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Cite as: [2009] 2 IR 302, [2008] IESC 72, [2009] 1 ILRM 490

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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: 19 December 2008

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.

Judgment by: Hardiman J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Hardiman J.	Appeal dismissed - affirm High Court Order	Murray C.J.
Fennelly J.		Murray C.J., Denham J.
Geoghegan J.

Outcome: Dismiss

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

“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] AC 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 KB 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 [2003] IEHC 132 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 ST v. North Yorkshire County Council [1999] LGR 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 [1999] 174 D.L.R. (4th) 71 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 [1999] 174 D.L.R. (4th) 71. These are strong adjectives indeed to apply to the latter case where the Court divided four to three on whether its own “close and direct connection” test had or had not been met.

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 ST, 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 AC 215 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 ER 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 ST 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 ST, 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 IR 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) 71 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.

JUDGMENT of Mr. Justice Fennelly delivered the 19th day of December, 2008

1. This appeal concerns legal liability for sexual abuse of children. The calamity of the exploitation of authority over children so to abuse them sexually has shaken society to its foundations. Cases of sexual abuse have preoccupied our criminal courts and this Court for many years. It is surprising that here for the first time this Court is confronted with questions relating to the liability of institutions, extending to the State itself, for sexual abuse perpetrated, as in this case, on schoolchildren in a national school, by a teacher. On the other hand, counsel have cited a number of authorities from other common-law jurisdictions to whose decisions we normally accord considerable respect.

2. The appeal is an attempt to develop traditional common law principles of vicarious liability for tortious acts in the very particular setting of the relationship between the State, on the one hand, and the managers of and teachers in national schools on the other. The appeal is from a judgment of de Valera J in the High Court. The learned judge dismissed the appellant’s claim for damages against the Minister for Education and Science, Ireland and the Attorney General, though the plaintiff secured an award of damages by default against the teacher who perpetrated the abuse.

The facts

3. The appellant was born in 1964. She was a pupil in Dunderrow National School, a mixed two-teacher school, at Kinsale, Co Cork, where the first-named defendant (“Mr Hickey”) was Principal. In 1973, when the appellant was eight years of age, Mr Hickey, at the request of the appellant’s mother, gave her individual music lessons (how to play the melodica). These music lessons took place in Mr Hickey’s classroom either during the play-break or in the afternoons after school. He used these occasions to perpetrate sexual abuse on the appellant. Commencing with the second music lesson, Mr Hickey gradually progressed from rubbing the appellant’s tummy outside her clothes to the point in about the fifth music lesson where he engaged in digital genital abuse of her. That digital genital abuse took place over the remainder of the lessons until the summer holidays of 1973.

4. Dunderrow was a Catholic school in the diocese of Cork and Ross. Its manager was Canon Stritch, who, according to the evidence, was then elderly and infirm. He died in 1975. Sometime in 1971, the mother of another child at the school complained to one Fr O’Ceallaigh that her daughter had suffered some form of sexual abuse at the hands of Mr Hickey. Fr O’Ceallaigh was said to have attended at the school, apparently in the absence of the manager. The appellant claims that he was de facto manager.

5. Some time in 1973 a number of other complaints of abuse by Mr Hickey of other children at the school came to light. Following a meeting of parents chaired by Fr O’Ceallaigh, Mr Hickey went on sick leave. On 14th January 1974, Fr O’Ceallaigh wrote to the Department of Education, on behalf of Canon Stritch, stating that Mr Hickey had given notice of his resignation from his post effective from 31st January 1974 and naming the teacher whom he planned to appoint to Mr Hickey’s post.

It does not appear that the Department was informed of the complaints against Mr Hickey.

6. Many years later a criminal prosecution was brought against Mr Hickey. In June 1998, he pleaded guilty to 21 sample charges out of a total of 386 relating to sexual abuse of twenty one girls who had been in his care at Dunderrow School.

7. The present civil proceedings were commenced on 29th September 1998. The plaintiff claims damages for sexual assaults committed on her between January and “the summer holidays” of 1973. The plaintiff obtained judgment by default against Mr Hickey, who has taken no part in the proceedings.

8. The action against the other defendants was heard from 2nd to 12th March 2004. For convenience, I will describe those defendants as the State. The appellant’s claim is that the State is vicariously liable for the sexual assaults perpetrated on her by Mr Hickey. The statement of claim also alleges that the State was negligent, as distinct from being vicariously liable, in a number of respects in relation to the recognition, examination and supervision of the school and in failing to put in place appropriate measures and procedures to detect and prevent sexual abuse by Mr Hickey.

