
Trotman v. North Yorkshire County Council [1999] L.G.R. 584;
[1999] I.R.L.R 98.
Udell v. Atherton (1861) 30 L.J. Ex. 337.
Williams v. A. & W. Hemphill Ltd. [1966] S.C. (H.L.) 31.
Williams v. Morrissey (1903) 37 I.L.T.R. 65.
Appeal from the High Court
The facts have been summarised in the headnote and are more fully set
out in the judgments of Hardiman, Geoghegan and Fennelly JJ., infra.
The plaintiff’s claim for damages against the second to fourth
defendants for personal injuries suffered by her as a result of sexual
assaults on her by the first defendant was dismissed by the High Court (de
Valera J.) on the 20th January, 2006 (see [2006] IEHC 13). She obtained
judgment in default of defence against the first defendant before the High
Court by order of the 8th November, 1999.
By notice of appeal dated the 9th May, 2006, the plaintiff appealed the
order of the High Court (de Valera J.) to the Supreme Court. The appeal
was heard by the Supreme Court (Murray C.J., Denham, Hardiman,
Geoghegan and Fennelly JJ.) on the 11th, 12th and 13th June, 2008.
Frank Callanan S.C. and David Holland S.C. (with them Alan
Keating) for the plaintiff.
James O’Driscoll S.C. and Feichín McDonagh S.C. (with them Ronan
Dolan) for the second, third and fourth defendants.
Cur. adv. vult.
306
S.C.
O’Keeffe v. Hickey
Murray C.J. Denham J. Hardiman J.
[2009]
Murray C.J.
19th December, 2008
[1] I agree with the judgments of both Hardiman and Fennelly JJ.
Denham J.
[2] I agree with the judgment of Fennelly J.
Hardiman J.
[3] This case raises difficult issues in the area of vicarious liability and
Church/State relations. The plaintiff says that 35 years ago she was
sexually assaulted by a teacher at school. The school was owned and run
by a private religious group but was recognised by the State as a national
school. The assaults took the form of inappropriate touching and feeling of
her body. Many years later she sued the teacher and received a very
substantial award of damages. But she has not been able to recover much if
any of this from the now retired teacher. She has also made a successful
claim to the Criminal Injuries Compensation Tribunal, but is dissatisfied
with the amount awarded (about £53,000). In the present action she claims
that the second, third and fourth defendants, that is the taxpayer, should
compensate her for what happened. This would require an enormous
revolution in the principles of vicarious liability as applied in Ireland.
[4] The plaintiff has not sued the religious group who managed the
school, the trustees of its property, or its officials past or present. She has
sued the State defendants, claiming that they are liable to compensate her,
either directly or vicariously. The trial judge dismissed the allegations of
negligence against the State and no appeal has been taken from this
finding. The case is therefore one of alleged vicarious liability.
[5] These defendants say that they are not liable. They did not own or
run the school, or appoint the teachers. They did fund the management of
the school, as mandated by the Constitution, and paid the teachers whom
the religious officials appointed. They also laid down the academic
syllabus (except in religious instruction) and inspected the secular instruction given. But they were excluded from the running of the school. That
function had been conferred on the religious authorities, by long standing
legal arrangements brought about by a campaign by all the major religious
bodies in Ireland back in the nineteenth century.
[6] The State does not assert that the Church authorities are liable to
the plaintiff. The authorities know nothing of the facts of the case of their
own knowledge. But they say that the Church authorities, by their own
wish, manage and administer the school and select the teachers, to the
exclusion of the second defendant (hereinafter “the Minister”) from these
2 I.R.
O’Keeffe v. Hickey
Hardiman J.
307
S.C.
functions. The Minister is quite removed from the management and control
of the school and staff by legal arrangements in place since before the State
was founded. This is the so called “managerial system”, which has
prevailed in Ireland, for historical reasons, for more than 150 years.
[7] In summary, a grievous wrong has been committed by a “man of
straw” who apparently cannot pay compensation. The plaintiff has not sued
the religious authorities for whom the perpetrator worked. Can the State be
forced to pay with public, that is, taxpayers’ money? We have been told
that a great many other cases await the result. If the question is answered in
the negative, the plaintiff may have to be content with the award made to
her by the Criminal Injuries Compensation Tribunal.
[8] This is the plaintiff’s appeal against the decision of the High Court
(de Valera J.) whereby he dismissed the plaintiff’s claim against the second
third and fourth defendants. de Valera J.’s judgment was delivered on the
20th January, 2006, and the order was perfected on the 24th October, 2006
(see [2006] IEHC 13).
Factual background
[9] The plaintiff was born in November, 1964 and is now 44 years of
age. She was married but is now separated and has two young children.
[10] The first defendant is a retired teacher who was born in 1939. In
August, 1962 he was appointed as principal of Dunderrow school near
Kinsale in Co. Cork. This school is within the Catholic diocese of Cork and
Ross. It was owned, on the evidence, by the trustees of that diocese. At the
time material to this case, the patron of the school was the late Dr. Lucey,
Bishop of Cork and Ross and the manager of the school was an Archdeacon Stritch. The latter, however, was an elderly gentleman and it appears
that at all material times the actual functions of management came to be
carried out by a Fr. Ó Ceallaigh. The latter is described in the plaintiff’s
submissions as “the de facto manager of the school”.
[11] The judge found that the abuse occurred in the latter part of the
school year ending in the summer of 1973, according to the plaintiff’s
pleadings, or at the latest up to September, 1973.
[12] It would appear that there was considerable local concern about
the first defendant’s behaviour leading to the parent of another child
approaching Fr. Ó Ceallaigh. In September, 1973 the first defendant
resigned from his position. After a period of sick leave he was appointed as
a teacher in a boys’ national school in Ballincollig where, on the evidence,
he taught until his retirement in 1995. He did so without complaint, as far
as the evidence goes.
308
S.C.
O’Keeffe v. Hickey
Hardiman J.
[2009]
[13] The plaintiff made no complaint at the time of these events though
a little later, when specifically questioned by her mother, she indicated that
something of a sexual nature had occurred. This was a very brief
conversation and, according to the plaintiff’s submissions on appeal did not
go “further than that very minimal description”.
[14] Many years later, in 1996, another former pupil of Dunderrow
school complained to the gardaí about what had happened there. The
gardaí contacted the plaintiff in November, 1996 and she made a statement
in January, 1997. According to the plaintiff’s submissions, she was herself
surprised at her reaction to giving this statement:- “she was surprised at
how much it meant to her to give the statement and describe what had
happened to her … it struck her that this was something more important to
her than she had hitherto imagined.”
[15] The plaintiff was subsequently referred for counselling.
[16] In the meantime, in June, 1998, the first defendant was convicted
on a plea of guilty to 21 sample charges of abuse in Dunderrow school.
The plaintiff says that the sentencing hearing “was the first point at which
[she] appreciated that the difficulties she had suffered in her life were to a
very considerable degree the result of what the first defendant had done to
her”. She was subsequently referred for a psychiatric assessment/
counselling. The difficulties referred to were of a marital nature.
[17] According to the plaintiff’s account, she was concerned that the
first defendant had not, before the issue of these proceedings, been exposed
as a paedophile. His name had not been published as a result of the
criminal prosecution. His standing in the community did not seem, as far as
the plaintiff could discern, to reflect the wrongs he did to numerous young
girls placed in his care. This, far beyond any monetary compensation, was
a significant purpose in instituting proceedings as was the aim of making
people aware of what had happened to her and who it was that did this to
her, she says.
[18] On the 27th October, 1998, the plaintiff made an application for
compensation to the Criminal Injuries Compensation Tribunal. She was
awarded a sum of slightly more than £53,000. She issued the present
proceedings on the 29th September, 1998. In November, 1999 she obtained
judgment in default of defence against the first defendant, the perpetrator
of the abuse. On the 24th October, 2006, damages were assessed against
him in the total sum of €305,104 made up as follows:(a) general damages - €200,000;
(b) aggravated damages - €50,000;
(c) exemplary damages - €50,000;
(d) special damages - €5,104.
2 I.R.
O’Keeffe v. Hickey
Hardiman J.
309
S.C.
[19] The trial of the action against the other defendants commenced on
the 2nd March, 2004 and ended on the 12th March, 2004. The plaintiff’s
claim against the State defendants fell into three headings as follows:“(1) Negligence on the part of the State arising out of the failure of the
State defendants to put in place appropriate measures and procedures to protect and to cease (sic) the systematic abuse which the
first defendant had on the evidence embarked from 1962 in Dunderrow national school of which she was very much one of the latter victims.
(2) Vicarious liability in relation, not merely to the first defendant, but
also in relation to the curate Fr. Ó Ceallaigh who was the de facto
acting manager, to whom the evidence established that a complaint
of sexual abuse of a pupil by that girl’s mother was made in or
about 1971 on foot of which Fr. Ó Ceallaigh took no action.
(3) The constitutional role and responsibility of the State defendants in
the provision of primary education arising under Article 42 of the
Constitution and the measures which the second defendant, the
Minister, had adopted and the steps put in place to discharge those
responsibilities.”
[20] On the 9th March, 2004, the trial judge non-suited the plaintiff in
respect of the claim in negligence but declined the defendants’ application
for direction or non-suit in relation to the other issues. There was further
extensive legal argument on those issues and a judgment was eventually
delivered on the 20th January, 2006 whereby the plaintiff’s claims under
the remaining two headings were dismissed (see [2006] IEHC 13). The
plaintiff’s appeal is against this judgment and order.
Parties not sued
[21] It is notable that although the plaintiff has sued the actual perpetrator of the abuse, the first defendant, and the State defendants, she has not
sued the patron of the school, Dr. Lucey, the diocese of which he was
Bishop, his successors or his estate. Neither has she sued the owners of the
school, stated in the papers to be the trustees of the property of the diocese
of Cork and Ross, nor the manager of the school, Archdeacon Stritch, nor
his de facto substitute, Fr. Ó Ceallaigh nor their respective estates or
successors.
Legal standing of national schools
[22] The history of national education in Ireland goes back to 1833
when the system was established by direct executive action. Subsequently
310
S.C.
O’Keeffe v. Hickey
Hardiman J.
[2009]
the executive role was, under British rule, conducted by the Board of
Commissioners of National Education. After the establishment of the Irish
Free State, and later of the State itself, the executive role devolved onto the
Minister for Education. Arrangements were come to at a remote date which
seem rather odd today and can only be understood in the context of Irish
history in the early part of the 19th century.
[23] The period between the Act of Union in 1800 and the concession
of Catholic emancipation in 1829 was one of acute denominational conflict
and proselytism. The Established (Anglican) Church of that time undertook
a considerable missionary programme, part of which took the form of the
establishment of schools such as the Kildare Place Schools. Both the
dissenting churches and the Roman Catholic Church were anxious that
children of their respective denominations respectively be educated in
schools controlled by those denominations respectively and not by the
State or the established Church. In the achievement of this objective they
were remarkably successful and brought about, from the very beginning of
the system of national education, a situation in which the government
authority, then the Irish executive, paid for the system of national education
but did not manage it or administer it at the point of delivery: this function
was left to the local manager, usually (invariably in the case of Roman
Catholic schools) a cleric, and usually appointed by the local Bishop who
was the patron of the school. This situation forms an interesting contrast
with the situation of the very few schools which the public authority did
maintain and run itself. These “model schools” were indeed State schools
in the full sense being supported, administered and staffed by public
servants appointed by the public authority.
[24] The principles underpinning the above situation are outlined in the
very first document which might be regarded as illustrating the constitution
of the national education system:- the “stanley letter” of 1833, so called
after the then Chief Secretary for Ireland who signed it. It may be recalled
that both Lord Stanley and the Catholic Bishop of Kildare and Leighin, Dr.
James Doyle, a well known controversialist under the name “JKL”,
favoured a non-denominational State run education for all, but were
thoroughly overborne.
[25] It is a remarkable feature of 19th century Irish history that, in a
time during which, almost throughout Europe, a firmer distinction than
previously was being made between Church and State, and Church
influence in the provision of public services, including education, was
ebbing, in Ireland the position of the clerical interest actually became
stronger and more entrenched. I respectfully agree with what was said in
evidence by one of the witnesses in this case, Professor Coolahan:-
2 I.R.
O’Keeffe v. Hickey
Hardiman J.
311
S.C.
“The managerial system stayed intact, and indeed the managerial
authorities, particularly the Catholic authorities, were very clearly
articulate and very absolutely, shall we say, precise in how they
interpreted what the situation was for national schools in the new
Ireland, and I have the documentation in the book. It had to be Catholic
schools under Catholic management, Catholic teachers, Catholic
children. It was a very clear enunciation of this.”
[26] There, the professor, who is the author of the standard work on the
history on the Irish educational system, was describing the position after
the inception of the Irish Free State. It was one of marked continuity from
the previous regimes. He goes on to say that a very striking thing following
the establishment of the Department of Education by the Ministers and
Secretaries Act 1924 was the continuity of tradition. Going forward 30
years, to the early 1950s, the professor described a dispute which arose
when the Irish National Teachers’ Organisation sought the establishment of
local committees to take responsibility for the maintenance and repair of
school buildings and similar management functions, though not otherwise
to interfere with the authority of the manager. The attitude of the Roman
Catholic Church, then led by Cardinal Dalton, was described by the
professor as follows:“Eventually Cardinal Dalton took a very strong view on this issue
and said there should be no interference whatever with the inherited
tradition of managerial rights of schooling and it did not matter, because it was the thin edge of the wedge in his view, if local authorities
[only] took control of the maintenance of schools. In due course, he
said, it might intrude into other aspects of the manager’s authority visà-vis the appointment and dismissal of teachers which was of course
the key concern that had been fought for and won over the years” (emphasis added).
[27] Between the times discussed in these two extracts from Professor
Coolahan’s evidence, of course, the Constitution had been enacted. Article
42 thereof relates to education and is worth setting out in full:“1 The State acknowledges that the primary and natural educator of
the child is the Family and guarantees to respect the inalienable
right and duty of parents to provide, according to their means, for
the religious and moral, intellectual, physical and social education
of their children.
2 Parents shall be free to provide this education in their homes or in
private schools or in schools recognised or established by the
State.
3 1° The State shall not oblige parents in violation of their
conscience and lawful preference to send their children to
312
S.C.
O’Keeffe v. Hickey
Hardiman J.
[2009]
schools established by the State, or to any particular type of
school designated by the State.
2° The State shall, however, as guardian of the common good,
require in view of actual conditions that the children receive a
certain minimum education, moral, intellectual and social.
4 The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it,
provide other educational facilities or institutions with due regard,
however, to the rights of parents, especially in the matter of religious and moral formation.
5 In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian
of the common good, by appropriate means shall endeavour to
supply the place of the parents, but always with due regard for the
natural and inprescriptible rights of the child.”
[28] There is no suggestion, in this case, that Article 42.5 has any application. Considering, then, the balance of Article 42, it is asserted that
children must receive “a certain minimum education” but the parents are
recognised as the natural primary educators. It is said that the parents are
free to provide that education “in their homes or in private schools or in
schools recognised or established by the State”. This provision, in Article
42.2, has a particular relevance because it disposes of a contention by the
plaintiff that she was in some way obliged to attend Dunderrow school or a
school of that type.
[29] At Article 42.4 it is seen that the State is to “provide for” free
primary education and in that connection to “endeavour to supplement and
give reasonable aid to private and corporate educational initiative”. It is
however obliged “to provide” other educational facilities when the public
good requires it. The distinction between “providing for” and “providing”
lies at the heart of the distinction between a largely State funded but
entirely clerically/administered system of education on the one hand and a
State system of education on the other. This distinction will be further
referred to in discussing the authorities on the subject. It is however made
perfectly clear in the primary, Irish language, version of Article 42.4 where
the relevant contrasting phrases are “socrú a dhéanamh chun bunoideachas
a bheith ar fáil in aisce” (“to arrange that free primary education is available”) and “áiseanna nó fundúireachtaí eile oideachas a chur ar fáil”
(“provide other educational facilities and institutions”).
[30] Moreover, the reference to reasonable aid to “private and
corporate educational initiative” aptly describes the practice already long
established in 1937, which has continued since, whereby the State
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“provided for” the availability of free primary education very largely by
making available to private groups, religious or otherwise, financial aid or
assistance for the provision of primary education. The papers in this case
suggest there are some 3,000 national schools; most of these are under the
control of Roman Catholic patrons and managers, but others are under the
control of religious or religiously appointed managers of different
denominations and some are under the control of non-denominational
groups. It has not to my knowledge been suggested, and certainly not
suggested in this case, that the State’s operation and discharge of its
obligations under Article 42.4 has resulted in unfairness to any one
religious denomination by comparison with others, but in almost all cases
the private group involved, usually a religious one, runs the school, not the
State or the Minister.
[31] The constitutional provisions quoted above are, of course, merely
the foundation of the elaborate arrangements for the provision of primary
education. In recent times, and after more than a century and a half, the
provision of education has been placed at least partially on a statutory
basis, very belatedly, by the Education Act 1998. At all times prior to that,
and in particular at the time to which the plaintiff’s complaint relates, the
role of the State, and of the Minister, in relation to the educational system
(such as it was) was administered by and under the rules for national
schools and a great body of circular letters issued by the department. In
this, the authorities of the modern State were carrying on the traditions
established in the 19th century under the Commissioners for National
Education.
Some leading cases
[32] The only pre-independence and pre-Constitution case which I
consider important to cite is that of Fox v. Higgins (1912) 46 I.L.T.R. 222.
This was a judgment of Gibson J. of the former High Court of Ireland. A
teacher was suing a new manager for failure to reappoint him after the
death or retirement of the manager who had first employed him. Gibson J.
held at p. 224 that “the National Board, the manager, and the teacher are
put together in a kind of triangular pact”. The reference here to the “Board”
is a reference to the Board of National Education, i.e., the executive body,
the predecessor of the Minister. The significance of the citation is that the
phrase “triangular pact” has later been used in subsequent cases as a
description of the relationship between the relevant parties.
[33] In McEneaney v. Minister for Education [1941] I.R. 430 at pp.
438 to 439, Murnaghan J. in this court, in a judgment which was concurred
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in by his colleagues, sketched the history of the Irish national education
system very much as outlined above:“For now more than a century it has been recognised that the
provision of primary education is a national obligation; and for very
many years this duty was entrusted to a corporate body created by
Royal Charter and called the Commissioners of National Education in
Ireland.
The funds necessary for the purpose of primary education were
provided by Parliament and handed over to this body to be
administered, but in administering these funds the Board devised a
mode of application known as the ‘managerial system.’
This system was adopted to obviate difficulties connected chiefly
with religious belief. In most cases the schools were not the property of
the Board but they were recognised by it as national schools. A
manager, e.g., the parish priest or rector of the Church of Ireland, was
nominated by an outside authority and the nomination was sanctioned
by the Board - when sanctioned the duties and functions of the
manager were minutely provided for in rules and regulations made by
the Board.
The selection of the teacher, who should, however, have the
prescribed qualifications, was left to the manager, but the salary of the
teacher was in general provided by the Board …
By the rules of the Board upon a change of manager the
succeeding manager was under an obligation to reappoint the existing
teachers under an agreement in writing in the same terms as the
agreement by which they had been previously appointed. Further,
whilst under the Rules the provision of salary for the teacher was made
in the form of a grant to the manager and was paid to him unless he
signed a request to have it paid direct to the teacher, the entire
conditions as to remuneration usually depended upon the action of the
Board.
As between the manager and the teacher legal rights and
obligations depended upon the contract to which the Board was not a
party, and it has been sought on behalf of the Department of Education
to treat this contract as one in which, as to its legal effects, the
Department was in no way concerned” (emphasis added).
[34] The judgment refers to the passage quoted above from Fox v.
Higgins (1912) 46 I.L.T.R. 222 with approval and continues at p. 440:“So far as the present case is concerned, as the manager did not
own the school and was not carrying it on for his personal benefit, he is
in the position of a trustee of an educational trust; but at the same time
the Board, acting as an independent authority, has made published
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Rules by which it has made representations to both the manager and
the teacher as to the way in which it would apply the funds entrusted to
it by Parliament. In so far as Parliament has left to the Board a free
discretion as to the application of these funds, the Board was legally
bound by the representations which it had made.”
