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Judgment
Title:
O'Keeffe -v- Hickey
Neutral Citation:
[2008] IESC 72
Supreme Court Record Number:
174/06
High Court Record Number:
1998 10555 P
Date of Delivery:
12/19/2008
Court:
Supreme Court
Composition of Court:
Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.
Judgment by:
Hardiman J.
Status:
Approved
Result:
Dismiss
Details:
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
employment relationship.
Judgments by
Link to Judgment
Concurring
Hardiman J.
Murray C.J.
Fennelly J.
Murray C.J., Denham J.
Geoghegan J.


THE SUPREME COURT

Murray C.J. 174/06
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.

LOUISE O’KEEFFE

Plaintiff/Appellant
and

LEO HICKEY, THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY GENERAL
Respondents

JUDGMENT delivered on the 19th day of December, 2008, by Mr. Justice Hardiman.
This case raises difficult issues in the area of vicarious liability and Church/State relations. The plaintiff says that thirty-five 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 she is dissatisfied with the amount awarded (about €53,000). In the present action she claims that the Minister, the State and the Attorney General as their representative - 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.

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 learned 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.

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.

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 Minister from these 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.

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.

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.

Factual background.
The plaintiff was born in November, 1964, and is now about 44 years of age. She was married but is now separated and has two young children.

The first-named defendant is a retired teacher who was born in the year 1939. In August of 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 P.P. 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. O’Ceallaigh. The latter is described in the plaintiff’s submissions as “the de facto manager of the school.”

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, the judge found.

It would appear that there was considerable local concern about the first-named defendant’s behaviour leading to the parent of another child approaching Fr. O’Ceallaigh. In September of 1973 the first-named 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.

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”.

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 of 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.”

The plaintiff was subsequently referred for counselling.

In the meantime, in June 1998, the first-named defendant was convicted on a plea of guilty to twenty-one 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-named defendant had done to her”. She was subsequently referred for a psychiatric assessment/counselling. The difficulties referred to were of a marital nature.
According to the plaintiff’s account, she was concerned that the first-named 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 appellant 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.

On the 27th October, 1998, the appellant 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-named defendant, the perpetrator of the abuse. On the 24th October, 2006, damages were assessed against him in the total sum of €305,104.00 made up as follows:
(a) General damages - €200,000.00,
(b) Aggravated damages - €50,000.00,
(c) Exemplary damages - €50,000.00,
(d) Special damages - €5,104.00.
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-named 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-named defendant but also in relation to the curate Fr. O’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. O’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-named defendant, the Minister, had adopted and the steps put in place to discharge those responsibilities.”


On the 9th March, 2004, the learned 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. The plaintiff’s appeal is against this judgment and order.

Parties not sued.
It is notable that although the plaintiff has sued the actual perpetrator of the abuse, the first-named defendant, and the State defendants listed above - the Minister, Ireland and the Attorney General - 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. O’Ceallaigh or their respective estates or successors.

Legal standing of National Schools.
The history of national education in Ireland goes back to 1833 when the system was established by direct executive action. Subsequently 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.

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.

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.

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:
          “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.”

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 thirty 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 vis-à-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)

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:
“Article 42
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 1º The State shall 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.

2º 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.”


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 sub-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.

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 one hand. 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”).

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 “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.
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.
The only pre-independence and pre-constitution case which I consider it important to cite is that of Fox v. Higgins 46 I.L.T.R. 222. This was a judgment of Mr. Justice Gibson 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. Mr. Justice Gibson 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.

In McEneaney v. Minister for Education [1941] 1 I.R. 430 at pp. 438 to 439, Murnaghan J. in this Court, in a judgment which was concurred 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)

The judgment refers to the passage quoted above from Fox v. Higgins with approval and continues:-
          “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 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.” (Emphasis added)

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 Eireann) 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 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)

I respectfully agree with the foregoing dicta of Murnaghan J. and Kenny J. in this Court or its predecessor.

Vicarious liability.
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-named defendant, but also for the alleged negligence of the curate Fr. O’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.

The principles of vicarious liability are stated as follows in chapter 43 of the Law of Torts by McMahon and Binchy, 3rd Edition, (Dublin, 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’.”

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.”

In the following paragraph of their text book, McMahon and Binchy go on to endorse what they see as a new and more acceptable theory of vicarious liability, by comparison with an older and (to them) less satisfactory one in the following words:-
          “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’.”

I do not feel the unqualified enthusiasm which the learned 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.

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 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.

In any event, the learned authors of the work cited go on to quote with unqualified enthusiasm the majority judgment in this Court in Moynihan v. Moynihan [1975] 1 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)

Moynihan’s case 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.