9. De Valera J rejected two arguments in defence advanced by the State: he held that the appellant’s claim was not statute barred and that it should not be defeated on the grounds of excessive delay. The learned judge also ruled, at the conclusion of the plaintiff’s case, that the State had no case to answer in respect of the allegations of negligence (other than on the basis of vicarious liability). There is no appeal against any of these rulings.

10. On 20th January 2006, de Valera J delivered judgment dismissing the claim of the appellant. He held that the State was not vicariously liable for the acts of sexual abuse committed by Mr Hickey against the appellant.

11. The appeal is limited to the issue of vicarious liability. The appellant included, under that heading, a complaint that the learned trail judge failed to deal with the plaintiff’s complaint that the second-named defendant was vicariously liable for the failure of the school manager to act on a complaint of earlier acts of sexual abuse. This is a reference to the complaint of a mother of a different child made to Fr O’Ceallaigh in 1971. This ground of appeal has not been pursued, though I will refer to it briefly later in this judgment.

12. The only issue on the appeal is whether the State is vicariously liable for the acts of Mr Hickey, who was, at all relevant times, a teacher employed and working in a national school under the management of the local Catholic priest.

National schools

13. De Valera J summarised the factual relationship between the State and national schools in Ireland very succinctly as follows:

“The selection and appointment of any person as a teacher was a prerogative of the manager as was such a teacher’s appointment as principal. It was the function of the Department of Education (and hence the Minister) to pay the salary of such teachers and to ensure that they had the necessary qualifications. The Department also exercised a supervisory role in the overseeing of teacher’s activities in the school. Mr. McG.,

[

McGleannain]

in his evidence, stated in general terms “the manager was the direct governor of the school” and I accept this as being the situation.”

14. The learned trial judge applied the reasoning of O’Higgins J in Delahunty v. South Eastern Health Board and Others (High Court [2003] IEHC 132, 30th July 2003). He noted that the ownership of the school was vested in the Roman Catholic Diocese, which stood in a similar position in relation to the school to that of the religious order in the Delahunty case to the industrial school. The State funded salaries in a similar manner in both institutions and the requirements imposed on the Department in relation to inspection were more onerous in respect of the industrial school than national schools and Dunderrow in particular.

15. The High Court had the benefit of the evidence of Professor John Coolahan, formerly of the National University of Ireland at Maynooth, a leading expert in the history of education in Ireland and author of “Irish Education; History and Structure.” Professor Coolahan explained that history in a way which is highly relevant to the present appeal. Hardiman J has related that history in detail in his judgment. I will give a brief outline.

16. I will commence with a famous letter of October 1831, the “Stanley letter,” written by Lord Stanley, Chief Secretary for Ireland, which is the foundation document of the national school system. A new Board of Commissioners of National Education was to be the agency through which resources would be deployed to the schools. It was fundamental, according to Professor Coolahan, that there was not to be a state system of schools, other than in the case of a small number of “model” schools. There was to be a state-supported system. Schools would be independent but could obtain state support, provided that they agreed to abide by regulations drawn up by the Board.

17. The different religious denominations were determined to preserve and guard their independence and their own distinct religious education. Although the Board had wished to promote a concept of mixed education, the national schools developed into a predominantly denominational system in terms of managers, pupils and teachers. A school was owned by a patron (in the case of Catholic schools usually the bishop) who appointed the manager. The manager had day-to-day responsibility.

18. The division of power was very clear. The Commissioners laid down regulations for control of the curriculum and such matters as textbooks and teacher training. On the other hand the appointment and dismissal of teachers was the prerogative of the manager, who was almost always a clergyman and hence responsible for the “moral probity” of the school. The manager also had responsibility under regulations for the maintenance and upkeep of the school.

19. Neither national independence nor the Constitution of 1937 led to any essential change to this structure, which, at the date of the events with which this case is concerned, had endured for more than one hundred and forty years. Following independence, there was, of course, greater emphasis on nationalism, and on Irish language and culture. But there was little or no change in the system. In the case of Catholic schools, in particular, there were Catholic managers, Catholic teachers and Catholic children. The constitutional obligation of the State to “provide for” free primary education tended to emphasise the original objective of State support for, as distinct from direct State provision of education. Hardiman J has cited tellingly in the judgment he has delivered today from a number of relevant judicial decisions. Kenny J stated, in his judgment in Crowley and Ors. v. Ireland and Ors. [1980] IR 102 at 126:

“That historical experience was one of the State providing financial assistance and prescribing courses to be followed at schools; but the teachers, though paid by the State were not employed by and could not be removed by it: this was the function of the manager of the school who was almost always a clergyman.”