[35] The legal and constitutional standing of national education was
further explored in Crowley v. Ireland [1980] I.R. 102. This case arose out
of an industrial dispute at Drimoleague national school. The teachers’ trade
union instructed the teachers in neighbouring parishes not to enrol pupils
from the Drimoleague parish. The pupils, relying on the constitutional
Articles cited above, subsequently sued for the interference with their
rights to free primary education. Speaking of Article 42 of the Constitution,
Kenny J. said, at pp.126 to 127:“The effect of that Article is that each child in the State has a right
to receive a minimum education, moral, intellectual and social; that the
primary and natural educator of the child is the family; and that the
State guarantees to respect the inalienable right and duty of parents to
provide this education. They may provide it in their homes or in
private schools or in schools recognised or established by the State.
However, the State is under no obligation to educate. The history of
Ireland in the 19th century shows how tenaciously the people resisted
the idea of State schools. The Constitution must not be interpreted
without reference to our history and to the conditions and intellectual
climate of 1937 when almost all schools were under the control of a
manager or of trustees who were not nominees of the State. That
historical experience was one of the State providing financial
assistance and prescribing courses to be followed at schools; but the
teachers, though paid by the State, were not employed by and could
not be removed by it: this was the function of the manager of the
school who was almost always a clergyman. So s. 4 of Article 42
prescribes that the State should provide for free primary education. The
effect of this is that the State is to provide the buildings, to pay to the
teachers who are under no contractual duty to it but to the manager or
trustees, to provide means of transport to the school if this is necessary
to avoid hardship, and to prescribe minimum standards.
The distinction between providing free education and providing
for it is brought out vividly in the Irish version which is [as quoted
above] … I think that the change from Article 10 of the Constitution of
the Irish Free State – ‘All citizens of the Irish Free State (Saorstát
Éireann) have the right to free elementary education’ - was intended to
emphasize that the State’s obligation was not to educate but to provide
for it. Thus, the enormous power which the control of education gives
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was denied to the State: there was interposed between the State and
the child the manager or the committee or board of management”
(emphasis added).
[36] I respectfully agree with the foregoing dicta of Murnaghan J. and
Kenny J. in this court or its predecessor.
Vicarious liability
[37] We have seen, above, that the plaintiff’s case was presented under
three headings, the second of which related to vicarious liability alleged to
exist for the criminal and plainly unauthorised acts of the first defendant,
but also for the alleged negligence of the curate Fr. Ó Ceallaigh who was
the de facto acting manager in respect of his alleged failure to take any step
on foot of a complaint made to him of a similar nature, in relation to
another child, in 1971. This is the only remaining claim.
[38] The principles of vicarious liability are stated as follows in chapter
43 of the Law of Torts (McMahon and Binchy, 3rd ed., Butterworths,
2000) at p. 1091:“The law is sometimes prepared to hold one person liable for the
wrong committed by another person even though the person held liable
is not at fault in the accepted sense of the word. Thus, the law may
hold the employer liable for the wrongs of an employee, the principal
liable for the wrongs of an agent or the firm liable for the wrongs of its
partner in spite of the fact that the employer, the principal or the firm
may not have been at fault in any way. When the law imposes liability
in these circumstances we speak of an employer, principal or firm being ‘vicariously liable’.”
[39] The generally accepted basis on which vicarious liability is imposed has come to be known as “the Salmond test” after the distinguished
academic of that name. This may be expressed as follows:“An employee’s wrongful conduct must, to render the employer
liable, fall within the course and scope of his or her employment. It
will do this where it consists of either:(i) acts authorised by the employer; or
(ii) unauthorised acts that are so connected to the acts that the employer has authorised that they may rightly be regarded as
modes - although improper modes - of doing what has been
authorised.”
[40] In the following paragraph of their text book, McMahon and
Binchy go on to endorse what they see as a new and more acceptable
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theory of vicarious liability, by comparison with an older and (to them) less
satisfactory one in the following words at p. 1092:“Historically speaking this example of strict liability can be traced
to earliest times although its modern form in England dates from the
end of the seventeenth century. It survived the ‘no liability without
fault’ era, to some extent as an anomaly, but nowadays with the trend
towards no-fault concepts it can be sustained by more modern
justifications such as risk creation and enterprise liability. In other
words, the concept of vicarious liability has dovetailed nicely with the
more modern ideas that the person who creates the risk, or the
enterprise which benefits from the activity causing the damage, should
bear the loss. Such persons or enterprises are in a good position to
absorb and distribute the loss by price controls and through proper
liability insurance. Liability in these cases should, it is felt, follow ‘the
deep pocket’.”
[41] I do not feel the unqualified enthusiasm which the authors evince
for what they believe to be the modern theory of vicarious liability. The
fact that a person or entity may have some resources (if only a private
dwelling house) does not in and of itself, in my opinion, convert him, her
or it into a “deep pocket”. More fundamentally, even if the pocket is
genuinely deep, that fact cannot in ordinary justice support the imposition
of liability on such a person where it would not be imposed on a poorer
person. And it is, with every respect, fatally easy for a writer in his study to
dismiss another person as a “deep pocket” when that other is not such and
does not so regard himself.
[42] I do not consider that companies, institutions or even the State
itself are necessarily to be considered in a different light than an individual.
A finding of liability for perhaps very serious or gross injuries is not a light
thing and has an effect quite separate from its consequences in damages.
The fact or risk of such a finding may have a “chilling effect”, even on
State, private or charitable initiatives and will certainly have an effect on
the cost of insurance. Nor can public funds, contributed originally by
individual tax payers, be regarded as a separate type of fund, infinite in
extent and invulnerable to an extension of the grounds of liability. Firstly,
these funds are in fact finite, secondly, justice surely demands that they,
like private or charitably held funds, should be paid out only in response to
a genuine claim and not have to meet a situation in which the very
existence of the funds is a factor tending to expose them to a new species
of liability. Finally, I do not consider that the second quotation from
McMahon and Binchy, above, is at all apt to describe the factual
circumstances of this case. That extract, on the contrary, deals exclusively
with commercial ventures. I am not to be taken as agreeing with it, even in
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the commercial context. But in the circumstances of this case it is, in my
opinion, nonsensical to speak of “risk creation”. I do not accept that the
State, in performing its constitutional duty to provide for free primary
education is creating a risk; this is further discussed below. Nor do I
consider that the State is to be equated to an “enterprise” which “benefits
from” the provision of free primary education. In other words I consider
that, even if a new species of vicarious liability should be introduced in a
commercial context based on a theory (surely not a legal one) of “risk
creation”, of which I am utterly unconvinced at present, it would not apply
in (what it has become fashionable to call) the factual matrix of the present
case.
[43] In any event, the authors of the work cited go on to quote with
unqualified enthusiasm the majority judgment in this court in Moynihan v.
Moynihan [1975] I.R. 192 in support of the proposition, at p.1092, that:“Other instances of vicarious liability can arise, where the law will
hold one person liable for the wrongs of another even though no formal legal relationship exists between the parties in question. Indeed, it
seems that in Ireland a person may be vicariously liable whenever he
or she has sufficient control over the activities of another” (emphasis
added).
[44] Moynihan v. Moynihan [1975] I.R. 192 indeed goes to support the
latter proposition. A small child was injured in her grandmother’s house, to
which her parents had brought her, when she pulled down a pot of tea on
herself. The tea had been made by her aunt who had then left the room to
answer the phone. The trial judge in the High Court had granted a direction
to the defendant, the grandmother, but the infant plaintiff was successful on
appeal to this court.
[45] It is of course almost inconceivable that an infant plaintiff suing
by her father would sue the father’s mother, the infant’s grandmother, if it
were anticipated that that lady, a widow, would have to pay the damages
herself. It seems inescapable that the action was taken in the hope of
accessing an insurance policy, perhaps the grandmother’s household
insurance. In any event, the majority judgment proceeded on the basis of
an elaborate legalistic analysis of the entirely casual relationship whereby
the defendant’s daughter had made a pot of tea in her mother’s house,
where she herself lived. What, it is speculated, if the daughter were an
employed domestic servant or a contractor? (But she was neither.) An
elaborate analysis, in my view highly artificial, took place of the
relationship leading to an adult daughter making a pot of tea in her family
home. I much prefer the more realistic analysis to be found in the
dissenting judgment of Henchy J. at p. 201:-
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“If a permissible inference from the facts is that the defendant
allowed Marie [the defendant’s daughter] to make a pot of tea and to
bring it into the breakfast-room, there were no special circumstances
capable of taking that commonplace delegation of a normally harmless
household chore out of the general rule that the negligence of an
independent contractor or a gratuitous obligor does not fall on the
employer or the person benefited.”
[46] It may be noted that the plaintiff in Moynihan v. Moynihan [1975]
I.R. 192 had not sued her aunt, the person alleged to be directly negligent,
but only the grandmother, hoped to be a “deep pocket”. The case appears
to me to be an early example of the dismantling or muddying of the long
established boundaries or limits of vicarious liability. This was done for the
very humane reason of helping an innocent injured party to recover
compensation, but it was done at a very considerable social cost, not often
considered or discussed, as to which see the citation below from the
judgment of Henchy J.
[47] But even on the basis of the regime mandated by Moynihan v.
Moynihan [1975] I.R. 192 which has contributed to so much litigation in
the intervening years, the essence of the liability is, as McMahon and
Binchy agree, control. At p. 1094 they say:“The decision is important because it clearly indicates that the control concept is used, not as a justification for vicarious liability, but
rather as a test to determine the persons for whose actions liability will
be imposed on the defendant. In other words, if the control element is
high then even in the absence of other features the subordinate may be
considered a de facto employee and provided the ‘controlled person’s’
acts relate to the ‘controller’s’ business the latter will be vicariously
liable for injury caused to third persons by such acts.”
[48] In all cases where there is a serious injury to an innocent person,
there is a human tendency to wish that that person should be compensated.
But the social and economic consequences of providing a law so flexible
that it can be used to provide compensation in the absence of liability in the
ordinary sense is addressed by Henchy J. in the same case at pp. 202 to
203:“Much as one might wish that the law would allow this plaintiff to
recover damages from some quarter for the consequences of the
unfortunate accident that befell her, the inescapable fact is that there is
a complete absence of authority for the proposition that liability should
fall on the defendant (who was innocent of any causative fault) rather
than on Marie whose conduct is alleged to have been primarily
responsible for the accident. I see no justification for stretching the law
so as to make it cover the present claim when, by doing so, the effect
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would be that liability in negligence would attach to persons for casual
and gratuitous acts of others, as to the performance of which they
would be personally blameless and against the risks of which they
could not reasonably have been expected to be insured. To transfer or
extend liability in those circumstances from the blameworthy person to
a blameless person would involve the redress of one wrong by the
creation of another. It would be unfair and oppressive to exact
compensatory damages from a person for an act done on his behalf,
especially in the case of an intrinsically harmless act, if it was done in a
negligent manner which he could not reasonably have foreseen and if unlike an employer, or a person with a primarily personal duty of care,
or a motor-car owner, or the like - he could not reasonably have been
expected to be insured against the risk of that negligence” (emphasis
added).
[49] I wish to emphasise that we have not been invited to overrule
Moynihan v. Moynihan [1975] I.R. 192 and no argument to that effect was
addressed to us on the hearing of this appeal. But the contrasting
approaches of Walsh and Henchy JJ. in that case express and illustrate
what must be a perennial theme in this area. No doubt there are many who
would be happy to see, even at the cost of some “stretching” of the law, a
situation in which the public purse or a vast insurance company, would
have to pay compensation to an innocent party. They would not, perhaps,
be so willing to accept this situation if the paying party is an ordinary
householder who may not always be insured, or adequately covered, or if
the effect of making the public purse an insurer of all, or almost all, forms
of misfortune, is hugely to increase the cost of insurance to the point where
it has an effect on the macroeconomic position of the State, with obvious
consequences to the individual taxpayer. Equally, there may be some
reluctance to compensate at all costs and regardless of blameworthiness, if
the paying party is a charity or benevolent association of some kind, or,
still worse, an individual who has become involved with such an
organisation and comes to be deemed, by the process of “stretching” the
law, to be the employer or “controller” of some wrongdoer.
[50] Moynihan v. Moynihan [1975] I.R. 192 was, however, a one off
action by a child against her grandmother with no obvious or immediately
direct social or macroeconomic effects. This is not to say that it was
entirely without such effects; in my view it represented a significant step
on the road to the situation in which it is widely believed that every
misfortune must be compensatable and that if misfortune is caused by an
insolvent person, or an unascertained person, or a person not amenable, it
should be compensated by the nearest solvent mark, or in the last resort by
the State itself. In the present case the misfortune has in fact been
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compensated by the State, through the Criminal Injuries Compensation
Tribunal, but the plaintiff is dissatisfied with the amount of such
compensation.
[51] It appears to me that the following observations can be made
about tortious liability for an injury suffered by another:(1) such liability has consequences beyond the obligation to pay a
cash sum. It is salutary to remember that a tortfeasor - joint or
single - is referred to in the Civil Liability Acts as a “wrongdoer”
and the stigmatisation of the paying party as such is, in my view,
legally and morally a condition precedent to an order to
compensate for one’s own act (see the Civil Liability Act 1961, s.
2);
(2) apart from financial or reputational loss, the very possibility of
tortious liability, and especially such liability on a strict or no-fault
basis, constrains the legitimate actions of individuals, professions
and other groups and even public authorities by what the
American jurisprudence describes as a “chilling effect”. This, for
instance, is said to have given rise to “defensive” medicine and its
equivalent in other fields;
(3) unpredictable liability in tort creates huge social and economic
problems including that of correctly estimating one’s insurance
needs and of sudden unpredicted liabilities occurring which may
be very damaging to an individual group or corporation, whether
State run or otherwise;
(4) vicarious liability is a form of strict liability which can be immensely burdensome on the party upon whom it is imposed. It
cannot in my view justly occur at all except in a situation where
the paying party said to be vicariously liable has a real and actually
exercisable power of control, in the relevant area of behaviour,
over the person for whom it is said to be vicariously liable.
[52] The foregoing are observations on vicarious liability as it is
known in Irish law at present. Broader aspects of this concept, such as what
the learned authors cited above describe as “enterprise liability” or “risk
creation liability” will be discussed separately. But it is worth noting that
the eternal quest for a “deep pocket” which can be made liable not merely
proceeds apace, but at an ever increasing pace: one learns through the
internet of Australian litigation directed at demonstrating that the
manufacturer of a mobile phone has a vicarious liability for injury caused
by a driver who loses control of his vehicle while speaking on a mobile
phone. And on the 22nd October, 2008, it is reported in The Irish Times
that a Circuit Court Judge in Cork predicted that if parents continued to sue
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for playground accidents, children would not be allowed to run or play in
school yards.
Control
[53] By reason of the foregoing the first exercise which is to be carried
out in deciding the present case is whether or not the Minister, the most
directly involved of the State defendants, is in a relationship with the first
defendant sufficient to make the Minister, and thereby the public purse,
liable for the first defendant’s crimes and torts.
[54] We have already seen, in the historical portion of this judgment,
that the State involvement in the governance of national schools, for
historical reasons, is indirect not to say oblique and general rather than
particular. The role which the State might otherwise have occupied is, by
their own urgent desire, occupied by the churches and other voluntary
bodies, in this case the Catholic Church.
[55] For many years the common law world applied the test for vicarious liability taken from Salmond and Heuston on the Law of Torts (19th
ed., Sweet and Maxwell, 1987) at pp. 521 to 522. This was applied in the
Canadian case to be discussed below, Bazley v. Curry (1999) 174 D.L.R.
(4th) 45.
There, the rule is stated as follows at para. 6:“An employee’s wrongful conduct is said to fall within the course
and scope of his or her employment where it consists of either (1) acts
authorized by the employer or (2) unauthorized acts that are so connected with acts that the employer has authorized that they may rightly
be regarded as modes - although improper modes - of doing what has
been authorized: Canadian Pacific Railway Co. v. Lockhart [1942]
A.C. 591 at 599.”
[56] Thus, in Ireland, in Williams v. Morrissey (1903) 37 I.L.T.R. 65
the defendant was held liable when his employee, who was driving his (the
employer’s) cow threw a stone at the cow to divert the animal and hit the
plaintiff. The classic limitation on this form of liability was when the
employee went on what was somewhat quaintly described as “a frolic of
his own”, though the cases on this topic were far from consistent.
[56] It was, however, until recently almost universally considered that
an employer would not be liable for a forbidden act, and in particular one
amounting to a criminal offence. Thus, in the second, penultimate, edition
of McMahon and Binchy’s work on torts, it is said at p. 757:“Although there is some authority for saying that the master’s prohibition forbidding the servant from acting as he did does not automatically exonerate the master from liability, the majority of Irish
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cases where the master’s prohibition was a factor have resulted in the
court holding that the servant acted outside the scope of his authority.”
[58] Speaking generally on the topic of “conduct outside the scope of
employment”, the same authors say at p. 758:“If the servant acts outside the scope of his employment the master
will not be liable. Sometimes it is said that, provided the servant is doing the kind of thing he is employed to do, then the master remains
liable even if he does it improperly, but that the master is not liable if
the servant is doing something different in kind from that which he is
employed to do.”
[59] It is scarcely necessary to say that sexually abusing a pupil is
something quite different in kind from what a school teacher is employed
to do.
[60] On the same page the authors discussed the case of Lawlor v.
O’Connor (1929) 63 I.L.T.R. 103. There a driver assaulted a third party by
grabbing her and holding her on the running board of a moving truck, later
dropping her without stopping. The authors comment:“The bizarre facts in this case may not make it very useful as a
precedent, but it may indicate reluctance on the part of the Irish Courts
to saddle the master with liability where the servant commits an intentional tort (or a crime) against the person of the plaintiff” (emphasis
added).
[61] This proposition is aptly illustrated in a case cited by Fennelly J.
in the judgment he is about to deliver, Cheshire v. Bailey [1905] 1 K.B.
237. There a silversmith hired a coach and coachman from the defendants
in order to show his wares to customers around London. But the coachman
entered into a conspiracy with others to steal the silver. The Court of
Appeal dismissed the claim for damages against the defendant who
grounded himself on the obvious proposition that the coachman’s activities
had constituted a crime which is clearly outside the scope of his employment. The judgment said at p. 241:“It is a crime committed by a person who in committing it severed
his connection with his master, and became a stranger; and, as the circumstances under which it was committed are known, it raises no presumption of negligence in the defendant.”
[62] Nevertheless, there are common law cases, including a fairly recent Irish case, where an employer was held liable for the criminal act of
his employee. The first of these is another case discussed at length by
Fennelly J., Lloyd v. Grace, Smith and Co. [1912] 1 A.C. 716. There, a
solicitor’s conveyancing clerk induced a client, who was a widow, to
execute documents transferring title of two cottages to himself. He then
sold them for his own benefit. The employer took no benefit at all from the
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transaction. Nevertheless he was held liable for the dishonesty of his clerk
when the House of Lords held that the clerk had been acting in the course
of his employment. Lord Shaw said, at p. 740:“I look upon it as a familiar doctrine as well as a safe general rule,
and one making for security instead of uncertainty and insecurity in
mercantile dealings, that the loss occasioned by the fault of a third person in such circumstances ought to fall upon the one of the two parties
who clothed that third person as agent with the authority by which he
was enabled to commit the fraud.”
[63] An older English case was cited by Lord MacNaughten at p. 733,
the judgment of Willes J. in Barwick v. English Joint Stock Bank [1867]
L.R. 2 Exch. 259:“In all these cases it may be said, as it was said here, that the master had not authorised the act. It is true that he has not authorised the
particular act, but he has put the agent in his place to do that class of
acts and he must be answerable for the manner in which that agent has
conducted himself in doing the business which it was the act of his
master to place him in” (emphasis added).
[64] I think it is extremely important to understand the precise limitations of these decisions, and another to be discussed below. In Lloyd v.