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:-
          “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.”

It may be noted that the plaintiff in Moynihan 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.

But even on the basis of the regime mandated by Moynihan, 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.”

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 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)


I wish to emphasise that we have not been invited to overrule Moynihan v. Moynihan and no argument to that effect was addressed to us on the hearing of this appeal. But the contrasting approaches of Walsh J. and Henchy J. in that case expresses and illustrates 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 macro-economic 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.

Moynihan v. Moynihan was, however, a one-off action by a child against her grandmother with no obvious or immediately direct social or macro-economic 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 compensated by the State, through the Criminal Injuries Compensation Tribunal, but the plaintiff is dissatisfied with the amount of such compensation.

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 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.


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 for playground accidents, children would not be allowed to run or play in school yards.

Control.
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-named defendant sufficient to make the Minister, and thereby the public purse, liable for his (Hickey’s) crimes and torts.

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.

For many years the common law world applied the test for vicarious liability taken from Salmond and Heuston’s work on torts in Salmond and Heuston on the Law of Torts (19th Edition., 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:-
          “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 Specific Railway Company v. Lockhart, [1942] A.C. 591 at 599.”

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.
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 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.”

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.”

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.

On the same page the learned 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)

This proposition is aptly illustrated in a case cited by Mr. Justice Fennelly 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.”

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 Company [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 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.”

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 authorized the act. It is true that he has not authorized 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)

I think it is extremely important to understand the precise limitations of these decisions, and another to be discussed below. In the Lloyd case, 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”.
In the Barwick case, the bank had been requested by a supplier of goods to one of its customers to give a guarantee in relation to the customers 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 nonsuited. 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 authorized the particular act, but he has put the agent in his place to do that class of acts ...”. (Emphasis added).

There is simply no question of the defendants or any of them in the present case as having put Hickey 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 their 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.

In the Irish case of Johnson & Johnson(Ireland) 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] 1Q.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 at p. 725 that the defendant’s liability was thought by Denning M.R. to arise from the act of bailment:-
          “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.”

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 and Johnson (Ireland) Ltd. 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 non-delegable 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 case because the plaintiff’s surviving claim is wholly based on vicarious liability.

In my view passages such as the following illustrate the true basis of the decision in Morris v. C. W. Martin & Sons Ltd. The first is that cited above, Lord Denning, cited above.

At p.737 Diplock L.J. whose review of the preceding cases and whose departure from Cheshire v. Bailey was the most strongly expressed, said:-
          “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.”

Salmon L.J. actually adopted the words of Willes J. in Barwick, cited above, and said at p.740 that the defendants had “… put the agent in [their] 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.”

It therefore appears to me that the act of bailment is not merely a feature of Morris v. C. W. Martin & Sons Ltd, but was the decisive feature in the decision of the Court of Appeal.

Moreover, it appears to have been this aspect which influenced Egan J. in the Irish case referred to, Johnson & Johnson (Ireland) Ltd. v. C. P. Security Ltd. 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 plaintfiff’s property”.(Emphasis added)

I am therefore of the view 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 clerks case, or (b) a bailment or something appearing to the judge to be analogous to bailment as in the Irish case.
Accordingly it seems to me that the State defendants cannot be liable for the first-named defendants’ 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 judgement about either of these two individuals. Moreover, it seems to have been instinctively recognised by the parents who complained about the first-named defendant that those 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 plaintiff in another school in the vicinity.

All these factors tending to distance the Minister and the State authorities from the management of the school and the control of the first-named 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.

It must also be considered that there are limits in practise 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 the Crowley case, cited above: 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-named defendant as to his activities, about which in any event he had no knowledge: no one told him.

Equally, I could not hold, on established principles, that the act of sexually abusing a pupil was within the scope of the first-named 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.

I am fortified in these conclusions by the judgment of O’Higgins J. in Delahunty v. South Eastern Health Board and Ors. There, the learned 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 learned 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”.

Very relevantly, O’Higgins J. also held at p. 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 [i.e. the Minister].”

This judgment, delivered more than 5 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.

In The Health Board v. B.C. and the Labour Court, (unreported, High Court, Costello J., 19th January, 1994) 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. (as he then was) set aside the award. In doing so he had this to say (at p.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.”

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-named defendant. I would therefore dismiss the appeal. But it is 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.

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.
    In order to circumvent the very obvious difficulties created by the state of the law as summarised above, the appellant 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 appellant’s view is that “the position in Ireland is unclear” (plaintiff’s submissions at p.105). 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.
    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 unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”

    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.”

