|O'Keeffe -v- Hickey|
| IESC 72|
Supreme Court Record Number:
High Court Record Number:
|1998 10555 P|
Date of Delivery:
Composition of Court:
|Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.|
|Chief Justice agreeing with Hardiman and Fennelly JJ on absence of |
employer/employee relationshiup & with Fennelly J on subsidiary issue re
negligence. Denham J agreeing with judgment of Fennelly J on absence of
Link to Judgment
Murray C.J., Denham J.
THE SUPREME COURT
LEO HICKEY, THE MINISTER FOR EDUCATION
AND SCIENCE, IRELAND AND THE
Judgment of Mr. Justice Geoghegan delivered the 19th day of December 2008
This appeal is brought in an action for damages for personal injuries arising from a series of sexual assaults committed by the first-named defendant/respondent in the course of giving some out of hours lessons in a musical instrument to the plaintiff/appellant in the year 1973 in the national school then being attended by the appellant and of which the first-named respondent was the Principal. The appellant 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 Leo Hickey has been named on the notice of appeal as a defendant/respondent, he is not in reality a respondent 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.
For convenience, I will henceforth refer to the second, third and fourth-named 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.
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.
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 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.
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 the 3rd edition of “Law of Torts” 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 learned authors cite in particular in support of this proposition an unreported judgment of this court delivered the 29th July, 1955 in Doyle v. Fleming’s Coal Mines. 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 the case of New South Wales v. Lepore 212 CLR 511 and which is, I think, the leading case on this subject in Australia. Gleeson C.J. commences his judgment as follows:
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.
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.
Regrettably, this court has become aware through the numerous judicial review cases seeking to stop criminal trials that in many instances 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.
In both sets of written submissions on this appeal, the case of Fox v. Higgins (1912) 46 I.L.T.R. 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:
“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.”
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 paragraph 7.8.4. of the appellant’s submissions to this court which reads as follows:
“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.”
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.
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.
The State has an obligation to provide for free primary education under Article 42.4 of the Constitution which paragraph provides 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 ‘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 pact it appears that vicarious liability should be imposed on the respondents for the acts of the first-named defendant.”
Under the terms of the previous paragraph, i.e., paragraph 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 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.”
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 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.
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 NUI, 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 U.K. 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 a hundred and fifty 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 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:
“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.”
I will return later to the question of what might be regarded as “credentials and teaching qualifications”. At this stage the cross-examination 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:
“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.”
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:
“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.”
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:
“Reportage was a remarkable feature. 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 till fairly recent times the primary school inspectorate was a distinct cadre of inspection which was much more closely linked to the schools and much more authority in the schools than would have been the case, say, in the secondary school inspectorate.”
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.
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?
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.”
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 Inspector agreed with Mr. Callanan, S.C. in cross-examination 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 enquire 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. Mr. Callanan 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 Mr. Hickey, the first-named 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.” Mr. Callanan 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:
“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 terms of international terms, it is remarkably interesting. But anyway the situation in post-primary 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 in 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 much more widely accepted. Of course it has changed now more or less at all levels.”
The dialogue between Mr. Callanan 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.”
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.”
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.
One of the extraordinary features of this case is that the charges to which the first-named 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-named 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.
Professor Coolahan went on to further 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:
“Certainly, yes, and mode of relating with pupils and engaging with them. I think that would be quite usual to get comments like that.”
Mr. Callanan 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.
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. Mr. Callanan then put to Professor Coolahan Rule 121 of the 1965 Rules sub-rule (2) which provided as follows:
“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 intention of the Inspector to investigate it.”
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, 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.”
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.”
After Professor Coolahan had ended his evidence, the learned 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:
“Teachers should pay the strictest attention to the morals and general conduct of their pupils.”
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.
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, Mr. Hickey. 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?
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 Rule 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 DCI (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.”
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.
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.
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.
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 3rd edition neatly summarise the position. The first is at paragraph 43.02 and reads as follows:
“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.”
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 paragraph 43.04 of the same work:
“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 the loss by price controls and through proper liability insurance. Liability in these cases should, it is felt, follow ‘the deep pocket’.”
The learned authors go on to deal with a decision of this court which they described as having “strikingly illustrated” the above principles. This is the case of Moynihan v. Moynihan  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.
Perhaps the leading modern case in common law jurisdictions is Bazley v. Curry 174 D.L.R. 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. At page 14 of the internet version of her judgment McLachlin J. under the heading “Policy Considerations” says the following:
“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.”
Later on in the judgment, the learned judge further observes as follows:
“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 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.”
In a later decision of the Supreme Court of Canada in Blackwater v. Plinth  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 per cent to Canada and 25 per cent to the Church.
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 in Lister v. Hesley Hall Limited  1 A.C. 215 Bazley v. Curry was broadly approved and applied and other Canadian decisions were also relied on including Jacobi v. Griffiths 174 D.L.R. 71 also included in the books of authorities before us. The Lister case itself was primarily concerned with scope and is not particularly relevant to this case
Fennelly J., at the hearing of the appeal, asked counsel for the appellant 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. O’Ceallaigh, the curate who was for all practical purposes acting Manager after so many years. I ask myself whether in the context that this appellant 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. O’Ceallaigh who appears to have been the acting Manager.”
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?
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.
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 vicariously or otherwise there should be on the facts of this case vicarious liability on the part of the State. 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.
O’Keeffe v. Hickey & Ors.
“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.”