Grace, Smith and Co. [1912] 1 A.C. 716 the master had put the clerk into a
position which enabled him, within the scope of his employment, to
present to clients documents for signature in relation to conveyancing
matters. This was “the authority by which he was enabled to commit the
fraud”.
[65] In Barwick v. English Joint Stock Bank [1867] L.R. 2 Exch. 259
the bank had been requested by a supplier of goods to one of its customers
to give a guarantee in relation to the customer’s liability. The supplier said
the defendant’s manager had said he would do this and would pay the
supplier when the customer was himself paid, via the bank. Notwithstanding this alleged assurance, however, when the customer’s money came into
the bank it was appropriated to liquidate a liability of the customer to the
bank. At the trial of the action by the supplier against the bank, the plaintiff
was non-suited. The issue before the Court of Exchequer Chamber was as
to whether or not there should be a new trial; it was held that there should.
The court expressly stated that it was not overruling the case of Udell v.
Atherton (1861) 30 L.J. Ex. 337, which was cited for the proposition “that
the principal is not answerable for the fraud of his agent”. More to the
point, in directing a retrial the court held that “it is true, he [the employer]
has not authorised the particular act, but he has put the agent in his place to
do that class of acts ...” (emphasis added).
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[66] There is simply no question of the State defendants or any of them
in the present case as having put the first defendant in his position as a
national school teacher to do the class of acts in respect of which this
action is brought. The State defendants did not in fact put him in that
position at all; the manager did. The English Joint Stock Bank appointed
the manager as its general agent to do business of a sort which included the
giving of guarantees, the negotiation of such guarantees with the parties
seeking them, and the promising of forbearance on behalf of the bank itself
on occasions when that was necessary to give effect to the guarantee.
Everything the manager did, on the plaintiff’s account, was within the
scope of this employment. Indeed, it is not obvious to me that this was a
case of fraud at all; certainly no fraud had been established at the time the
Court of Exchequer Chamber dealt with it.
[67] In the Irish case of Johnson & Johnson (Ire.) Ltd. v. C.P. Security
Ltd. [1985] I.R. 362 the defendant provided specialist property protection
services. A security officer employed by the defendant facilitated thefts
from the premises he was supposed to be guarding. This seems to me to be
a judgment which turns on its own facts. It is, clearly, heavily influenced
by the English decision of Morris v. C. W. Martin & Sons Ltd. [1966] 1
Q.B. 716. There a company which had accepted a fur stole for cleaning
was liable to the lady who owned the item when an employee stole the fur.
It is clear from the report that the defendant’s liability was thought by
Denning M.R. to arise from the act of bailment at p. 725:“If you go through the cases on this difficult subject, you will find
that, in the ultimate analysis, they depend on the nature of the duty
owed by the master towards the person whose goods have been lost or
damaged. If the master is under a duty to use due care to keep goods
safely and protect them from theft and depredation, he cannot get rid of
his responsibility by delegating his duty to another.”
[68] It seems to me that the Court of Appeal in the case just cited
found a non-delegable duty in the cleaner as bailee of the item stolen. It
appears to me that Egan J. found a similar duty in the circumstances of
Johnson & Johnson (Ir.) Ltd. v. C.P. Security Ltd. [1985] I.R. 362 arising
from the fact that the dishonest agent had been specifically employed to
guard the premises in question. He, too, seems to have regarded this duty
as having the same effect as an act of bailment, i.e., the creation of a nondelegable duty. The distinction between a non-delegable duty of an
employer and a vicarious liability of the employer for his employees is a
subtle one which has created much confusion in the cases and has led, as
we shall see below, to some savage English academic rebuking of the
House of Lords. But the distinction must be borne in mind in the present
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case because the plaintiff’s surviving claim is wholly based on vicarious
liability.
[69] In my view passages such as the following illustrate the true basis
of the decision in Morris v. C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716.
The first is that of Lord Denning, cited above.
[70] Diplock L.J. whose review of the preceding cases and whose departure from Cheshire v. Bailey [1905] 1 K.B. 237 was the most strongly
expressed, said at p. 737:“I base my decision in this case on the ground that the fur was stolen by the very servant whom the defendants as bailees for reward had
employed to take care of it and clean it.”
[71] Salmon L.J. actually adopted the words of Willes J. in Barwick v.
English Joint Stock Bank [1867] L.R. 2 Exch. 259 and said at p. 740 that
the defendants had “… put the agent in [its] place to do that class of acts …
and must be answerable for the manner in which the agent has conducted
himself in doing the business which it was the act of his master to put him
in”.
Salmon L.J. continued:“A bailee for reward is not answerable for a theft by any of his
servants but only for a theft by such of them as are deputed by him to
discharge some part of his duty of taking reasonable care.”
[72] It therefore appears to me that the act of bailment is not merely a
feature of Morris v. C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716 but was
the decisive feature in the decision of the Court of Appeal.
[73] Moreover, it appears to have been this aspect which influenced
Egan J. in the Irish case referred to, Johnson & Johnson (Ir.) Ltd. v. C.P.
Security Ltd. [1985] I.R. 362. There, the plaintiff had employed a security
company to guard his premises; instead one of the defendant’s security
staff had actually admitted a thief with a van and co-operated in the loading
of the plaintiff’s property into the van by thieves. Egan J. reviewed many
of the English cases cited above and quotes the passage from Lord
Denning, as cited above, including the reference to “a duty to use due care
to keep goods safely and protect them from theft and depredation”. Egan J.
continued, at p. 366:“Lord Denning, it will be seen, stated that some of the cases were
baffling and I would be cautious in committing myself to a completely
general proposition that a master would in every conceivable circumstance be held vicariously liable for the tort or criminal act of his servant committed in the course of his employment. I have no hesitation,
however, in accepting that the principle of vicarious liability must apply in the present case, where the employers were specifically engaged
to safeguard the plaintiff’s property”(emphasis added).
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[74] I am therefore of the view that the English cases cited, and the
Irish case which followed them, are narrower in their focus than might
appear at first glance. In particular, they appear to me to turn upon either
(a) the proposition that the employee was engaged to do the very class of
act which the tort or crime related as in the presentation of documents for
signature in the dishonest clerk’s case, or (b) a bailment or something
appearing to the judge to be analogous to bailment as in the Irish case.
[75] Accordingly it seems to me that the State defendants cannot be
liable for the first defendant’s tortious and criminal acts on the ordinary
and established principles of vicarious liability. The perpetrator was not the
Minister’s employee; the latter did not employ him or direct him. He was
employed by the patron and directed and controlled by the manager. The
latter, according to one of the expert witnesses at the trial “was the direct
governor of the school”. The Minister laid down rules for national schools
but they were general in nature and did not allow him to govern the
detailed activities of any individual teacher. He inspected the schools for
their academic performance, other than religious instruction, but it did not
go further than that. He was, to paraphrase the words of Kenny J., deprived
of the direct control of the schools, and of the enormous power which that
brings, because “there was interposed between the State and the child the
manager or the committee or board of management”. Equally, the Minister
did not appoint the manager or the teacher or directly supervise him. This,
indeed, was the essence of the “managerial system”. I cannot see, on the
evidence, that he had any scope whatever to make a personal judgment
about either of these two individuals. Moreover, it seems to have been
instinctively recognised by the parents who complained about the first
defendant that the person with direct authority to receive the complaint and
do something about it was the clerical and clerically appointed manager.
No complaint, on the evidence, was directed to the Minister or to any State
body. The matter was handled, so to speak, “in house” at the election of the
complainants. The end result of the process was a voluntary resignation
followed by the employment of the first defendant in another school in the
vicinity.
[76] All these factors tending to distance the Minister and the State
authorities from the management of the school and the control of the first
defendant are direct consequences of the long established system of
education, described above and mandated in the Constitution whereby the
Minister pays and, to a certain extent, regulates, but the schools and the
teachers are controlled by their clerical managers and patrons. It is not the
concern of the court either to endorse or to criticise that system but merely
to register its existence and the obvious fact that it deprives the Minister
and the State of direct control of schools, teachers, and pupils.
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[77] It must also be considered that there are limits in practice to what
an authority in the position of the Minister, or even a much more empowered authority, can do. A good example of this is given in Crowley v.
Ireland [1980] I.R. 102; the Minister was prepared to provide alternative
education for those children whose school was involved in an industrial
dispute but was stymied in doing so by the effective “blacking” of the
children by the teachers’ union, whom the Minister could not control. The
Minister lacked the legal authority to give a direction to the first defendant
as to his activities, about which in any event he had no knowledge; no one
told him.
[78] Equally, I could not hold, on established principles, that the act of
sexually abusing a pupil was within the scope of the first defendant’s
employment. It was the negation of what he was employed to do, an act of
gross and obvious criminality. At the time it was committed, in 1973, it
was an unusual act, little discussed, and certainly not regarded as an
ordinary foreseeable risk of attending at a school.
[79] I am fortified in these conclusions by the judgment of O’Higgins
J. in Delahunty v. South Eastern Health Board [2003] 4 I.R. 361. There,
the judge held that liability for sexual abuse perpetrated by a person
working in the school rested solely with the religious order which managed
the school. Speaking of the position of a nun called Sr. Joseph Conception,
the manager of St. Joseph’s Industrial School, the judge said at p. 388:“[I]t must be remembered that Sr. Joseph Conception was not appointed to the course by or on behalf of the third defendant [i.e., the
Minister] nor was she employed by the Department of Health or Education. It was not the function of the Department to manage the institution; that function was undertaken by Sr. Joseph Conception’s
religious order. In those circumstances the suggestion that the third
defendant should have insisted on Sr. Joseph Conception being qualified in management and/or childcare, and that he is to be faulted for
failing to ensure that Sr. Joseph Conception obtained the requisite
qualifications by invoking, or threatening to invoke, his statutory powers to decertify the school, is not realistic.”
[80] Very relevantly, O’Higgins J. also held at pp. 391 to 392:“The functions of the third defendant [i.e., the Minister] are not
management functions. The evidence was that the ownership and management of the school was in the hands of the religious order who ran
the institution. The fact that the institution was used by the State as a
means of fulfilling its constitutional obligations towards at least some
of the children in the school does not automatically make the institution an agent of the State, still less an agent of the third defendant.”
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[81] This judgment, delivered more than five years ago, might, one
would have thought, have directed the mind of the plaintiff towards the
need to implead those directly charged with the management and control of
the school.
[82] In Health Board v. B.C. [1994] E.L.R. 27 a female employee of
the Health Board had been sexually assaulted by two fellow workers. This
was claimed to amount to discrimination, contrary to s. 2 of the Employment Equality Act 1977, and the Labour Court made an award to her,
against the Health Board, in respect of it. The Board appealed to the High
Court and Costello J. set aside the award. In doing so he had this to say at
pp.10 to 11:“In the absence of express statutory provision the law in this country in relation to the liability of an employer for the tortious acts (including statutory torts) of his employee is perfectly clear - an employer
is vicariously liable where the act is committed by his employee within
the scope of his employment. But this is not the test which the Labour
Court applied in this case. Instead of considering whether in committing the assault on the claimant … the Board’s employees were acting
within the scope of their employment the Labour Court applied in effect the statutory test of vicarious liability contained in section 41 of
the British Sex Discrimination Act, 1975, to which I have referred earlier.
… What the Labour Court should have done was to consider
whether the employees were acting within the scope of their employment when they committed the violent sexual assault on the claimant
… This question admits of only one answer. An employer may, of
course, be vicariously liable when his employee is acting negligently,
or even criminally. It has not been shown either in the Equality Officer’s Report or in the Labour Court’s determination what was the nature of employment in which the claimant’s fellow workers were
engaged … But I cannot envisage any employment in which they were
engaged in respect of which a sexual assault could be regarded as so
connected with it as to amount to an act within its scope. The Board is
not therefore vicariously liable for what occurred.”
[83] On the basis of these cases, which specifically relate to alleged
sexual assaults, and on the basis, which I believe to be beyond argument,
that the Salmond test for vicarious liability is that which applies in Ireland,
and having regard to the very particular arrangements which exist here in
relation to the control and management of national schools and national
teachers, I have no doubt that the Minister and the other State defendants
are not liable to the plaintiff for the actionable wrongs committed against
her by the first defendant. I would therefore dismiss the appeal. But it is
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impossible to ignore the elaborate arguments addressed to the court to the
general effect that the law of Ireland in relation to vicarious liability ought
to be different and that it lies within the power of the courts to alter it as, it
will be seen, the courts of other common law jurisdictions have done.
Because of the importance of the matter, and in deference to the elaborate
arguments addressed to us, I proceed in the rest of this judgment to discuss
the possibility of a broader basis for vicarious liability. I am not impressed
with those arguments and, more fundamentally, I consider that if the law is
to be altered as suggested, that should properly be done by the legislature
and not by the courts.
[83] There is no doubt, however, that the organs of government of the
State; executive, parliamentary and judicial, will at no remote date be
confronted by these arguments again, possibly in very aggravated circumstances. It is therefore important that all who exercise any of the powers of
government of the State should consider and reflect upon what has been
urged.
A broader basis of liability
[85] In order to circumvent the very obvious difficulties created by the
state of the law as summarised above, the plaintiff here relies upon certain
Canadian authorities, which have been very influential in England and
elsewhere. They are said to support a broader formulation of the circumstances which may give rise to vicarious liability. These are not, of course,
said to be binding upon this court. Indeed, the plaintiff’s view is that “the
position in Ireland is unclear”. Certain other decisions from elsewhere in
the common law world, notably Australia, were also relied upon as well as
certain English authorities.
The classic position
[86] In Trotman v. North Yorkshire County Council [1999] L.G.R.
584, the Court of Appeal in England refused to find vicarious liability for
acts of sexual abuse committed by a school teacher. This was on the basis
of an application of the Salmond test quoted above. The teacher had
sexually assaulted a mentally handicapped student during a school field
trip. It was held that his actions were not an unauthorised mode of performing an authorised act but an independent act outside the scope his authority.
The court held at p. 591 that:“[I]n the field of serious sexual misconduct, I find it difficult to
visualise circumstances in which an act of the teacher can be an unau-
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thorised mode of carrying out an authorised act, although I would not
wish to close the door on the possibility.”
[87] It was also held that the sexual assault was “far removed from an
unauthorised mode of carrying out the teacher’s duties on behalf of his
employer”.
[88] This in my view is consistent with the established approach in
Ireland and with certain other authorities. It also accords with common
sense. However, the plaintiff places reliance on two Canadian cases Bazley
v. Curry (1999) 174 D.L.R. (4th) 45 and Jacobi v. Griffiths (1999) 174
D.L.R. (4th) 71.
The innovation
[88] In Bazley v. Curry (1999) 174 D.L.R. (4th) 45, the court held a
non-profit organisation which organised residential care facilities for
emotionally disturbed children liable for the act of an employee who
sexually abused the plaintiff. At the first instance, it was held that the abuse
was an improper mode of doing an authorised act and the childrens’
foundation, the defendant, was held to be liable. This decision was upheld
by the British Columbia Court of Appeal and by the Supreme Court of
Canada. McLachlin J., speaking for the Supreme Court, held that the
common thread in cases of this kind was that “the employer’s enterprise
had created the risk that produced the tortious act”. It will be recalled that
McMahon and Binchy spoke of “enterprise liability” in the passage, cited
above, where they discussed the “modern view”, as it seemed to them, of
vicarious liability. McLachlin J. somewhat added to the test by saying that
the plaintiff must show that the employer significantly increased the risk of
harm. She then proposed a further two stage test for determining whether
an act of an employee should be characterised as an independent act under
the Salmond test. Firstly, the court should examine whether precedent
covered the sort of facts displayed by an individual case. If there was no
clear precedent, favouring vicarious liability, the courts should determine
whether vicarious liability should be imposed in light of the broader policy
rationales (see para. 28 of the judgment). In Bazley v. Curry the court held
that there was no precedent mandating liability. However, the court upheld
the decisions in favour of the plaintiff, stating vicarious liability to be a
policy driven area of the law and identified the policy objectives as those of
(1) fair compensation, and (2) deterrence. The court went on to observe,
somewhat blandly, that a guilty employee might often be a man of straw
whereas his employer would often have deeper pockets. It must be
emphasised that the court held that the employer should not be held liable
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simply because he has the ability to pay, and went on to hold that “effective
compensation must also be fair, in the sense that it must seem just to place
liability for the wrong on the employer”.
[90] I have to say that, considered as a serious criterion of liability, the
last quoted phrase seems to me utterly lacking in rigour, and perhaps even
in meaning. It is utterly useless as a predictive tool. It seems to me a
modern version of the “Chancellor’s foot”, an old legal metaphor for an
uncontrolled, highly subjective discretion.
[91] The court went on to hold that, in order to further the objective of
deterring future harm, the law of vicarious liability may impose (strict)
liability on an employer in cases where the employer was not blameworthy, because policy considerations of compensation and deterrence may
justify the imposition of no fault liability. This is a perfect example of
Henchy J.’s concept of the redressing of one wrong by the creation of
another.
[92] Accordingly, the court found that the children’s foundation was
vicariously liable on the basis that it had created the risk of the abuse.
McLachlin J. held that “the opportunity for intimate private control and the
parental relationship and power required by the terms of employment
created the special environment that nurtured and brought to fruition
Curry’s [the perpetrator’s] sexual abuse”. The judge said the test for
vicarious liability for employee sexual abuse was “whether the employer’s
enterprise and empowerment of the employee materially increased the risk
of the sexual assault and hence the harm”. She apparently regarded this test
met if the employee and the child were put in intimate contact by the
former’s employment.
[93] The judgment in Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71
was delivered in the Supreme Court of Canada on the same day as Bazley
v. Curry (1999) 174 D.L.R. (4th) 45. There, however, a majority of the
Supreme Court of Canada declined to find the “Boys’ and Girls’ club”, a
non-profit organisation, vicariously liable for the abuse of a child by its
employee. The object of the club was to provide guidance to children and
promote their health, social, educational, vocational and character development. Here, the majority judgment was delivered by Binnie J. who
distinguished Bazley v. Curry which, as we have seen, proceeded on the
theory of “enterprise risk” as the rationale of vicarious liability. He held
that the activities of the Boys’ and Girls’ club were not of such a kind to
create a relationship of power and intimacy but merely provided the
offender with an opportunity to meet children. This was insufficient.
McLachlin J., who had delivered the judgment of the court in Bazley v.
Curry dissented in this case. She considered that the securing of a position
of trust in intimacy and power was within the objectives of the club and
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that the club therefore assumed responsibility, especially given that it was
dealing with disadvantaged children. The test, which was met in Bazley v.
Curry and not met in Jacobi v. Griffiths, is widely referred to as the “strong
connection test”.
[94] In Lister v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215
the House of Lords considered the same sort of issues. The facts of the case
will be referred to below. However, the plaintiff has emphasised in
particular a portion of the speech of Lord Millet at p. 244:“If the employer’s objectives cannot be achieved without a serious
risk of the employee committing the kind of wrong which he has in
fact committed, the employer ought to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is
not enough to make the employer liable. He is liable only if the risk is
one which experience shows is inherent in the nature of the business”
(emphasis added).
[95] In Lister v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215
the House of Lords appears to me to have adopted a “close connection”
test, clearly derived from the Canadian cases, as the criterion of vicarious
liability. Any decision of the House of Lords deserves and always receives
careful and respectful consideration in this court. Having tried to accord
this decision consideration of that sort, I have nonetheless concluded, with
a number of English academic authorities, that the judgment seems guided
by a perceived need to find for the plaintiffs rather than “any discernible
sense of direction”. Apart from the very marked degree of enthusiasm for
the Canadian cases, there is no development of a coherent legal principle
nor is there even a clear articulation, which is certainly a feature of the
Canadian cases, of what are said to be the “policy issues”. Indeed Lord
Clyde, at para. 35, seems to doubt that there is, or ever has been, any clear
logical or legal principle underlying vicarious liability, at p. 232:“I am not persuaded that there is any reason of principle or policy
which can be of substantial guidance in the resolution of the problem
of applying the rule in any particular case. Theory may well justify the
existence of the concept [of vicarious liability] but it is hard to find
guidance from any underlying principle which will weigh in the decision whether in a particular case a particular wrongful act by the employee should or should not be regarded as falling within the scope of
the employment.”