    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 appellant 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.
    In Bazley, 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 judgments. In Bazley itself, 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 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”.

    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.

    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.

    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 learned 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.

    The judgment in Jacobi v. Griffiths was delivered in the Supreme Court of Canada on the same day as Bazley. 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 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, 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 that the Club therefore assumed responsibility, especially given that it was dealing with disadvantaged children. The test, which was met in Bazley and not met in Jacobi is widely referred to as the “strong connection test”.

    In Lister v. Hesley Hall Ltd. [2002] 1 AC 215 the House of Lords considered the same sort of issues. The facts of the case will be referred to below. However, the appellant 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)

    In Lister, 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 paragraph 35, seems to doubt that there is, or ever has been, any clear logical or legal principle underlying vicarious liability:
            “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.”

    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 proper view of his rights or liabilities. This would be a 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.”

    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 174 DLR (4th) 45 and Jacobi v. Griffiths 174 DLR (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.

    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, which the House of Lords reversed in Lister) or from the methods usually employed by the common law.

    Lister’s case 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.

    The most rigorous of the speeches in the House of Lords seems to me that of Lord Hobhouse of Woodborough, reported at [2002] 1 A.C. 220 at p.238 789. 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:
            “The employers are liable for the employees 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 (at p.239)”

    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.

    These and other difficulties with this case have led the learned authors of the tort section of the All E.R. Rev. [2001] Mr. Mullis and Mr. Nolan, to go so far as to say at para. 29-30 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 Salmond test provided more guidance than the close connection test adopted in Lister … 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.

    The ratio decedendi of the House of Lords in Lister 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 learned 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.

    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.”

    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 LJ. with which, in so far as it is relevant, I agree:
            “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 employer vicariously liable for that failure when the employer was not vicariously liable for the wrongful conduct itself.”
    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 and Jacobi. 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.

    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:
            “Is the act complained of a wrongful and unauthorised mode of doing some act authorised by the master”.

    Lord Steyn then goes on to quote, from the first edition (1907) of Salmond on Torts at pp. 83-84passage 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)

    He goes on to say 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 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.

    Lord Steyn then goes on to consider cases such 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 enquiring 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”

    Lord Steyn then emphasised the connection between the authorised acts and the improper modes of doing them and stated that “In 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.”

    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 All E.R. 97 - 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 in the All England Law Reports at p. 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”.

    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 LJ. 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 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 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 to the case of Rose v. Plenty, discussed above, 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”.

    The majority in Rose v. Plenty 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 Hickey did here. In any event, Hickey’s actions in this case were not done in the time of the Minister, or on his premises or while Hickey “was also busy caring for the children”, whatever that may mean.

    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 it possible, at least briefly, to achieve.

    The High Court of Australia decided three cases on the 6th February, 2003, New South Wales v. Lapore and Another; Samin v. Queensland and Others and Rich v. Queensland and Others [2003] H.C.A. 4; 212 C.L.R. 511; 195 A.L.R. 412; 77; A.L.J.R. 558.

    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/appellant 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.

    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 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.

    In Lord Steyn’s speech in Lister, he overrules the earlier case of Trotman 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 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 UK, American, Canadian and New Zealand decisions. These recent decisions have themselves overruled cases, like Trotman, 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 the cases of Bazley and Jacobi.

    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. 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.

    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 Salmonds 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 providing for primary education. The fact that there have been notorious cases of sex 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.

    Nor do I consider that the test set out in the Lister case 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.
    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 general separation of powers principles as outlined in my judgments in the Sinnott v. Minister for Education 2 I.R. 545 and T.D. v. Minister for Education [2001] 4 I.R. 259 cases, and out of respect for the legislatures 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.

    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 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 firs edition of McMahon and Binchy, Law of Torts, on the role of fault in tort.

    (2) It would immediately raise the fundamentally 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 enormously extend 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 learned 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 workers 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.
    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 absence of direct control over the first-named defendant, (because such control had long since been ceded to the Manager and the Patron), prevents a finding against him. The first-named 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.

    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 organizations 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 organizations 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 learned judge referred to authorities and continued] childrens recreation is not a field that offers monetary profits as an incentive to volunteers to soldier on despite the risk of personal financial liability.”

    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.

    It follows from the foregoing that I would not find the Minister or other State defendants vicariously liable in respect either of the first-named defendant nor of Fr. O’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 Minister and he did not inform the Minister of any difficulties with, or complaints about, the first-named 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.

    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-named 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.

    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.

    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 Judge Kenny pointed out in Crowley v. Ireland cited above, 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.

    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.

    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, 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.

    I would dismiss the appeal.













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