[96] This, indeed, is a depressing picture. If there is no coherent theory
of vicarious liability, there can be no principled development of the law on
that subject, no predictability and no means for a person, plaintiff or
defendant, to form a proper view of his rights or liabilities. This would be a
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sad condition for any legal system to find itself in, seeming to justify
Tennyson’s description of the English common law as:“… the lawless science of our law –
The codeless myriad of precedent,
The wilderness of single instances.”
[97] The “close connection” theory is most strongly articulated,
nevertheless, in the speech of Lord Steyn in which he says he has been
greatly assisted by “the luminous and illuminating judgments” of the
Canadian Supreme Court in Bazley v. Curry (1999) 174 D.L.R. (4th) 45
and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71. These are strong
adjectives indeed to apply to the latter case where the court divided four to
three on whether its own “close and direct connection” test had or had not
been met.
[98] Despite this marked attention to the Canadian jurisprudence, Lord
Steyn said that he reached his own decision “employing the traditional
methodology of English law” (at p. 230). A line or two later this methodology was said, without further citation of authority, to consist of an inquiry
as to whether the perpetrator’s “torts were so closely connected with his
employment that it would be fair and just to hold the employers vicariously
liable”. I simply cannot see that this arises either from the common law
position (strongly stated in Trotman v. North Yorkshire County Council
[1999] L.G.R. 584, which the House of Lords reversed in Lister v. Hesley
Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215) or from the methods
usually employed by the common law.
[99] Lister v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215
was an action by some men who as boys had been sent to Hesley Hall, a
school specialising in boys with emotional and behavioural difficulties,
when they were between twelve and fifteen years of age. They lived in a
place called Axeholme House, which was a boarding annex of the school
and was situated about two miles away. It was specifically intended to be a
home for the boys, and not an extension of the school. A man called Grain
was employed as the warden of this place and his wife as the housekeeper.
Grain’s duties were quite clearly more parental than school masterly. He
carefully groomed some of the children by various indulgences and
subsequently engaged in sexual conduct with them, in respect of which
they later sought compensation.
[100] The most rigorous of the speeches in the House of Lords seems
to me that of Lord Hobhouse of Woodborough at pp. 238 to 243. His
analysis, notably at pp. 238 and 239 rests squarely on the foundation of the
employers having a non-delegable duty to take all reasonable steps to
safeguard the plaintiffs and accordingly at p. 239:-
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“The employers are liable for the employee’s tortious act or
omission because it is to him that the employers have entrusted the
performance of their duty. The employers’ liability to the plaintiff is
also that of a tortfeasor.”
[101] A “tortfeasor” liability is plainly direct and personal, as opposed
to vicarious, in nature, but Lord Hobhouse clearly says that the employer is
being found vicariously liable.
[102] These and other difficulties with this case have led the authors of
the tort section of the [2001] All E.R. Rev., Mr. Mullis and Mr. Nolan, to
go so far as to say at paras. 29 to 30 on p. 426 that “their Lordships
appeared unclear as to the distinction between personal and vicarious
liability”. They also conclude that “for all its faults, it is submitted that the
Salmond test provided more guidance than the close connection test
adopted in Lister v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215
… the decision looks set to create yet more uncertainty in this troubled
corner of the law of tort”. I would hesitate to go so far as this, but I cannot
regard the case as helpful in the task presently before the court.
[103] The ratio decidendi of the House of Lords in Lister v. Hesley
Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215 did not appear to me to be
easily ascertainable from the report. Nevertheless, in so far as it can be
ascertained, it seemed to me to emerge from the speeches of Lord Clyde,
Lord Millet in the passage cited above and Lord Hobhouse of Woodborough. Apart from the extract from the speech of Lord Millet, this appeared
to coincide with the view of the English academic commentators cited
above. However, having had the advantage of reading in draft the judgment
of Fennelly J., I have become aware that an alternative ratio might be
regarded as emerging from the speech of Lord Steyn, apart from the brief
references quoted above.
[104] Lord Steyn first traced the history of the case, showing that it
stemmed from a finding of the trial court that although the employers could
not on the then existing law, be held vicariously liable for the torts of the
perpetrator, they were vicariously liable for the perpetrator’s failure to
report to his employer “his intentions (before the acts of sexual abuse) and
the harmful consequences to the children (after acts of abuse)” at p. 221.
[105] This point, a version of which at one stage featured in the present
case, was disposed of by the Court of Appeal in a single sentence of the
judgment of Waller L.J. with which I agree, in so far as it is relevant, at p.
222:“The simple point in this case is that if wrongful conduct is outside
the course of employment, a failure to prevent or report that wrong
conduct cannot be within the scope of employment so as to make the
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employer vicariously liable for that failure when the employer was not
vicariously liable for the wrongful conduct itself.”
[106] This seems to me not only correct, but self-evident. Lord Steyn,
at p. 222 of the report, says that since the decision of the Court of Appeal
the reports of “two landmark decisions in the Canadian Supreme Court”
had become available. These of course are Bazley v. Curry (1999) 174
D.L.R. (4th) 45 and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71. This led
Lord Steyn to adopt the “close connection” test and apparently to argue,
over the following pages, that it is to be found (embryonically at least) in
the Salmond test and in the English cases, most of which have been cited
above. Here too, with great respect, I cannot follow his approach.
[107] In relation to the first of these matters, Lord Steyn at p. 775
quotes the Salmond test, focusing, naturally on the second leg of it:“Is the act complained of a wrongful and unauthorised mode of
doing some act authorised by the master?”
[108] Lord Steyn then goes on to quote, from the first edition (1907) of
Salmond on Torts which says “a master … is liable even for acts which he
has not authorised, provided that they are so connected with acts which he
has authorised that they may rightly be regarded as modes – although
improper modes – of doing them” (emphasis in Lord Steyn’s speech).
[109] He goes on to say at p. 224 that Salmond’s explanation “is the
germ of the close connection test adumbrated by the Canadian Supreme
Court”.
I do not believe that the passage quoted above from the first edition of
Salmond is at all capable of being the “germ” of the close connection test.
It is true Salmond in his first edition referred to acts which the employer
had not authorised but which were “so connected with acts which he has
authorised…”. But the result of this close connection, in Professor Salmond’s exposition, is that the acts in question are so connected with acts
(a) which the employer has authorised, and (b) that they may rightly be
regarded as modes – although improper modes – of doing them.
Properly understood, there is no rational connection between this formulation and the Canadian one of “close connection”, or a ground of
vicarious liability, except that the word “connection” is used in both. But
Professor Salmond’s “explanation” as Lord Steyn regards it, requires that
the close connection be with acts which the employer has authorised and
be such that what is actually done can be regarded as a mode, though an
improper and unauthorised one, of doing what the employer has authorised. At the very least, the Canadian Supreme Court wholly dispensed with
the second part of this test, requiring that what was in fact done must be a
mode of doing what was authorised. The importance of the subject matter
compels me to repeat, at the risk of tedium, that I cannot see anywhere in
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Professor Salmond’s treatment of this subject the smallest “germ” of what
the Canadian Supreme Court did almost a century after Professor Salmond
had first propounded his test.
[110] Lord Steyn then goes on to consider cases such as Lloyd v.
Grace, Smith and Co. [1912] 1 A.C. 716 and Morris v. C. W. Martin &
Sons Ltd. [1966] 1 Q.B. 716. He interprets those cases, which have been
sufficiently discussed earlier in this judgment, as leading to the conclusion
at p. 226 that “[o]ur law no longer struggles with the concept of vicarious
liability for intentional wrongdoing” but turning to the authoritative
Salmond test and inquiring how vicarious liability for intentional wrongdoing fitted in with it, he conceded that “[t]he answer is that it does not cope
ideally with such cases”. He expands this as follows, at p. 226:“It must, however, be remembered that the great tort writer did not
attempt to enunciate precise propositions of law on vicarious liability.
At most he propounded a broad test which deems as within the course
of employment a wrongful and unauthorised mode of doing some act
authorised by the master.”
[111] Lord Steyn then emphasised the connection between the authorised acts and the improper modes of doing them and stated that “[I]n reality
it is simply a practical test serving as a dividing line between cases where it
is or is not just to impose vicarious liability”.
[112] I have to say that it is not entirely clear to me what these passages mean. But Lord Steyn himself gives an example of a case, Rose v.
Plenty [1976] 1 W.L.R. 141, which he considers illustrates them. This was
a case where a milk roundsman who drove a float was prohibited from
giving lifts to third parties and from employing children to help him with
his work. Ignoring this, he employed a thirteen year old boy to run in and
out of houses with milk bottles and drove him about so that he could do
this. The boy was injured in the course of this prohibited activity and his
action against the milkman succeeded but that against the employer was
dismissed. The Court of Appeal reversed this decision in a passage
summarised as follows at [1976] 1 All E.R. 97:“The employers’ instructions only affected the milkman’s mode of
conduct within the scope of his employment and did not limit or define
the scope of the employment. It followed that, although the milkman’s
acts of employing the plaintiff and carrying him on the float were prohibited, they had been performed by the milkman within the scope of
his employment having been performed for the purpose of the employer’s business. Accordingly the employers were vicariously liable
for the milkman’s negligence and the appeal would therefore be allowed.”
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[113] This says no more than that a prohibited act may be an unauthorised mode of doing the employer’s business. There is a powerful dissenting
judgment in the case by Lawton L.J. which suggests the contrary and
which commends itself to me as an exercise in logic. But even if the law is
as cited from the headnote, the case establishes only that a prohibited act
may nonetheless be within the scope a person’s employment, having been
performed for the purpose of the employer’s business. I cannot see any
logical way in which this feeds in to the decision in Lister v. Hesley Hall
Ltd. [2001] UKHL 22, [2002] 1 A.C. 215 since, as the Court of Appeal
held in that case, the abuse could not possibly be regarded as having been
performed for the purpose of the employer’s business. Indeed, the sexual
abuse, in the words of Chadwick L.J. in the Court of Appeal, “must be
regarded as an independent act of self-indulgence or self-gratification”.
But Lord Steyn links the facts of Lister v. Hesley Hall Ltd. [2001]
UKHL 22, [2002] 1 A.C. 215 to Rose v. Plenty [1976] 1 W.L.R. 141
discussed above, in a passage which I find extremely difficult to follow, at
p. 227. Having cited extensively from the report of Rose v. Plenty he says:“If this approach to the nature of employment is adopted, it is not
necessary to ask the simplistic question whether in the cases under
consideration the acts of sexual abuse were modes of doing authorised
acts. It becomes possible to consider the question of vicarious liability
on the basis that the employer undertook to care for the boys through
the services of the warden and that there is a very close connection
between the torts of the warden and his employment. After all, they
were committed in the time and on the premises of the employers
while the warden was also busy caring for the children.”
[114] The majority in Rose v. Plenty [1976] 1 W.L.R. 141 found as
they did on the basis that the acts were a mode of doing what the employee
was paid to do. No one could say that about what Grain did in the English
case and what the first defendant did here. In any event, the first defendant’s actions in this case were not done in the time of the Minister, or on
his premises or while the first defendant “was also busy caring for the
children”, whatever that may mean.
[115] As mentioned above, certain Australian authorities were also
cited on the hearing of this appeal. These show a considerably more
moderate view in general of the concept of vicarious liability, but do not
exhibit the unanimity that the members of the Canadian Supreme Court
found possible, at least briefly, to achieve.
[116] The High Court of Australia decided three cases on the 6th February, 2003: New South Wales v. Lepore [2003] HCA 4, (2003) 195 A.L.R.
412.
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[117] In these cases, the plaintiffs placed their primary reliance on a
concept of a non-delegable duty of care owed by an education authority. I
understood that, on the argument of this appeal, the plaintiff disclaimed
any such argument. The Australian plaintiffs also relied on vicarious
liability and references were made to the English and Canadian jurisprudence. It is not at all easy to find a consensus amongst the justices of the
High Court, but one easily identifies two opposing viewpoints. Callinan J.
espoused the view that because the commission of a criminal act by a
teacher would be so far removed from his duties as an employee, vicarious
liability cannot and should not be imposed on the employer. He said that
“nothing could be further from the due performance of a teacher’s duty
than for him to molest children in his care”. I believe this is the true
position at common law, and is true in fact.
[118] Kirby J., on the other hand, said that “in the face” of so many
decisions upholding vicarious liability in such circumstances, “a general
exemption from civil liability based on the deliberate or criminal character
of an employee’s conduct cannot stand as good law”. Gleeson C.J. leaned
in the same direction. The judgments of these two judges contain the
suggestion, reminiscent of the judgment of McLachlin J. in Bazley v. Curry
(1999) 174 D.L.R. (4th) 45, that given the significant new problem of
sexual abuse and the need to provide victims of sexual abuse in Australia
with compensation, it is important for Australian law to march in step with
the highest courts of England and Canada. All of these cases were
teacher/student assaults and Gleeson C.J. held that where the
teacher/student relationship is invested with a high degree of power and
intimacy, the use of that power and intimacy may provide “a sufficient
connection” between the sexual assault and the employment to permit
treating the abuse as occurring in the course of employment. This plainly
derives from the Canadian cases.
[119] In Lord Steyn’s speech in Lister v. Hesley Hall Ltd. [2001]
UKHL 22, [2002] 1 A.C. 215 he overrules the earlier case of Trotman v.
North Yorkshire County Council [1999] L.G.R. 584 and in the course of
doing so concedes at p. 223, that the case overruled was “a carefully
considered and reasoned decision”. “Nevertheless”, he says “our allegiance
must be to legal principle”. On the same basis, that of the need to adhere to
legal principle, I must conclude that the Canadian court and those who
followed its decision, were so greatly influenced by the felt need to find a
basis to pay compensation for sexual abuse that they departed from
anything resembling a coherent legal principle grounding vicarious
liability. Not only that, but those who followed it in other jurisdictions also
paid too much heed to the need to find a source of compensation even
without principle and too much heed to the need, as they perceived it, for
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the common law jurisdictions to march in step together. I would not at all
belittle the desirability of this last consideration and would freely acknowledge the inspiration often to be found in English and other United Kingdom, American, Canadian and New Zealand decisions. These recent
decisions have themselves overruled cases, like Trotman v. North Yorkshire County Council, firmly rooted in principle and in precedent. I would
have less anxiety in following or accepting guidance from the overruling
decisions if they substituted a similar coherent precedent or principle for
those jettisoned. It does not appear to me that the “close connection” test
can be regarded as a principled one and I think this is illustrated by the
conflicting results arising from its application in very similar circumstances
in Bazley v. Curry (1999) 174 D.L.R. (4th) 45 and Jacobi v. Griffiths
(1999) 174 D.L.R. (4th) 71.
[120] It appears to me, moreover, that there is a significant difference
of approach between Lord Steyn and the Canadian court. The latter, as
expounded earlier in this judgment, required that the court should examine
whether precedent covered the facts of an individual case. Only if there
was no clear precedent favouring vicarious liability should the courts have
recourse to the “broader policy considerations” which allowed vicarious
liability to be imposed in Bazley v. Curry (1999) 174 D.L.R. (4th) 45. In
other words, the Canadian court was unable to find a basis in precedent for
imposing vicarious liability in that case. But that is precisely what Lord
Steyn, as it appears to me, would claim to do: to find a basis in pre-existing
English cases and academic writings leading seamlessly to the finding of
liability in Lister v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215.
[121] I am not satisfied that it would be proper to ground vicarious
liability on any of the theories expounded in the Canadian cases. I do not
believe that the requirements of either fair compensation or deterrence
justify the novel imposition of strict liability on an innocent employer for
acts quite outside the well established Salmond test. It seems to me, as I
have already said in this judgment, lacking in fundamental justice to
impose a liability on a person simply because he is, or is thought to be, in a
position to pay compensation. Equally, and perhaps even more obviously,
it is wrong to impose the status of wrongdoer and the liability to pay
compensation without fault for acts outside the scope of employment on
the basis of pour encourager les autres. Further, I am not satisfied that the
fulfilment of the constitutional duty to make free primary education
available by (in this case) supporting and financially assisting private and
corporate endeavour is either an “enterprise” or a business (to use Lord
Millett’s word), carried on by the Minister. And I do not consider that it
has been shown in this case or elsewhere that the risk of sexual abuse is
one which experience shows is inherent in the nature of the “business” of
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providing for primary education. The fact that there have been notorious
cases of sexual abuse involving teachers does not demonstrate that things
have got to the stage at which such abuse is an inherent risk of schooling; if
it did, it would be a poor reflection indeed on the teaching profession.
[122] Nor do I consider that the test set out in Lister v. Hesley Hall Ltd.
[2001] UKHL 22, [2002] 1 A.C. 215 by Lord Millett has been met. There
is a total absence of evidence to suggest that the Minister’s duty of providing assistance to (in this case) private religious initiatives in the management of a national school “cannot be achieved without a serious risk of the
employee committing” sexual abuse. The plaintiff seems to consider that a
number of much publicised cases of sexual abuse by teachers proves that
this condition is met. On the contrary, such actions are, even today,
deviant, uncommon and attract the condemnation and disgust of the huge
majority of the members of the teaching profession, who would never
behave in this way. This is an important point, if the present case and
others like it are to be approached in anything resembling a realistic
fashion.
Role of the legislature
[123] I have to say that I find some of the formulations, in the Canadian cases in particular, vague in the extreme and quite unhelpful. Asking
“whether it is just” to impose no fault liability is not a constructive or a
thought out approach, nor one likely to assist the discussion. It begs a huge
number of questions. Imposing liability on an individual or entity on the
basis of “broader policy rationales” smacks, with great respect, of political
or social engineering rather than the administration of commutative justice.
And if the law is to change towards the notably vague Canadian formulation, that is so great a change from our present concepts of justice in this
area that, in my view, it should be changed by legislation. I say this on the
basis of the general separation of powers principles as outlined in my
judgments in Sinnott v. Minister for Education [2001] 2 I.R. 545 and T.D.
v. Minister for Education [2001] 4 I.R. 259, and out of respect for the
legislature’s exclusive power to make laws as expressed in Article 15.2 of
the Constitution. This approach would also have the separate advantage of
committing law reform in this area into the hands of those who will have to
provide the wherewithal to fund the exceptionally generous regime of
recovery which would be involved in following the Canadian model.
[124] Apart from these general considerations I believe that the question of whether enterprise liability or some form of strict liability, however
denominated, should be introduced into the law of tort is an appropriate
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matter for legislative rather than judicial determination for the following
reasons:(1) it is, in my view, entirely inconsistent with the established
common law basis of liability. If this is to be changed, it is best
changed by legislation; see, for example, the comments of Walsh
J. in his Foreword to the first edition of McMahon and Binchy,
Law of Torts, on the role of fault in tort;
(2) it would immediately raise the fundamental social or political
question of what constitutes an “enterprise” or an act of “risk
creation”. Does this extend to public entities, to voluntary
associations or to individuals involved in charitable or gratuitous
services to relatives or neighbours? It must be understood that this
has the potential to extend enormously the scope of liability
especially if what Henchy J. calls “gratuitous obligers” are
included;
(3) depending on the answer to the foregoing question, the change
may represent an enormous burden to enterprises, charities and
individuals;
(4) it may also represent an enormous, and perhaps terminal, blow to
voluntary charitable associations;
(5) the system of enterprise liability tends towards universal insurance,
whose merits or demerits are fundamentally a political question. In
a survey of the development of enterprise liability by Gregory
Keating, Professor of Law at the University of Southern California
Law School (2001) 54.3 Vand. L. Rev. 1285, the author points out
that the workman’s compensation system was the first result of the
rise of enterprise liability theory in the early part of the 20th
century. He also observes that the workman’s compensation
system was “founded largely upon a theory inconsistent with the
common law of torts”. Apart from the intrinsic or political merits
or demerits of this system, it has to be recognised that it would
require to be supported by a system of insurance administered or
funded (especially in the event of default) by the State and is
therefore entirely apt for legislative initiative since legislation will
certainly be required for the necessary, and necessarily
compulsory, premiums required.
Control
[125] But, in the end, my views on the Canadian and antipodean
decisions are not central since I consider that even if they were to be
followed here, except perhaps in their most extreme form, the Minister’s
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absence of direct control over the first defendant (because such control had
long since been ceded to the manager and the patron) prevents a finding
against him. The first defendant was not an employee of the Minister and
neither was he in any form of relationship with him which corresponds to
any of the ordinary legal triggers for vicarious liability. Their relationship a triangular one with the Church - is entirely sui generis, a product of
Ireland’s unique historical experience.
[126] In my view, both justice and the basic requirements of an ordered society require that the imposition of strict liability on a no fault
basis be done (if at all) only on the clearest and most readily understandable basis. I do not regard the Canadian cases cited as providing such a
basis; quite the opposite, as the two conflicting decisions cited demonstrate, in my view. I do not believe that the expanded basis of vicarious
liability represents the law in this jurisdiction, or can be made to do so
except by legislation. The consequences of doing this, social as well
economic, would be immense; it is well to consider what was said in the
Supreme Court of Canada about the potential for “chilling effect” of such a
move, per Binnie J. in Jacobi v. Griffiths (1999) 174 D.L.R. 4th at p. 105:“As to the nature of the enterprise sought to be held liable, the
imposition of no fault liability in this case would tell non-profit
recreational organisations dealing with children that even if they take
all of the precautions that could reasonably be expected of them, and
despite the lack of any other direct fault for the tort that occurs, they
will still be held financially responsible for what, in the negligent sense
of foreseeability, are unforeseen and unforeseeable criminal assaults by
their employees. It has to be recognised that the rational response of
such organisations may be to exit the children’s recreational field
altogether. This is particularly the case with unincorporated groups,
whose key members may find themselves personally responsible as the
‘employer’ for the unforeseen criminal act of a deviant employee. [The
judge referred to authorities and continued]. Children’s recreation is
not a field that offers monetary profits as an incentive to volunteers to
soldier on despite the risk of personal financial liability.”
[127] In Ireland, as in other countries, the decline in recent decades of
the number of people performing voluntary activities on a local community
basis has been much noted and deplored (see, in particular, Robert Puttman’s Bowling Alone). The court’s decisions on issues such as the present
are not without relevance to these issues.
[128] It follows from the foregoing that I would not find the Minister
or other State defendants vicariously liable in respect either of the first
defendant or of Fr. Ó Ceallaigh. In relation to the latter it is worth pointing
out that he was the nominee of the patron, that is of a power other than the
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Minister and he did not inform the Minister of any difficulties with, or
complaints about, the first defendant or of his resignation and appointment
to teach elsewhere until they were faits accomplis. He was the agent not of
the Minister, but of the Catholic Church, the power in whose interest the
Minister was displaced from the management of the school.
[129] I would comment as follows on the other two headings under
which the plaintiff’s claim was put, though neither was proceeded with.
The first was negligence in failing to put in place appropriate measures and
procedures “to protect and cease [sic] the systematic abuse which the first
defendant on the evidence embarked upon …”. In my view this is a claim
which could more appropriately be made against the manager. It was he
who had the power to put in place appropriate measures and procedures
governing the running of the school. The Minister can hardly be responsible for a failure to “cease” a course of action of whose existence he was
quite unaware.
[130] It is also claimed that by reason of the constitutional provisions
of Article 42, cited above, he had a responsibility, presumably, to put
measures described in the first paragraph in place.
[131] I have already analysed the terms of Article 42 from which it
will be seen that the Minister, in the case of this national school, was
simply providing assistance and subvention to private and corporate (i.e.,
Roman Catholic) endeavour, leaving the running of the school to the
private or corporate entities. The Minister is thereby, as Kenny J. pointed
out in Crowley v. Ireland [1980] I.R. 102, deprived of the control of
education by the interposing of the patron and the manager between him
and the children. These persons, and particularly the latter, are in much
closer and more frequent contact with the school than the Minister or the
department.
[132] I do not read the provisions of Article 42.4 as requiring more
than that the Minister shall “endeavour to supplement and give reasonable
aid to private and corporate educational initiative”, to “provide for free
primary education”. In the Canadian case of Blackwater v. Plint [2005] 3
S.C.C. 58, the much stronger statutory terms of a statute authorising the
Minister “to establish, operate and maintain schools for Indian children”
was found not to support “the inference of a mandatory non-delegable
duty”. In my view the Constitution specifically envisages, not indeed a
delegation but a ceding of the actual running of schools to the interests
represented by the patron and the manager.
[133] I wish to stress that nothing in this judgment should be interpreted as finding or suggesting that the Church authorities in fact bear a
liability for what happened to the plaintiff. It would be quite impossible to
do this, in any event, because the court has not heard those authorities,
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Hardiman J. Geoghegan J.
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because the plaintiff has not sued them. They might, for example be in a
position to lead evidence which would put an entirely different complexion
on the facts to that urged upon us. We simply do not know.
[134] I would dismiss the appeal.
Geoghegan J.
[135] This appeal is brought in an action for damages for personal injuries arising from a series of sexual assaults committed by the first
defendant in the course of giving some out-of-hours lessons in a musical
instrument to the plaintiff in the year 1973 in the national school then being
attended by the plaintiff and of which the first defendant was the principal.
The plaintiff was born on the 20th November, 1964. The school was
Dunderrow national school, Kinsale, County Cork and within the diocese
of Cork and Ross. Although the first defendant has been named on the
notice of appeal as a defendant, he is not in reality a defendant to this
appeal in that a judgment in default of appearance was obtained against
him and the damages have been assessed as against him by the High Court.
[136] For convenience, I will henceforth refer to the second, third and
fourth defendants as simply “the State”. The appeal is, essentially, against
the finding by the High Court (de Valera J.) that the State was not vicariously liable for the above mentioned acts of sexual abuse.
[137] The school in question was an ordinary national school. I have
deliberately included the adjective “ordinary” so as so make clear that any
views which I will be expressing on the relevant law are intended to apply
only to schools which are subject to the patronage of the local Catholic
bishop and of which he, or more usually the local parish priest, is manager.
I suspect that the legal position would be exactly similar in relation to say
the Church of Ireland national schools but because there is no information
before the court relating to their exact status, I would prefer to confine my
views to Catholic national schools of the kind I describe. I am, therefore,
excluding from the ambit of this judgment national schools which are
owned by religious orders such as, for instance, the Christian brothers.
Different principles may or may not apply to them. Needless to say, no
view which I will be expressing should be taken as applying to secondary
schools funded by the State.
[138] In considering the issue of vicarious liability (if any) on the part
of the State, it is not in dispute that a teacher in an ordinary national school
of the kind that I have described, including the principal of that school, is in
a contractual relationship with the manager of the school. In other words,
the manager is the employer. Under the law of contract, it is, of course,
conceptually possible in some instances for a party who enters into a
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contract as an agent (whether disclosed or undisclosed) to become personally liable on the contract in addition to his principal. It may not be beyond
argument therefore, that the manager of an ordinary national school is
contracting as agent for the patron, i.e., the bishop and that the bishop
could himself be liable. What is certainly beyond argument is that the State
is not in a contractual relationship of any kind with the teacher including
the principal.
[139] It seems clear, however, on the authorities that vicarious liability
is not necessarily confined to the tortfeasor’s employer in the contractual
sense. But even in the case of an employer, an employer will not be liable
for acts done wholly outside the scope of authority. However, as MacMahon and Binchy point out in Law of Torts (3rd ed., Sweet and Maxwell,
2000) at p. 1102 there is good authority for saying that “within the scope of
authority” is a phrase which must be interpreted liberally in favour of the
injured plaintiff. The authors cite in particular in support of this proposition
Doyle v. Fleming’s Coal Mines (Unreported, Supreme Court, 29th July,
1955). In the context of sexual assault, a useful discussion of the “scope of
employment” issue is contained in the judgment of Gleeson C.J. in an
appeal to the High Court of Australia in New South Wales v. Lepore [2003]
HCA 4, (2003) 195 A.L.R. 412 and which is, I think, the leading case on
this subject in Australia. Gleeson C.J. commences his judgment as follows:“If a teacher employed by a school authority sexually abuses a
pupil, is the school authority liable in damages to the pupil? No one
suggests that the answer is ‘no, never’. In Australia, at least until
recently, an answer ‘yes, always’ would also have been surprising.
More information would have been required.”
[140] What seems clear from that case and from others is that common
law jurisdictions such as Australia, Canada and England have long
abandoned the principle (if it ever existed) that there cannot be vicarious
liability for deliberate unauthorised acts. Indeed in this particular appeal, as
I understand it, the issue of scope does not really arise. The issue is
whether under the national school arrangements, the State is so
disconnected from the individual teacher, including a principal, that it
cannot in any circumstances be vicariously liable for torts committed by
those teachers.
[141] My reason, however, for diverting into the issue of scope is to
make it clear, as I will be doing later, that there can be no circumstances
whatsoever in which the State would be vicariously liable for a teacher’s
tort where the manager and/or patron were not.
[142] Regrettably, this court has become aware through the numerous
judicial review cases seeking to stop criminal trials that in many instances
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Geoghegan J.
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there have been alleged sexual assaults by teachers in a semi-concealed
fashion in the actual classroom while teaching. That is an extreme case and
is surely one in which under the modern jurisprudence, the manager and/or
patron would be vicariously liable. At the other end of the spectrum,
however, there may be cases where a teacher, say, arranges to meet with a
pupil during holidays, takes that pupil to bed with him and sexually
assaults the pupil. That may arguably be so outside the scope of the
employment that there would be no vicarious liability on the part of the
church authorities and, of course, ipso facto none on the part of the State.
Obviously, there can be grey areas in between. But in my view, this case
would not be one of them. I do not think it is or could be seriously contested that music lessons given on a voluntary basis out of hours in the
school premises by no less a person than the principal could be regarded as
outside the scope of employment for the purposes of vicarious liability.
[143] In both sets of written submissions on this appeal, Fox v. Higgins
(1912) 46 I.L.T.R. 222 has been referred to. Gibson J., sitting at nisi prius
in the then High Court had to grapple (which he did with great difficulty)
with the interaction of the relationship between teacher and manager on the
one hand and the relationship between the then National Board of Education (now the Minister for Education and Children) on the other hand. At
the end of his judgment, he observed as follows at p. 224:“On this somewhat confused legislation the fair inference is that
the National Board, the Manager and the teacher are put together in a
kind of triangular pact, and if the Manager accepts the terms of the
National Board for the School, and undertakes for the teacher that he
shall have the benefit of the National Board rules, and if the teacher is
assigned a contract which would bind him, then the Manager is bound,
in my opinion in the same way and to the same extent as if he had
signed the contract.”
[144] That last part of the quotation refers to the quite different context
in which Gibson J. had to consider the relationship. But his reference to a
“triangular pact” is useful and, in my opinion, relevant to this case, for
reasons on which I will elaborate later. I am in broad agreement with para.
7.8.4. of the plaintiff’s submissions to this court which reads as follows:“The employment context of a national school teacher cannot be
fully explained by reference to a simple contractual relationship between the national school teacher and a manager or, more recently, a
board of management. The true relationship has been described as a
complex tripartite legal relationship – or, by Gibson J. in Fox v. Higgins (1912) 46 I.L.T.R. 222 as ‘a kind of triangular pact’. Ultimately,
when one applies the legal test set out above (for ascertaining whether
or not there exists a relationship of vicarious liability) to this triangular
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pact it appears that vicarious liability should be imposed on the respondents for the acts of the first defendant.”
[145] I would accept that even if the State can be vicariously liable in
some circumstances for the torts of a teacher or especially a principal of a
national school, the manager and possibly the patron would also be
vicariously liable. The converse however would not be true. I would not
contend that the State could be liable for ordinary negligent accidents that
may occur in the day to day running of a school such as, for instance, the
neglect by a teacher properly to supervise a recreation. Unless there was
some kind of consistent pattern of such accidents, events of that kind
would be wholly outside the ambit of the State’s role in primary education.
Whilst therefore in such a situation there would be vicarious liability on the
part of the manager there would be no such liability on the part of the State.
In my view, the correct principle to apply is that the State (as distinct from
the church authorities) should be vicariously liable only for wrongs which
if discovered would have inherently rendered the relevant principal or
teacher whose application has been sanctioned by the Minister, unsuitable
to be retained.
[146] It is important now to examine in some depth both the factual
position as to the relationship between the State and the school on the one
hand and the factual context in which the sexual assaults occurred.
[147] The State has an obligation to provide for free primary education
under Article 42.4 of the Constitution which provides as follows:“The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate
educational initiative, and, when the public good requires it, provide
other educational facilities or institutions with due regard, however, for
the rights of parents, especially in the matter of religious and moral
formation.”
[148] Under the terms of para. 3, the State must not oblige parents in
violation of their conscience and lawful preference to send their children to
schools established by the State or to any particular type of school designated by the State. But the paragraph goes on to provide:“The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain
minimum education, moral, intellectual and social.”
[149] The School Attendance Acts form part of the compliance by the
State with that last mentioned obligation. For all practical purposes, most
of the primary education in this country has taken the form of a joint
enterprise of church and State. By “joint” I do not mean that each has the
same function but rather that a school system resulted from complementary
functions carried out together by the church and State. As was made clear
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in the evidence in the High Court the primary system of education in
Ireland has its origins in the early part of the 19th century and it also has its
roots in the concerns of the different churches that their particular ethos
would be reflected in schools of that ethos. I have already postulated at
least the possibility of a relevant difference between primary schools
owned by the bishop on the one hand and primary schools owned by a
religious order running a school on the other. I think it would be fair to say
that the bishops’ concerns have been essentially directed towards the
religious aspect and their desire to control education is incidental to that
end. On the other hand, an order like the Christian brothers are professional
educators as well as religious evangelists. If there were no constitutional
difficulties about the State entirely withdrawing its role in relation to
traditional national schools and if it did so, I would rather doubt that a
bishop, to say nothing of an ordinary parish priest, could cope with the
running of schools on their own. In my view, the State plays a crucial role
and this is reflected by the expert evidence given in the High Court. I will,
in due course, return to the question of whether in these circumstances
there should be vicarious liability on the part of the State for the acts
complained of in this case. For the present, I will continue with the facts.
[150] In the High Court there were two key witnesses in relation to
State involvement called by the State. One was Professor Coolahan,
professor of education at N.U.I. Maynooth and the other was Mr.
McGleannain, a retired school inspector who in fact had ended his period
in the department as chief inspector. Professor Coolahan not only gave
fascinating evidence as to the history of the national school system but
gave it with quite outstanding clarity. He explained that at the beginning of
the 19th century there were various types of schools. In particular there
were the so called “hedge schools”. From time to time there was agitation
in the United Kingdom parliament that the State should give support to
educational endeavours in Ireland particularly for Catholics who were the
poorest of the population. In October, 1831 the Chief Secretary for Ireland,
Lord Stanley took action. A famous letter issued at that time formed almost
the only legal basis (apart from the Constitution itself) for the primary
education system for over 150 years. However, the churches expressed
concern about the undenominational nature of the intended education. The
Commissioners of National Education, the predecessors of the Minister for
Education were established and they made it clear that they were not
running a State system of schooling but a State support system, though
they did establish a few schools of their own. However, the State support
schooling was not simply confined to funding but was conditional on the
compliance with circulated rules and regulations. Professor Coolahan,
however, made it clear that the school manager appointed the teachers
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more or less in whatever manner he thought fit but when asked in direct
examination did the hierarchy ever acknowledge that the Minister had a
role in choosing a school manager or school principals or school teachers,
the professor replied as follows:“Not in the choosing, but, yes, in the question of credentials and
teaching qualifications. The rules and regulations set down by the State
would have set down that you could not be appointed a principal
unless you were a qualified teacher, so much experience, and things
like that. These would be laid out and it would be expected that the
manager would have to comply with this, and also inform the department of the situation.”
[151] I will return later to the question of what might be regarded as
“credentials and teaching qualifications”. At this stage the crossexamination of Professor Coolahan becomes important. Having given
interesting but not particularly relevant evidence relating to the teaching of
religion in the schools and the original difference of opinion between the
bishops and, say, the Christian brothers as to the rigid division between
secular and religious teaching, Professor Coolahan was then asked about
secular inspection. He had already given evidence about diocesan inspectors in relation to religious teaching. When asked were there inspectors “in
other areas” his answer was:“Oh, yes. The inspectors, right from the beginning in 1833, you
got an inspection system established as soon as the national system
was established, really, and by the 1850s you got a very elaborate
structure of inspection established for primary schools, which tended
to be very interventionist. Each inspector had so many schools allocated to him or her and then there were district and head inspectors
established to oversee the routine inspection. The inspector would visit
the school on a fairly regular basis and sometimes carry out more extended examinations than other times, but the inspector also, be it he or
she, mainly he in the early years, would carry out probation of the
teachers newly appointed and so on.”
[152] In passing, I would make the comment at this stage that it must
have been always inconceivable that an inspector, who learned about
inappropriate assaults whether sexual or otherwise on pupils, would not
have taken up the matter with the powers that be and I doubt very much
that it would have stopped with the manager. Essentially, the inspector was
there to report back to the department in the new State or the board in the
old State. Later on in his evidence under cross-examination, Professor
Coolahan, referring to these inspections made the following interesting
comment:-
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“Reportage was a remarkable feature of, I suppose, the whole Victorian tradition. Reportage of the inspectors on their school visitations
was very extensive all through the years and it has continued. The primary school inspectors – well, now it is primary and secondary, it is
one inspectorate, but up until fairly recent times the primary school
inspectorate was a distinct cadre of inspection which was much more
closely linked to the schools and had much more authority in the
schools than would have been the case, say, in the secondary school
inspectorate.”
[153] Professor Coolahan was then asked to expand on the distinction
between the primary and secondary inspectorates before the merger. He
said he could explain it and he went on to observe as follows:“It lies in this context, that the rules and regulations for national
schools were established very early on and the inspector was appointed
as the key agent to ensure, from the point of view of the commissioners at first and later the department, that rules and regulations were
fulfilled and that teachers were efficient in the carrying out of their
professional duties. That got readily established and was accepted by
all concerned, right through the 19th century, so a tremendous tradition
was built up in the Irish national school inspectorate. In international
terms, it is remarkably interesting. But anyway the situation in postprimary inspectorate for secondary schools was very, very different.
The secondary schools were purely private institutions, denominational, as well and when the inspectorate was appointed, it began in
1908/09, the secondary school inspectorate really became established –
they were not always, shall we say, treated with open arms by some of
the school authorities, because particularly some of the church still felt
this was an intrusion by the State on their patch, if you like. Some inspectors have on record, even in the 1920s, secondary school inspectors visiting secondary schools and being tolerated rather than, shall we
say, warmly welcomed. There was always a different tradition and
very much tentative at secondary level. The primary inspectorate had a
much more engaged role and responsibility and was much more
widely accepted. Of course it has changed now more or less at all levels.”
[154] I make no apologies for continuing with Professor Coolahan’s
evidence at this point because I think it is highly relevant to the issues on
this appeal. The questioning and answers continued as follows:“Q. How do you mean ‘changed now’?
A. The inspectorate has been restructured now and they are much
more accepted at post-primary schools, as well.
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Q. How important is the inspectorate or was the inspectorate until – I
suppose things changed a bit with the introduction of the boards of
management?
A. Yes.
Q. Up to the mid-1970s, how important was the inspectorate?
A. Indeed, right up until now, it is still very important. Inspectors are
a key agency by which the Minister satisfies him or herself about
the quality of the system. Indeed, a national education convention
that I was involved in, in 1993/94 – I suppose it was the biggest,
shall we say, consultative discussion on Irish education in a structured format. One of the striking things that emerged - a thing that
stays in my mind - was the regard and concern for the inspectorate
by all parties. It was quite a striking feature, how much teachers,
managers and parents and so on wanted the inspectorate to stay as
a key agency within the Irish school system. The Irish inspectorate, particularly at the primary level, coming back to your question, was a very vibrant and active agency within the system and
the commissioners and Ministers relied a lot on the inspectorate to
keep it informed of the progress of the system in regard to secular
instructions.”
[155] The Professor went on to state that they never interfered with
religious instruction. But when it was put to him that it would be fair to say
that in relation to education outside religious instruction, the role of the
inspector would be fairly wide ranging, he agreed. Later again in his
evidence, the professor agreed with counsel for the plaintiff in crossexamination that the inspector’s remit “would not be a narrow one, simply
to ensure say that the curriculum was being taught, it would not be formalistic, it would be an assessment of the overall effectiveness of a teacher and
the suitability of a teacher”. Professor Coolahan broadly agreeing with that
proposition went on to explain that the inspectors would also inquire about
issues that might occur locally in relation to schools such as sites of
schools, the efficiency of the school, the tone of the school, the efficiency
of the teaching, whether there were good relationships, etc., but also
whether there were poor conditions. It would not just be a question
however of an inspector writing these matters down and reporting to his
department, he would take these matters up directly with the manager.
Counsel for the plaintiff put to the professor a particular extract from a
particular inspector’s report translated from the Irish reading: “The teacher
has a good personality …”. It then emerged that this was a reference to the
first defendant in this case. The next extract is significant:- “the teacher has
a good personality but does not sufficiently try to encourage the pupils to
participate in the learning. It appears that he should be able to do that.”
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Counsel for the plaintiff suggested that a kind of assessment of personality
and the suitability of the teacher were relevant to an inspector’s report. The
actual answer of Professor Coolahan to that suggestion is of some significance:“Certainly, yes, and mode of relating with pupils and engaging
with them. I think that it would be quite usual to get comments like
that.”
[156] The dialogue between counsel for the plaintiff and Professor
Coolahan then continued as follows:“Q. If a serious issue arose in relation to a teacher, that is something
that would go to the inspector?
A. I think if a serious issue arose about a teacher … now whether it
would automatically go to him is another matter, but certainly if it
was drawn to his attention he would take an interest in that and
explore that issue.”
[157] Essentially, the professor agreed with the questions being put to
him and the effect of his answers was that the inspector would become
involved in these issues both with the manager and the department. The
professor explained that undoubtedly the inspector was a major conduit
between the department and the local school and that from a practical point
of view this precluded parents from writing to the Minister “which happens
a lot”.
[158] I would merely comment at this stage that it would beggar belief
that if parents were aware of any kind of systematic sexual assaults by a
principal in a school which was not being attended to by the manager, the
matter would not be taken up with the department. Of course, the department could reply “we have no role”. But I do not think that is the thrust of
the evidence of Professor Coolahan.
[159] One of the extraordinary features of this case is that the charges
to which the first defendant pleaded guilty on the criminal side in relation
to this plaintiff were sample charges. The plaintiff was only one of a
number of children at the time who were allegedly sexually assaulted by
the first defendant. Nevertheless, it is accepted that no fault whatsoever
attaches to the department in the sense that the department had no knowledge of any such assaults and that includes the inspector. There is, therefore, no question of any vicarious liability on the part of the State for some
negligence on the part of the inspector. In the High Court, there was a
suggestion that the curate in the parish who was, for all practical purposes,
the acting manager (the parish priest, Archdeacon Stritch being indisposed)
did receive some form of complaint and that depending on whether that
complaint was reported on to the department or not, the department was
either directly or vicariously liable. That suggestion is now abandoned.
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[160] Professor Coolahan went on further to agree that it would be his
surmise at least that if an inspector in the course of his duties in a school
discovered there was a serious issue of misconduct operating there, that
would be an issue he would report back to the department as well as to the
manager. When asked whether, for example, if a parent had complained
about a teacher that would be something that might be raised with the
inspector or indeed for the school manager to raise with the inspector,
Professor Coolahan agreed that that would be true and went on to make the
following interesting comment:“What would be more likely to happen, however, in the tradition
was that the parent to a good extent was external of the system up until
recent times and he or she would have no awareness of inspectors’
time or duties or calling in any way. What would happen more often
would be that the parent would send a complaint to the Minister …
that used to be a strong tradition, actually, probably much more so in
the older days than today and then it would be likely drawn to the attention of the inspector to investigate it.”
[161] Counsel for the plaintiff then went on to suggest that the school
manager would not have a particular qualification in relation to education
or teaching or indeed the management of schools. The professor, however,
explained that this was largely chance. Some would have a huge interest
and some would not.
[162] The evidence of Professor Coolahan then went on to establish
that under the Department of Education rules, where the Minister was
satisfied that a teacher had conducted himself improperly or had failed to
comply with the rules, penal action including prosecution, withdrawal of
recognition and reduction of salary might be taken when in the opinion of
the Minister such action was warranted. Indeed the evidence established
that the State does have the right to impose very significant sanctions
including withdrawal of recognition which could affect employment in
other schools. Furthermore, although the manager appoints a teacher
including a principal, that appointment is subject to the approval or the
sanction of the Minister or the Department. Counsel for the plaintiff then
put to Professor Coolahan rule 121 of the Rules of 1965 sub-rule (2) which
provided as follows:“Teachers should pay the strictest attention to the morals and general conduct of their pupils.”
[163] The professor went on to explain that in early days the teachers
were very much seen as role models and as he put it “they were not to be
questioned, people of Christian sentiment, quiet disposition, obedient to
authority and so on and so forth”. Counsel pointed to rule 68 which
required that the teacher should constantly “inculcate moral virtues,
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including purity”. The professor agreed. He was then asked a significant
question:“Q. To what extent do you consider that the fact the national school
system is backed by the State and the inspectorate is important to
the public confidence, the confidence of parents in particular, in
the national school system in Ireland.”
[164] Professor Coolahan said he thought it was very important, in
particular he considered that a striking feature of the system was the
confidence the public had in the system at different levels. He thought that
at primary level there was a confidence “that the department knows what it
is about, in that it has a tradition established to its inspectors and its policy
makers and so on and so forth of being a caring department and a progressive department”.
[165] After Professor Coolahan had ended his evidence, the trial judge
asked a number of questions. In particular he asked whether there was any
structure or machinery whereby parents could contact the inspector. The
witness did not think there were but possibly a special appointment could
be made. In relation to what the judge called “the 1970 to 1974 period” the
professor made the following observation:“I think what was happening there was that parents themselves, at
least middle class parents, anyway, were getting much more articulate
about their roles and rights and much more exercised about this. There
were parent movements and their pressure for parent involvement in
management boards was coming to the fore. In the Irish tradition, my
honest view is that parents had a tradition of contacting the department
about any grievances they had or problems, and that could include
teachers or inspectors. As a matter of fact, I think there is a great
amount of documentation in the department about that, Irish parents
writing into the department about problems.”
[166] Just before the witness withdrew, it emerged not only would parents contact the department on quite a regular basis but teachers would also
do so.
[167] I turn now briefly to the evidence of Mr. McGleannain, the inspector. He made clear that no complaint was ever made to him about any
of the alleged misbehaviour of the principal, the first defendant. Under
cross-examination however, he was asked the following question and gave
the following answer:“Q. If, for example, it came to your attention that a teacher was of bad
character, for whatever reason, that would be something which
within the rules you would feel it appropriate to report upon to the
department. You might almost report upon it to the manager, but it
would be appropriate to report it to the department?
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A. The procedure would be you would visit the school to try to
establish for oneself whether in fact there was any possible
substance in the complaint or the report, and you would next bring
it to the attention of the manager of the school, and then you would
prepare a report and a recommendation and send it to the
department.”
He explained that the reporting to the department would, in practice, be
to the deputy chief inspector. Mr. McGleannain then agreed with counsel
that the department, through the deputy chief inspector, would take an
interest in the report and would consider a number of alternatives, possibly
further investigation by Mr. McGleannain but, ultimately, would consider
whether or not action was required. It was then also put to the inspector
that another channel to which complaints could be made would be direct
complaints to the Minister. He confirmed that that was so. He also
confirmed that in such a situation he would be required to investigate the
complaint with the teacher, the principal and the manager. When asked
whether if a teacher was guilty of misconduct of any kind there could result
a disciplinary action under r. 108 of the relevant rules, Mr. McGleannain
explained that if the misconduct was within the area of the curriculum that
would be so but otherwise would have to be “referred onwards”. That
expression was explained later as meaning superiors within the Department
of Education. However, the inspector accepted that if he had become aware
of sexual abuse of a pupil or a serious allegation of such abuse, he would
“certainly” have reported that to the department. He went on to say that the
first line of investigation would be by the manager and from there it would
go to the department. There then followed the following questions and
answers:“Q. If the manager failed to act – assume for a second that there was
sexual abuse – if the manager failed to act appropriately, the
department would have within its power to take the necessary
action by, for example, withdrawing recognition of the teacher; is
that not correct?
A. There would be a formal investigation.
Q. Conducted by the department?
A. Conducted by a deputy chief inspector.
Q. I think the last witness mentioned that the department retained to
itself, or the board perhaps in the older days, the right to suspend a
teacher for whatever reason might arise, and presumably that
might arise in the context of an investigation of a sexual nature?
A. The withdrawal of recognition is what the Minister would have
now, the suspension would be a managerial function.”
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[168] Under further questioning, the inspector made it clear that if an
allegation of sexual assault by a teacher on a national school pupil was
considered well founded by the high powered inquiry set up by the
department, it could lead to withdrawal of recognition or to a garda
investigation, but if the option of a garda investigation was adopted and if
the gardaí found the complaint justified then there would be withdrawal of
recognition. Indeed, Mr. McGleannain accepted that it was “really inconceivable to imagine that there could be any other result”. The inspector
then accepted that for all practical purposes withdrawal of recognition was
a dismissal from the school. In this connection, there was a major difference between dismissal by the manager and withdrawal of recognition by
the department. If there was an ordinary dismissal by the manager, the
teacher might obtain an alternative position in another school. If, on the
other hand, recognition was withdrawn that in effect meant that his licence
to teach was withdrawn.
[169] My reason for covering in such detail the evidence of Professor
Coolahan and Mr. McGleannain is to demonstrate that the role of the
department in relation to an ordinary national school goes way beyond
merely paying the teachers’ salaries and ensuring that a curriculum is
complied with.
[170] With that factual background, I turn now to the question of law
as to whether this State could be held to be vicariously liable of the sexual
assaults complained of.
[171] Although it is trite law, it is nevertheless useful to reiterate that a
person or body who is vicariously liable is not by definition himself or
itself at fault. In other words, vicarious liability is a form of strict liability. I
think it is fair to say that in the common law world generally there is a
pragmatic element involved as to when and where vicarious liability is
imposed. Two passages from MacMahon and Binchy on the Law of Torts
neatly summarise the position. The first is at p. 1092, para. 43.02 and reads
as follows:“Historically speaking this example of strict liability can be traced
to earliest times although its modern form in England dates from the
end of the 17th century. It survived the ‘no liability without fault’ era,
to some extent as an anomaly, but nowadays with the trend towards no
fault concepts it can be sustained by more modern justifications such
as risk creation and enterprise liability. In other words, the concept of
vicarious liability has dovetailed nicely with the more modern ideas
that the person who creates the risk, or the enterprise which benefits
from the activity causing the damage, should bear the loss. Such
persons or enterprises are in a good position to absorb and to distribute
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the loss by price controls and through proper liability insurance.
Liability in these cases should, it is felt, follow ‘the deep pocket’.”
[172] The authors go on to point out, of course, as I have done, that the
wrongs must arise out of or be within the scope of tortfeasor’s “employment”. This condition has given rise to much litigation but I do not think it
is an issue on this appeal. The second passage is contained in para. 43.04,
p. 1092 of the same work:“The instance given above where vicarious liability can arise –
between employer and employee, principal and agents, and firm and
partner – do not constitute an exhaustive list. Other instances of
vicarious liability can arise, where the law will hold one person liable
for the wrongs of another even though no formal legal relationship
exists between the parties in question.”
[173] The authors go on to deal with a decision of this court which
they described as having “strikingly illustrated” the above principles. This
is Moynihan v. Moynihan [1975] I.R. 192. Bearing in mind the wholly
different factual situation in that particular case and indeed at any rate, I am
not placing any reliance on it in the views which I will be expressing. As I
see it, that was a sui generis decision if ever there was one. It was vicarious
liability for the turning over of a teapot by a young child in a private family
house. I would prefer to base my judgment on the broad principles, as
referred to in MacMahon and Binchy and as adopted by the mainstream
common law courts.
[174] Perhaps the leading modern case in common law jurisdictions is
Bazley v. Curry (1999) 174 D.L.R. (4th) 45 which was a decision of the
Supreme Court of Canada delivered on the 17th June, 1999. The judgment
with which the other members of the court concurred was delivered by
McLachlin J. In that particular case a children’s foundation, a non-profit
organisation, operated two residential care facilities for the treatment of
emotionally troubled children. The foundation authorised its employees to
act as parent figures for the children. The foundation hired a paedophile to
work in one of its homes without knowing he was such. In fact it had
checked him out and had been informed he was a suitable employee. The
Supreme Court of Canada upheld the decision of the Court of Appeal to
the effect that the foundation was vicariously liable notwithstanding no
fault on its part. McLachlin J. under the heading “Policy Considerations”
says the following:“Vicarious liability has always been concerned with policy:
Fleming (Law of Torts) at pp 409 et seq. The view of early English law
that a master was responsible for all the wrongs of his servants (as well
as his wife’s and his children’s) represented a policy choice, however
inarticulate, as to who should bear the loss of wrongdoing and how
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best to deter it. The narrowing of vicarious responsibility with the
expansion of commerce and trade and the rise of industrialism also
represented a policy choice. Indeed, it represented a compromise
between two policies, the social interest in furnishing an innocent tort
victim with recourse against a financially responsible defendant and a
concern not to foist undue burdens on business enterprises: Fleming,
ibid. The expansion of vicarious liability in the 20th century from the
authorisation – based liability to broader classes of ascription is
doubtless driven by yet other policy concerns.
‘Vicarious liability cannot parade as a deduction from legalistic premises but should be frankly recognised as having its basis in
a combination of policy consideration.’ (Fleming at p. 410)
The focus on policy is not to diminish the importance of legal
principle. It is vital that the courts attempt to articulate general legal
principles to lend certainty to the law and guide future applications.
However, in areas of jurisprudence where changes have been occurring in response to policy considerations, the best route to enduring
principle may well lie through policy. The law of vicarious liability is
just such a domain.”
[175] Later on in the judgment, the judge further observes as follows:“First and foremost is the concern to provide a just and practical
remedy to people who suffer as a consequence of wrongs perpetrated
by an employee. Fleming expresses this succinctly (at p. 410)
‘A person who employs others to advance his own economic
interest should in fairness be placed under a corresponding liability
for losses incurred in the course of the enterprise.’
… This principle of fairness applies to the employment enterprise
and hence to the issue of vicarious liability. While charitable enterprises may not employ people to advance their economic interests,
other factors discussed below, make it fair that they should bear the
burden of providing a just and practical remedy for wrongs.”
[176] In a later decision of the Supreme Court of Canada in Blackwater v. Plint [2005] 3 S.C.R. 3, the court approved in a sexual assault case a
trial judge’s finding of joint vicarious liability against the church and the
State. In that particular case fault was apportioned 75% to Canada and 25%
to the church.
[177] The relevant Canadian cases have all been put before this court
but I do not want unnecessarily to lengthen this judgment by going into
them in more detail than I have done. It is sufficient at this stage to note
that in the leading House of Lords decision of Lister v. Hesley Hall Ltd.
[2001] UKHL 22, [2002] 1 A.C. 215 [2002], Bazley v. Curry (1999) 174
D.L.R. (4th) 45 was broadly approved and applied and other Canadian
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decisions were also relied on including Jacobi v. Griffiths (1999) 174
D.L.R. (4th) 71 also included in the books of authorities before us. Lister v.
Hesley Hall Ltd. itself was primarily concerned with scope and is not
particularly relevant to this case.
[178] Fennelly J., at the hearing of the appeal, asked counsel for the
plaintiff why the Church was not sued. He was using the expression “the
Church” in a broad sense. Indeed he may not have used that precise word
but it was to that effect. At first, no satisfactory answer was given but later
it seemed to emerge that the main reason was a practical one of having to
sue legal personal representatives of the deceased manager Archdeacon
Stritch or possibly of others such as the deceased Bishop Lucey or the
deceased Fr. Ó Ceallaigh, the curate who for all practical purposes was
acting manager after so many years. I ask myself whether in the context
that this plaintiff was not to blame for delaying bringing her proceedings
(for all the reasons well known to the court) does she have “a just and
practical remedy” to use the words of McLachlin J. in being forced to sue
anyone or more of the following:1. the personal representative of Archdeacon Stritch;
2. the personal representative of Bishop Lucey, the relevant patron at
the time;
3. the personal representative of Fr. Ó Ceallaigh who appears to have
been the acting manager.
[179] The relevant executor or administrator if there ever was one may
be dead, therefore necessitating an application to the court for a special
grant de bonis non. Where would the assets to meet such a judgment be?
[180] I think that in the circumstances of the relationship between
Church and State, as already explained in relation to this school, exemption
from vicarious liability by the State is not just. In my view, there was quite
sufficient connection between the State and the creation of the risk to
render the State liable. This does not mean, of course, that relevant Church
authorities would not also be liable but they are not before the court.
[181] There is another proviso which I would add. I am not entirely
convinced that in this day and age the fact that a bishop/patron is not a
corporation sole should necessarily preclude an action against the current
bishop and execution against the diocesan assets. But none of that arises
here. I think there have been many cases in the past where actions have
been brought against a diocese relating to events that occurred under a
former bishop and where a current bishop would not take the point either
as a matter of honour or because of insurance cover or both. But again
none of that arises in this case. I have only concerned myself with the issue
of whether irrespective of Church liability vicarious or otherwise there
should be on the facts of this case vicarious liability on the part of the State.
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There is no direct precedent that can be relied on because of the unique
triangular relationship already described in the case of primary schools in
Ireland which are Church managed but subject to State regulations.
Applying the general modern principles underlying vicarious liability, I
take the view that it is wrong to exempt the State from vicarious liability in
this case and I would, therefore, allow the appeal.
Fennelly J.
[182] 1. This appeal concerns legal liability for sexual abuse of children. The calamity of the exploitation of authority over children so as to
abuse them sexually has shaken society to its foundations. Cases of sexual
abuse have preoccupied our criminal courts and this court for many years.
It is surprising that here for the first time this court is confronted with
questions relating to the liability of institutions, extending to the State
itself, for sexual abuse perpetrated, as in this case, on schoolchildren in a
national school, by a teacher. On the other hand, counsel have cited a
number of authorities from other common law jurisdictions to whose
decisions we normally accord considerable respect.
[183] 2. The appeal is an attempt to develop traditional common law
principles of vicarious liability for tortious acts in the very particular setting
of the relationship between the State, on the one hand, and the managers of
and teachers in national schools on the other. The appeal is from a judgment of de Valera J. in the High Court. The judge dismissed the plaintiff’s
claim for damages against the second, third and fourth defendants (see
[2006] IEHC 13), though the plaintiff secured an award of damages by
default against the teacher who perpetrated the abuse.
The facts
[184] 3. The plaintiff was born in 1964. She was a pupil in Dunderrow
national school, a mixed two teacher school, at Kinsale, Co. Cork, where
the first defendant was principal. In 1973, when the plaintiff was eight
years of age, the first defendant, at the request of the plaintiff’s mother,
gave her individual music lessons (how to play the melodica). These music
lessons took place in the first defendnt’s classroom either during the play
break or in the afternoons after school. He used these occasions to perpetrate sexual abuse on the plaintiff. Commencing with the second music
lesson, the first defendant gradually progressed from rubbing the plaintiff’s
tummy outside her clothes to the point in about the fifth music lesson
where he engaged in digital genital abuse of her. That digital genital abuse
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took place over the remainder of the lessons until the summer holidays of
1973.
[185] 4. Dunderrow was a Catholic school in the diocese of Cork and
Ross. Its manager was Canon Stritch, who, according to the evidence, was
then elderly and infirm. He died in 1975. Sometime in 1971, the mother of
another child at the school complained to one Fr. Ó Ceallaigh that her
daughter had suffered some form of sexual abuse at the hands of the first
defendant. Fr. Ó Ceallaigh was said to have attended at the school,
apparently in the absence of the manager. The plaintiff claims that he was
de facto manager.
[186] 5. Some time in 1973 a number of other complaints of abuse by
the first defendant of other children at the school came to light. Following a
meeting of parents chaired by Fr. Ó Ceallaigh, the first defendant went on
sick leave. On the 14th January, 1974, Fr. Ó Ceallaigh wrote to the
Department of Education, on behalf of Canon Stritch, stating that the first
defendant had given notice of his resignation from his post effective from
the 31st January, 1974, and naming the teacher whom he planned to
appoint to the first defendant’s post. It does not appear that the department
was informed of the complaints against the first defendant.
[187] 6. Many years later a criminal prosecution was brought against
the first defendant. In June, 1998 he pleaded guilty to 21 sample charges
out of a total of 386 relating to sexual abuse of 21 girls who had been in his
care at Dunderrow school.
[188] 7. The present civil proceedings were commenced on the 29th
September, 1998. The plaintiff claims damages for sexual assaults committed on her between January and “the summer holidays” of 1973. The
plaintiff obtained judgment by default against the first defendant, who has
taken no part in the proceedings.
[189] 8. The action against the other defendants was heard from the
2nd to the 12th March, 2004. For convenience, I will describe those
defendants as the State. The plaintiff’s claim is that the State is vicariously
liable for the sexual assaults perpetrated on her by the first defendant. The
statement of claim also alleges that the State was negligent, as distinct from
being vicariously liable, in a number of respects in relation to the recognition, examination and supervision of the school and in failing to put in
place appropriate measures and procedures to detect and prevent sexual
abuse by the first defendant.
[190] 9. de Valera J. rejected two arguments in defence advanced by
the State:- he held that the plaintiff’s claim was not statute barred and that
it should not be defeated on the grounds of excessive delay. The judge also
ruled, at the conclusion of the plaintiff’s case, that the State had no case to
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answer in respect of the allegations of negligence (other than on the basis
of vicarious liability). There is no appeal against any of these rulings.
[191] 10. On the 20th January, 2006, de Valera J. delivered judgment
dismissing the claim of the plaintiff. He held that the State was not
vicariously liable for the acts of sexual abuse committed by the first
defendant against the plaintiff (see [2006] IEHC 13).
[192] 11. The appeal is limited to the issue of vicarious liability. The
plaintiff included, under that heading, a complaint that the trial judge failed
to deal with the plaintiff’s complaint that the second defendant was
vicariously liable for the failure of the school manager to act on a complaint of earlier acts of sexual abuse. This is a reference to the complaint of
a mother of a different child made to Fr. Ó Ceallaigh in 1971. This ground
of appeal has not been pursued, though I will refer to it briefly later in this
judgment.
[193] 12. The only issue on the appeal is whether the State is vicariously liable for the acts of the first defendant, who was, at all relevant
times, a teacher employed and working in a national school under the
management of the local Catholic priest.
National schools
[194] 13. In his judgment de Valera J. summarised the factual relationship between the State and national schools in Ireland very succinctly as
follows:“The selection and appointment of any person as a teacher was a
prerogative of the manager as was such a teacher’s appointment as
principal. It was the function of the Department of Education (and
hence the Minister) to pay the salary of such teachers and to ensure
that they had the necessary qualifications. The department also exercised a supervisory role in the overseeing of teacher’s activities in the
school. Mr. McGleannain in his evidence, stated in general terms ‘the
manager was the direct governor of the school’ and I accept this as
being the situation.”
[195] 14. The trial judge applied the reasoning of O’Higgins J. in Delahunty v. South Eastern Health Board [2003] IEHC 132, [2003] 4 I.R.
361. He noted that the ownership of the school was vested in a Roman
Catholic Diocese, which stood in a similar position in relation to the school
to that of the religious order in Delahunty v. South Eastern Health Board to
the industrial school. The State funded salaries in a similar manner in both
institutions and the requirements imposed on the department in relation to
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inspection were more onerous in respect of the industrial school than
national schools, and Dunderrow in particular.
[196] 15. The High Court had the benefit of the evidence of Professor
John Coolahan, formerly of the National University of Ireland at
Maynooth, a leading expert in the history of education in Ireland and
author of Irish Education; History and Structure. Professor Coolahan
explained that history in a way which is highly relevant to the present
appeal. Hardiman J. has related that history in detail in his judgment. I will
give a brief outline.
[197] 16. I will commence with a famous letter of October, 1831 the
“Stanley letter” written by Lord Stanley, Chief Secretary for Ireland, which
is the foundation document of the national school system. A new Board of
Commissioners of National Education was to be the agency through which
resources would be deployed to the schools. It was fundamental, according
to Professor Coolahan, that there was not to be a State system of schools,
other than in the case of a small number of “model” schools. There was to
be a State supported system. Schools would be independent but could
obtain State support, provided that they agreed to abide by regulations
drawn up by the Board.
[198] 17. The different religious denominations were determined to
preserve and guard their independence and their own distinct religious
education. Although the Board had wished to promote a concept of mixed
education, the national schools developed into a predominantly denominational system in terms of managers, pupils and teachers. A school was
owned by a patron (in the case of Catholic schools usually the Bishop) who
appointed the manager. The manager had day to day responsibility.
[199] 18. The division of power was very clear. The commissioners
laid down regulations for control of the curriculum and such matters as
textbooks and teacher training. On the other hand the appointment and
dismissal of teachers was the prerogative of the manager, who was almost
always a clergyman and hence responsible for the “moral probity” of the
school. The manager also had responsibility under regulations for the
maintenance and upkeep of the school.
[200] 19. Neither national independence nor the Constitution of 1937
led to any essential change to this structure, which, at the date of the events
with which this case is concerned, had endured for more than 140 years.
Following independence, there was, of course, greater emphasis on
nationalism, and on Irish language and culture. But there was little or no
change in the system. In the case of Catholic schools, in particular, there
were Catholic managers, Catholic teachers and Catholic children. The
constitutional obligation of the State to “provide for” free primary education tended to emphasise the original objective of State support for, as
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distinct from direct State provision of education. Hardiman J. has cited
tellingly in the judgment he has delivered today from a number of relevant
judicial decisions. Kenny J. stated, in his judgment in Crowley v. Ireland
[1980] I.R. 102 at p. 126:“That historical experience was one of the State providing
financial assistance and prescribing courses to be followed at schools;
but the teachers, though paid by the State were not employed by and
could not be removed by it: this was the function of the manager of the
school who was almost always a clergyman.”
[201] 20. In more recent times, changes have included the appointment
in the case of almost all schools, of boards of management to include
representatives of parents and teachers. State financial provision has
greatly increased. The State now pays the teachers directly. The State
prescribes the qualifications of teachers.
[202] 21. Inspection of schools has always formed a crucially
important part of the system of State oversight and maintenance of
standards. It enables the Minister to be satisfied about the quality of the
system. Schools are regularly inspected by department appointed
inspectors who are assigned to particular areas and schools. The inspector
would report generally to the department on the efficiency of the school in
all its aspects. This would extend to informing the manager of weaknesses
or problems. Geoghegan J., in his judgment delivered today, quotes
extensively from the evidence of the experts regarding the inspection
system.
[203] 22. The current rules for national schools continue the national
school system as described by Professor Coolahan. Many matters are, to
borrow from the language of Murnaghan J. in his judgment in McEneaney
v. Minister for Education [1941] I.R. 430 at p. 439, “minutely provided for
in rules and regulations made by the board [now the Minister]”. These
rules constitute a comprehensive system of regulation of almost all aspects
of schools, including school buildings, hours and time tables and the
qualifications of teachers. They provide for the recognition of patrons. A
patron “may manage the school himself or may nominate a suitable person
to act as manager”. Rule 15 provides:“The manager of a national school is charged with the direct
government of the school, the appointment of the teachers, subject to
the Minister’s approval, their removal and the conducting of the
necessary correspondence.”
[204] 23. Managers are “required to submit without delay all proposed
changes of teachers to the department for approval”.
[205] 24. Much importance was attached at the hearing of the appeal to
r. 108, which provides (in part):-
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“Where the Minister is satisfied that a teacher has conducted
himself improperly, or has failed or refused to discharge his duties
under the School Attendance Act 1926 … the teacher is dealt with as
the Minister may determine. Penal action including prosecution,
withdrawal of recognition in the capacity in which the teacher is
serving, or in any capacity as a teacher, withdrawal or reduction of
salary, may be taken when in the opinion of the Minister such action
appears warranted.”
[206] 25. In substance, the rules follow the system of allocation of responsibility which has existed since 1831, even if, in modern times, the
State plays a more intrusive role. Responsibility for day to day management and, in particular, the hiring and firing of teachers remains with the
manager. In this latter respect, it is important to distinguish between, on the
one hand, recognition and, on the other, employment of a teacher. A
teacher may not be employed if his qualifications are not recognised by the
Minister and, if the Minister withdraws recognition, he may be unemployable. Nonetheless, it is the manager and not the Minister who decides on
which teacher to employ. The contract of employment is between the
manager and the teacher. The manager may dismiss a teacher without the
sanction of the Minister.
Vicarious liability
[207] 26. In order to fix the State with responsibility for the criminal
assaults committed upon her by the first defendant, the plaintiff invokes the
principle of vicarious liability as it has been developed in the common law.
Assuming the first defendant, as the principal teacher of a national school,
to have been acting in the capacity of a servant or employee of the State, it
is claimed that vicarious liability is sufficiently capacious to bring the
claim home against the State. It will be necessary to test the assumption
mentioned in the preceding sentence.
[208] 27. Firstly, however, I will discuss the principles which apply to
vicarious liability for acts of the sort at issue in this case.
[209] 28. The notion that a person should be made responsible to an
injured party for the effects of acts he has expressly or impliedly authorised
provides the original basis for vicarious liability. Over time, the master’s
liability for his servant’s acts ceased to be based on any assumption that he
had authorised the wrongdoing. It sufficed if the servant had been acting in
the course of his employment. Courts have on occasion explained the
principle in terms of the Latin maxims, respondeat superior and qui facit
per alium facit per se. These have been criticised as unhelpful (see
Salmond on Torts (14th ed., Sweet & Maxwell, 1965), p. 644).
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Nonetheless, they are, to my mind, useful brief statements. They enshrine
the notions of responsibility – respondeat – of a principal for the acts of an
agent and action carried out on behalf of another. A person in authority
may be answerable for the acts of his servant.
[210] 29. Lord Brougham explained the matter in Duncan v. Finlater
(1839) 6 Cl. & F. 894 at p. 910:“The reason that I am liable is this, that by employing him I set the
whole thing in motion; and what he does, being done for my benefit
and under my direction, I am responsible for the consequences of doing it.”
[211] 30. The law, as it developed, dispensed with the need for either
benefit to or direction by the master. On the other hand, Lord Brougham’s
dictum contains an element of the idea of “enterprise liability” upon which
the plaintiff places such store, relying on the decision of the Supreme Court
of Canada in Bazley v. Curry (1999) 174 D.L.R. (4th) 45.
[212] 31. The essentials of the principle, as understood in the very
early 20th century, were expressed in a much quoted and discussed passage
from the first edition of Salmond (Law of Torts, 1st ed., 1907) at p. 83:“A master is not responsible for a wrongful act done by his servant
unless it is done in the course of his employment. It is deemed to be so
done if it is either (1) a wrongful act authorised by the master, or (2) a
wrongful and unauthorised mode of doing some act authorised by the
master.
But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided
they are so connected with acts which he has authorised that they may
rightly be regarded as modes – although improper modes – of doing
them.”
[213] 32. It is the second part, (2), of the Salmond test, concerning an
“unauthorised mode of doing some act authorised by the master,” which is
material for present purposes. At the same time, the time honoured
Salmond passage puts forward the notion of “connected” acts. However,
the cases show that what acts were performed in the course of a servant’s
employment could, on occasion, be interpreted quite narrowly. A test based
on “connection,” as suggested by Salmond, has, more recently, been
treated as central by both the Canadian Supreme Court in Bazley v. Curry
(1999) 174 D.L.R. (4th) 45 and the House of Lords in Lister v. Hesley Hall
Ltd. [2001] UKHL 22, [2002] 1 A.C. 215.
[214] 33. Before considering these two very important cases, however,
it is essential to note two points which are by now very well established in
the case law. Firstly, a master may, in principle, be made liable even for
criminal acts which he has not expressly authorised, provided the acts were
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committed in the course of the servant’s employment. Secondly, the master
may, in certain circumstances, even be responsible for acts which he has
expressly prohibited. Everything depends on the circumstances.
[215] 34. The first of these propositions can be traced back to the beginning of the 20th century. In Cheshire v. Bailey [1905] 1 K.B. 237, a
silversmith hired a brougham and coachman from the defendant to show
his wares to potential customers around London. The coachman, the
employee of the defendant, helped confederates to steal the samples. The
Court of Appeal rejected the claim for damages against the defendant.
Collins M.R. held at p. 241 that the “the crime committed by the driver …
was clearly outside the scope of his employment”. He ruled:“It is a crime committed by a person who in committing it severed
his connection with his master, and became a stranger; and, as the circumstances under which it was committed are known, it raises no presumption of negligence in the defendant.”
[216] 35. That dictum acts on the premise of strict logic. The act of
theft was not authorised by the master and could not be considered to be
within the scope of the authority conferred on the servant. I venture to
suggest that no court would so decide today. The notion that I suffer the
loss of my property which I have confided to a trader whose servant steals,
with no recourse to the master, would offend both justice and commonsense.
[217] 36. The decision of the House of Lords in Lloyd v. Grace, Smith
& Co. [1912] A.C. 716 placed a different complexion on the matter. A
widow, a client of a firm of solicitors, was defrauded by the managing
clerk of the firm. The clerk fraudulently induced her to execute deeds
transferring title in two cottages to himself and he then sold them for his
own benefit. The Law Lords were unanimously of the view that the clerk
had been acting within the course of his employment by the solicitor. The
case is, in addition, clear authority for the proposition that the liability of
the principal is not dependant on the principal having received any benefit
from his servant or agent’s wrongdoing. Lord Shaw, at p. 740, addressed
the doubts that had been raised in that and other cases about the fact that
the principal, a respected solicitor, was innocent of any involvement in the
fraud as follows:“I look upon it as a familiar doctrine as well as a safe general rule,
and one making for security instead of uncertainty and insecurity in
mercantile dealings, that the loss occasioned by the fault of a third person in such circumstances ought to fall upon the one of the two parties
who clothed that third person as agent with the authority by which he
was enabled to commit the fraud.”
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[218] 37. Cheshire v. Bailey [1905] 1 K.B. 237 was cited in argument
before the court but not expressly overruled. In the course of his speech,
Lord Macnaghten cited a passage from the judgment of Willes J. in
Barwick v. English Joint Stock Bank [1867] L.R. 2 Exch. 259, which has
been treated as authoritative before and since at p. 733:“In all these cases it may be said, as it was said here, that the master had not authorised the act. It is true he has not authorised the particular act, but he has put the agent in his place to do that class of acts,
and he must be answerable for the manner in which that agent has
conducted himself in doing the business which it was the act of his
master to place him in.”
[219] 38. In Johnson & Johnson (Ir.) Ltd. v. C.P. Security Ltd. [1985]
I.R. 362 Egan J., in the High Court, awarded damages to the plaintiff
against the defendant, a company providing specialist protection, when
their own security officer facilitated thefts from premises he was supposed
to be guarding. Egan J. considered that Cheshire v. Bailey [1905] 1 K.B.
237 was no longer good law in England. He referred to Lloyd v. Grace,
Smith & Co. [1912] A.C. 716 and also cited Morris v. C.W. Martin & Sons
Ltd. [1966] 1 Q.B. 716, where a company which had accepted a fur stole
for cleaning, was held liable to the owner when one of its employees stole
the item. While the judgments in the latter case turn very much on the law
regarding bailments, it is notable that Lord Denning regarded the law as
having been “revolutionised” by the House of Lords in Lloyd v. Grace,
Smith & Co. which Diplock L.J., in his judgment, described as a “landmark
in this branch of the law”.
[220] 39. It is, therefore, a recurring theme that the vicarious liability
of the master is explicable by reference to the fact that the master has put
the servant in place to carry on a particular activity. It is not necessary that
the master had authorised the particular act complained of and he need not
have derived benefit from it. In Imperial Chemical Industries v. Shatwell
[1965] 1 A.C. 656, Lord Pearce stated at p. 685:“The doctrine of vicarious liability has not grown from, any very
clear, logical or legal principle but from social convenience and rough
justice. The master having (presumably for his own benefit) employed
the servant, and being (presumably) better able to make good any
damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant
within the scope of it.”
[221] 40. The second point which has been established in the cases is
that an employer is not necessarily (necessarily being the key word)
protected against liability merely because he has prohibited his employee
from carrying out his work in a particular way. In Canadian Pacific
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Railway Co. v. Lockhart [1942] A.C. 591, an employee drove his own
uninsured motor car for the purposes of his work, in contravention of
express orders to the contrary. However, his driving of the car was incidental to work which he was employed to do (see also Limpus v. London
General Omnibus Co. (1862) 1 H. & C. 526). In Williams v. A. & W.
Hemphill Ltd. [1966] S.C. (H.L.) 31, a lorry driver deviated substantially
from his route contrary to instructions. An accident occurred on the detour
due to the negligence of the driver. Lord Pearce on behalf of a unanimous
House of Lords assessed the issue of vicarious liability by balancing the
extent of the deviation against the connection with the work of the employer as follows, at p. 46:“Had the driver in the present case been driving a lorry which was
empty or contained nothing of real importance, I think that so substantial a deviation might well have constituted a frolic of his own. The
presence of passengers, however, whom the servant is charged qua
servant to drive to their ultimate destination makes it impossible (at all
events, provided that they are not all parties to the plans for deviation)
to say that the deviation is entirely for the servant’s purposes. Their
presence and transport is a dominant purpose of the authorised journey,
and, although they are transported deviously, continues to play an essential part. It was said in argument that there must be some limits to
that contention and that one could not hold that, if the driver had gone
to Inverness, he would still be acting on his master’s business. No
doubt there are such limits to the argument as common sense may set
on the facts of each case. But when there are passengers whom the
servants on his master’s behalf has taken aboard for transport to Glasgow, their transport and safety does not cease at a certain stage of the
journey to be the master’s business, or part of his enterprise, merely
because the servant has for his own purposes chosen some route which
is contrary to his instructions.
The more dominant are the current obligations of the master’s
business in connection with the lorry, the less weight is to be attached
to disobedient navigational extravagances of the servant. In weighing
up, therefore, the question of degree, whether the admittedly substantial deviation of the vehicle with its passengers and baggage was such
as to make the lorry’s progress a frolic of the servant unconnected with
or in substitution for the master’s business, the presence of the passengers is a decisive factor against regarding it as a mere frolic of the servant. In the present case the defenders remained liable, in spite of the
deviation, for their driver’s negligence.”
[222] 41. I pause at this point before considering the more recent authorities, to take stock of the ordinary rule concerning vicarious liability for
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the illegal acts of an employee. The second leg of the Salmond test has
served the law well. It asks whether the act complained of is an unauthorised mode, adopted by the servant, of performing the work of the employer. Strict logic might suggest that fraud on the client (as in Lloyd v.
Grace, Smith & Co. [1912] A.C. 716) or theft of the customer’s goods (as
in Morris v. C.W. Martin & Sons Ltd. [1966] 1 Q.B. 716) could not be so
considered. The law adopts a solution which is not strictly logical in this
sense. Clearly theft of the customer’s property is not, in the ordinary sense,
a mode of performing a service for that customer. The law asks, however,
whether the act of the servant is “closely connected” to the employer’s
work. It says that, where two parties (the cheated customer and the
employer of the dishonest servant) are innocent, it is just, when assessing
whether the servant was acting within the scope of his employment, that
the employer, who employed the dishonest servant, rather than the customer should bear the loss.
[223] 42. The decision of the Supreme Court of Canada in Bazley v.
Curry (1999) 174 D.L.R. (4th) 45, delivered in June, 1999, represents a
significant development in this branch of the law. It raises directly the issue
of liability for acts of sexual abuse committed by an employee. The case
involved a non-profit organisation, which operated two residential care
facilities for the care of emotionally disturbed children. The foundation
authorised its employees to act as parent figures for the children. They
were to do everything a parent would do, from general supervision to
intimate duties like bathing the children and putting them to bed. The
foundation had unwittingly employed a paedophile. He sexually abused
one of the children. The abused child sued the foundation. The claim was
based, not on any negligence in hiring the employee, but on vicarious
liability. The Supreme Court of Canada upheld a finding by a lower court
in favour of the plaintiff.
[224] 43. McLachlin J. took the Salmond test as her starting point. She
then engaged in a critique of the utility of the test. She considered that, in
the absence of clear precedent, the courts should turn to policy for guidance. She adopted a two stage approach to the second branch of the
Salmond test:“First, a court should determine whether there are precedents
which unambiguously determine on which side of the line between
vicarious liability and no liability the case falls. If prior cases do not
clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of broader policy rationales
behind strict liability.”
[225] 44. She conducted a critical review of a number of the authorities, seeking to discern some underlying logic or unifying principle. For
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example, she speculated as to whether sexual torts are closer to physical
assaults or, as she seemed to suggest, to financial dishonesty (because of its
“trust abusing” character). She criticised the Court of Appeal in England
(in Trotman v. North Yorkshire County Council [1999] L.G.R. 584) for
engaging in semantics. The first-instance judge in Bazley v. Curry (1999)
174 D.L.R. (4th) 45 had found for the plaintiff on the basis of the second
leg of the Salmond test. He said:“If a postal clerk’s theft and a solicitor’s clerk’s fraud can be said
to have been committed in the course of their employment, I can see
no sound basis in principle on which it can be concluded that Curry’s
criminal conduct should not attract vicarious liability.”
[226] 45. McLachlin J. then concluded that precedent did not resolve
the issue, though the passage just quoted suggests that only an “unambiguous” precedent could satisfy the question she had posed for herself. It
seems to me that it might well have been possible to decide for the plaintiff, as the first instance judge had done, in reliance on the second part of
the Salmond test. There was a close connection between the abusing acts
and the work which the employees were required to perform. That approach accords more with the normal common law method of incremental
development of law based on precedent, resorting, where appropriate to
analogy and distinction and applying commonsense of the sort described
by Lord Pearce in the passage quoted at para. 221 above. McLachlin J.
considered that she must proceed to the second stage and inquire into
“policy reasons for vicarious liability, in the hope of discerning a principle
to guide courts in future cases”.
[227] 46. The judge proceeded to engage in a sophisticated analysis of
the policy considerations which should underlie vicarious liability. The
principal policy considerations were:- “(1) provision of a just and practical
remedy for the harm; and (2) deterrence of future harm”. In respect of the
first, she referred to the employer being a “more promising source of
compensation” and to the fact that the employer had created the enterprise
which carries with it certain risks. Ultimately, and strikingly she came to
the conclusion that:“The fundamental question is whether the wrongful act is sufficiently related to conduct authorised by the employer to justify the imposition of vicarious liability. Vicarious liability is generally
appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom,
even if unrelated to the employer’s desires.”
[228] 47. Finally, when applying the principles developed in her extensive review of policy considerations, she posed the question:-
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“The appropriate inquiry in a case such as this is whether the employee’s wrongful act was so closely connected to the employment
relationship that the imposition of vicarious liability is justified in policy and principle.”
[229] 48. In the final analysis, it does not seem to me that the Supreme
Court of Canada reached a result far removed from that attributed to the
judge at first instance or which could have been derived from the existing
case law based on the second part of the Salmond test, although, along the
way, policy considerations played an important role. On the whole the
named policy considerations all seemed to weigh in favour of an award to
the plaintiff.
[230] 49. The central question before the House of Lords in Lister v.
Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215 was succinctly
summarised by Lord Steyn as being whether “as a matter of legal principle
the employers of a warden of a school boarding house, who sexually
abused boys in his care, may depending on the particular circumstances be
vicariously liable for the torts of their employee” (emphasis added). The
claimants were residents in a boarding house attached to a school owned
and managed by the defendants. The headnote to the report summarises the
unanimous decision of the House as follows at p. 215 :“… that having regard to the circumstances of the warden’s
employment, including close contact with the pupils and the inherent
risks that it involved, there was a sufficient connection between the
work that he had been employed to do and the acts of abuse that he had
committed within the scope of his employment and the defendants
should be held vicariously liable for them.”
[231] 50. Lord Steyn regarded the decision of the Supreme Court of
Canada in Bazley v. Curry (1999) 174 D.L.R. (4th) 45 as having
established a principle of “close connection”. While tributes are paid to the
great advance wrought by Bazley v. Curry, the House of Lords laid more
emphasis, as I would, on justice, precedent and practicality. Lord Steyn, in
particular at p. 223 took the Salmond test as having been adopted by
English judges for nearly a century. He thought it was the “germ of the
close connection test adumbrated by the Canadian Supreme Court”. He
continued, at p. 224:“A preoccupation with conceptualistic reasoning may lead to the
absurd conclusion that there can only be vicarious liability if the bank
carries on business in defrauding its customers. Ideas divorced from
reality have never held much attraction for judges steeped in the
tradition that their task is to deliver principled but practical justice.
How the courts set the law on a sensible course is a matter to which I
now turn.”
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[232] 51. Lord Steyn reviewed authorities, including Lloyd v. Grace,
Smith & Co. [1912] A.C. 716 which was a “breakthrough,” before
emphasising the need for “an intense focus on the connection between the
nature of the employment and the tort of the employee”. Lord Steyn
concluded that vicarious liability existed in the case before the House as
follows at p. 230:“Employing the traditional methodology of English law, I am
satisfied that in the case of the appeals under consideration the
evidence showed that the employers entrusted the care of the children
in Axeholme House to the warden. The question is whether the
warden’s torts were so closely connected with his employment that it
would be fair and just to hold the employers vicariously liable. On the
facts of the case the answer is yes. After all, the sexual abuse was
inextricably interwoven with the carrying out by the warden of his
duties in Axeholme House. Matters of degree arise. But the present
cases clearly fall on the side of vicarious liability.”
[233] 52. Lord Clyde also sought a “close connection” to establish vicarious liability and thought that, “in considering the scope of the employment a broad approach should be adopted”. In that way, (see p. 234) an act
“may be seen to be incidental to and within the scope of [the] employment”.
“If a broad approach is adopted it becomes inappropriate to concentrate too closely upon the particular act complained of. Not only do
the purpose and the nature of the act have to be considered but the context and the circumstances in which it occurred have to be taken into
account.”
[234] 53. Some greater connection than mere opportunity is needed,
though one kind of employment situation is “where the employer has been
entrusted with the safekeeping or the care of some thing or some person
and he delegates that duty to an employee”. In such cases, “it may not be
difficult to demonstrate a sufficient connection between the act of the
employee, however wrong it may be, and the employment”. In particular,
Lord Clyde stated at p. 236:“Cases which concern sexual harassment or sexual abuse committed by an employee should be approached in the same way as any
other case where questions of vicarious liability arise. I can see no reason for putting them into any special category of their own.”
[235] 54. The decisions in Bazley v. Curry (1999) 174 D.L.R. (4th) 45
and Lister v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215
constitute a development of the common law of vicarious liability. Those
authorities would enable liability to be imposed, depending on the facts of
the individual case, on employers for wrongful criminal acts of employees
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and thus for acts going beyond any theory of authority or of a merely
wrongful mode of doing the employer’s work. While Bazley v. Curry
explores policy considerations, Lister v. Hesley Hall Ltd. clings to the
incremental tradition of the common law. The test is to be the closeness of
the connection between the abuse and the work which the employee was
engaged to carry out. Lord Clyde said at p. 237:“In addition to the opportunity which access gave him, his position
as warden and the close contact with the boys which that work involved created a sufficient connection between the acts of abuse which
he committed and the work which he had been employed to do. It appears that the respondents gave the warden a quite general authority in
the supervision and running of the house as well as some particular
responsibilities. His general duty was to look after and to care for,
among others, the plaintiffs. That function was one which the respondents had delegated to him. That he performed that function in a way
which was an abuse of his position and an abnegation of his duty does
not sever the connection with his employment. The particular acts
which he carried out upon the boys have to be viewed not in isolation
but in the context and the circumstances in which they occurred.”
[236] 55. Lord Millett’s conclusion, at p. 250, on the same issue is also
important:“In the present case the warden’s duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual
gratification, but that in itself is not enough to make the school liable.
The same would be true of the groundsman or the school porter. But
there was far more to it than that. The school was responsible for the
care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school’s responsibility to the
boys. For this purpose the school entrusted them to his care. He did not
merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the
school had placed him to enable it to discharge its own responsibilities,
with the result that the assaults were committed by the very employee
to whom the school had entrusted the care of the boys.”
[237] 56. The theoretical underpinnings of the doctrine of vicarious
liability are much debated but no clear conclusion emerges. The result is
that strict liability is imposed on an employer regardless of personal fault,
which is especially striking when the acts are criminal and could not
conceivably have been authorised, even impliedly. Lord Steyn thought the
imposition would be fair and just, if the necessary circumstances existed.
Among the reasons suggested in the cases mentioned above is that the
employer should bear the burden because he has “set the whole thing in
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motion” (Lord Brougham) or “has put the agent in his place” (Willes J.) or
is “better able to make good any damage” (Lord Pearce).
[238] 57. The High Court of Australia considered both Bazley v. Curry
(1999) 174 D.L.R. (4th) 45 and Lister v. Hesley Hall Ltd. [2001] UKHL
22, [2002] 1 A.C. 215 in New South Wales v. Lepore [2003] HCA 4,
(2003) 195 A.L.R. 412. Although that case was not cited in argument on
the hearing of the present appeal, I think it appropriate to refer to it as
evidence of convergence of view between the final courts of important
common law jurisdictions. Gleeson C.J., having referred to Bazley v. Curry
and Lister v. Hesley Hall Ltd. stated that he did not accept that they showed
that “in most cases where a teacher has sexually abused a pupil, the wrong
will be found to have occurred within the scope of the teacher’s employment”. He added:“73. However, they demonstrate that, in those jurisdictions, as in
Australia, one cannot dismiss the possibility of a school authority’s
vicarious liability for sexual abuse merely by pointing out that it constitutes serious misconduct on the part of a teacher.”
[239] 58. He then commented further, at paras. 74 and 75, on the issues
that would arise:“74. One reason for the dismissiveness with which the possibility
of vicarious liability in a case of sexual abuse is often treated is that
sexual contact between a teacher and a pupil is usually so foreign to
what a teacher is employed to do, so peculiarly for the gratification of
the teacher, and so obviously a form of misconduct, that it is almost
intuitively classified as a personal and independent act rather than an
act in the course of employment. Yet it has long been accepted that
some forms of intentional criminal wrongdoing may be within the
scope of legitimate employment. Larceny, fraud and physical violence,
even where they are plainly in breach of the express or implied terms
of employment, and inimical to the purpose of that employment, may
amount to conduct in the course of employment.
75. If there is sufficient connection between what a particular
teacher is employed to do, and sexual misconduct, for such misconduct
fairly to be regarded as in the course of the teacher’s employment, it
must be because the nature of the teacher’s responsibilities, and of the
relationship with pupils created by those responsibilities, justifies that
conclusion. It is not enough to say that teaching involves care. So it
does; but it is necessary to be more precise about the nature and extent
of care in question. Teaching may simply involve care for the academic development and progress of a student. In these circumstances,
it may be that, as in John R, the school context provides a mere opportunity for the commission of an assault. However, where the teacher
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student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may
provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course
of employment. The degree of power and intimacy in a teacher student
relationship must be assessed by reference to factors such as the age of
students, their particular vulnerability if any, the tasks allocated to
teachers, and the number of adults concurrently responsible for the
care of students. Furthermore, the nature and circumstances of the sexual misconduct will usually be a material consideration.”
[240] 59. The last sentence of para.74 places liability for acts of sexual
abuse within the established common law canon. Paragraph 75 explains
that liability is by no means automatic.
[241] 60. Both Bazley v. Curry (1999) 174 D.L.R. (4th) 45 and Lister
v. Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215 were considered
by O’Higgins J. in the High Court in Delahunty v. South Eastern Health
Board [2003] 4 I.R. 361. An attempt was made to fix liability on a religious order, which ran an orphanage, for a sexual assault perpetrated by a
housemaster or, alternatively, on the Minister for Education and Science by
virtue of the latter’s statutory responsibility. The facts were unusual. The
plaintiff was not an inmate but a visitor to the orphanage. O’Higgins J. held
that that there was no such connection between the employment of the
housemaster and the assault on the plaintiff as would justify the imposition
of vicarious liability. He held that a fortiori the Minister could not be
liable; the housemaster was not his employee and had no role in his hiring
or firing. O’Higgins J. appears, provisionally at least, to have accepted the
authority of Bazley v. Curry and Lister v. Hesley Hall Ltd. I say “provisionally,” because O’Higgins J. recalled that Costello J., in Health Board v.
B.C. [1994] E.L.R. 27 had said that he could not envisage any employment
in which the vicarious liability would be engaged “in respect of a sexual
assault could be regarded as so connected with it as to amount to an act
within its scope”. That case is analysed in the judgment of Hardiman J.
delivered today. The case did not concern common law principles of
liability but statutory provisions of the Employment Equality Act 1997. In
my view, the statement of Costello J. has to be treated as obiter.
[242] 61. For the sake of completeness, I should mention that the issue
of vicarious liability for damages arose in a very special and particular
context in Shortt v. Commissioner of An Garda Síochána [2007] IESC 9,
[2007] 4 I.R. 587. The defendants argued that the liability of the State for
exemplary damages should be limited or modified where the primary
liability was purely vicarious. Murray C.J. held that there was no basis in
law for limiting the liability of the State to pay exemplary or punitive
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damages by reason of the vicarious nature of its liability. The decision is of
limited relevance in the present context. The primary liability of the State
defendants arose from statute and was not an issue.
[243] 62. Ultimately, I am satisfied that it is appropriate to adopt a test
based on a close connection between the acts which the employee is
engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made. That test, as the
cases have shown, has enabled liability to be imposed on the solicitor’s
clerk defrauding the client (Lloyd v. Grace, Smith and Company [1912] 1
A.C. 716); the employee stealing the fur stole left in for cleaning (Morris v.
C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716) and the security officer
facilitating thefts from the premises he was guarding (Johnson & Johnson
(Ire.) Ltd. v. C.P. Security Ltd. [1985] I.R. 362). In each of these cases, the
action of the servant was the very antithesis of what he was supposed to be
doing. But that action was closely connected with the employment. In
Delahunty v. South Eastern Health Board [2003] 4 I.R. 361, O’Higgins J.,
rightly in my view, held that there was no such close connection. The
employee of the orphanage had abused a visitor, not an inmate.
[244] 63. The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the
situation. It does not, in principle, exclude vicarious liability for criminal
acts or for acts which are intrinsically of a type which would not be
authorised by the employer. The law regards it as fair and just to impose
liability on the employer rather than to let the loss fall on the injured party.
To do otherwise would be to impose the loss on the entirely innocent party
who has engaged the employer to perform the service. The employer is, of
course, also innocent, but he has, at least, engaged the dishonest servant
and has disappointed the expectations of the person to whom he has
undertaken to provide the service. There is no reason, in principle, to
exclude sexual abuse from this type of liability. That is very far, as I would
emphasise, from saying that liability should be automatically imposed. The
decision of O’Higgins J. provides an excellent example of the practical and
balanced application of the test. All will depend on a careful and balanced
analysis of the facts of the particular case. In Bazley v. Curry (1999) 174
D.L.R. (4th) 45 the employees of the care home were required to provide
intimate physical care for the residents. The sexual abuse was held to be
closely connected.
[245] 64. In the present case, there is no claim against the manager or
patron of the school. It is not, therefore, appropriate to decide whether
vicarious liability should be imposed on the direct employer of the first
defendant. In such a case, all the facts would have to be carefully considered or, to recall the words of Lord Steyn already quoted, there must be “an
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intense focus on the connection between the nature of the employment and
the tort of the employee”. It may be relevant to consider whether it matters
that the music lessons were not part of the ordinary school curriculum and
were provided outside normal hours. Counsel for the second to fourth
defendants referred to the residential setting of the abuse in both Bazley v.
Curry (1999) 174 D.L.R. (4th) 45 and Lister v. Hesley Hall Ltd. [2001]
UKHL 22, [2002] 1 A.C. 215. Clearly, that may be a material factor.
However, I express no concluded view.
[246] 65. The important question in the present appeal is whether liability can be imposed on the second to fourth defendants or on any of
them, in other words, on the State. It is immediately necessary to note that,
in each and every one of the cases on close connection, a direct employment relationship existed. The first defendant was not employed by the
second defendant nor by any of the other defendants. He was, in law, the
employee of the manager, Canon Stritch. It is true that he was required to
possess qualifications laid down by the second defendant and to observe
the detailed and minute provisions of the rules for national schools. The
State had disciplinary powers in relation to him pursuant to those rules.
However, the State did not have the power to dismiss him; nor was he
originally engaged by the State. The scheme of the rules and the consistent
history of national schools is that the day to day running of the schools is in
the hands of the manager. The inspection regime does not alter that. The
department inspectors do not have power to direct teachers in the carrying
out of their duties.
[247] 66. All of this is quite graphically confirmed by the facts of this
case. It seems clear that no report was ever made to the second defendant
or his department of the complaints of sexual abuse against the first
defendant, either the original single complaint made to Fr. Ó Ceallaigh in
1971 or the many complaints which surfaced in 1973. All that happened
was that Fr. Ó Ceallaigh wrote a letter to the second defendant on behalf of
Canon Stritch on the 14th January, 1974, informing him that the first
defendant had “given notice of his resignation … effective from Jan 31st
1974.” The same letter named the proposed replacement teacher; Fr. Ó
Ceallaigh said:- “I plan to appoint …”. All this further implies that the
parents made their complaints, not to the second defendant, but to the
manager, i.e., either Canon Stritch or, more likely, Fr. Ó Ceallaigh who
was considered to be acting as de facto manager.
[248] 67. There was no employment relationship between the first defendant and the second defendant. Hardiman J. discusses the principles
concerning the degree of control over a person’s actions for the purposes of
establishing vicarious liability. I prefer to express no opinion on the
decision of this court in Moynihan v. Moynihan [1975] I.R. 192, other than
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to observe that it was based on highly unusual facts. This court was not
asked, at the hearing of the appeal, to over rule it. I cannot see that it
establishes any precedent capable of being applied to the present case. On
normal principles, the State has no vicarious liability for the acts of a
teacher appointed by the manager of a national school under the system of
management of national schools. I do not, of course, exclude the possibility
of liability if it were to be established that, for example, an inspector was
on notice of improper behaviour by a teacher and neglected to take action.
That would not, however, be vicarious liability.
[249] 68. There is no legal basis in this case for the imposition of vicarious liability. For the same reason, insofar as it is necessary to say so,
there can be no liability for the failure of Fr. Ó Ceallaigh to report the 1971
complaint. Fr. Ó Ceallaigh was not the employee of the second defendant.
[250] 69. For these reasons, I would dismiss the appeal.
[Reporter’s note: On the 6th May, 2009, the Supreme Court refused the State’s
application for costs, departing, due to the exceptional circumstances of the case, from
the general principle that costs should follow the event: see [2009] IESC 39.]
Solicitors for the plaintiff: Ernest J. Cantillon & Co.
Solicitor for the second, third and fourth defendants: The Chief State
Solicitor.
Niamh Fennell, Barrister
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