20. In more recent times, changes have included the appointment in the case of almost all schools of boards of management to include representatives of parents and teachers. State financial provision has greatly increased. The state now pays the teachers directly. The State prescribes the qualifications of teachers.

21. Inspection of schools has always formed a crucially important part of the system of State oversight and maintenance of standards. It enables the Minister to be satisfied about the quality of the system. Schools are regularly inspected by department-appointed inspectors who are assigned to particular areas and schools. The inspector would report generally to the Department on the efficiency of the school in all its aspects. This would extend to informing the manager of weaknesses or problems. Geoghegan J, in his judgment delivered today, quotes extensively from the evidence of the experts regarding the inspection system.

22. The current Rules for National Schools continue the national school system as described by Professor Coolahan. Many matters are, to borrow from the language of Murnaghan J in his judgment in McEneaney v. Minister for Education [1941] IR 430 at 439, “minutely provided for in Rules and Regulations made by the Board [now the Minister].” These rules constitute a comprehensive system of regulation of almost all aspects of schools, including school buildings, hours and time-tables and the qualifications of teachers. They provide for the recognition of patrons. A patron may “may manage the school himself or may nominate a suitable person to act as manager.” Rule 15 provides:

“The manager of a national school is charged with the direct government of the school, the appointment of the teachers, subject to the Minister’s approval, their removal and the conducting of the necessary correspondence.”

23. Managers are “required to submit without delay all proposed changes of teachers to the Department for approval.”

24. Much importance was attached at the hearing of the appeal to Rule 108, which provides (in Part):

“Where the minister is satisfied that a teacher has conducted himself improperly, or has failed or refused to discharge his duties under the School Attendance Ac 1926……………………………………

the teacher is dealt with as the Minister may determine. Penal action including prosecution, withdrawal of recognition in the capacity in which the teacher is serving, or in any capacity as a teacher, withdrawal or reduction of salary, may be taken when in the opinion of the Minister such action appears warranted.”

25. In substance, the Rules follow the system of allocation of responsibility which has existed since 1831, even if, in modern times, the State plays a more intrusive role. Responsibility for day-to-day management and, in particular, the hiring and firing of teachers remains with the manager. In this latter respect, it is important to distinguish between, on the one hand, recognition and, on the other, employment of a teacher. A teacher may not be employed if his qualifications are not recognised by the Minister and, if the Minister withdraws recognition, he may be unemployable. Nonetheless, it is the manager and not the Minister who decides on which teacher to employ. The contract of employment is between the manager and the teacher. The manager may dismiss a teacher without the sanction of the Minister.

Vicarious liability

26. In order to fix the State with responsibility for the criminal assaults committed upon her by Mr Hickey, the appellant invokes the principle of vicarious liability as it has been developed in the common law. Assuming Mr Hickey, as the principal teacher of a national school, to have been acting in the capacity of a servant or employee of the State, it is claimed that vicarious liability is sufficiently capacious to bring the claim home against the State. It will be necessary to test the assumption mentioned in the preceding sentence.

27. Firstly, however, I will discuss the principles which apply to vicarious liability for acts of the sort at issue in this case.

28. The notion that a person should be made responsible to an injured party for the effects of acts he has expressly or impliedly authorised provides the original basis for vicarious liability. Over time, the master’s liability for his servant’s acts ceased to be based on any assumption that he had authorised the wrongdoing. It sufficed if the servant had been acting in the course of his employment. Courts have on occasion explained the principle in terms of the Latin maxims, respondeat superior and qui facit per alium facit per se. These have been criticised as unhelpful (see Salmond on Torts, Fourteenth Edition, R.F.V. Heuston, Sweet & Maxwell, London 1965, page 644 for a selection of comments). Nonetheless, they are, to my mind, useful brief statements. They enshrine the notions of responsibility—respondeat--of a principal for the acts of an agent and action carried out on behalf of another. A person in authority may be answerable for the acts of his servant.

29. Lord Brougham explained the matter (in Duncan v Finlater) (1839) 6 Cl & F 894 at 910:

“The reason that I am liable is this, that by employing him I set the whole thing in motion; and what he does, being done for my benefit and under my direction, I am responsible for the consequences of doing it.”

30. The law, as it developed, dispensed with the need for either benefit to or direction by the master. On the other hand, Lord Brougham’s dictum contains an element of the idea of “enterprise liability” upon which the appellant places such store, relying on the decision of the Supreme Court of Canada in Bazley v. Curry [1999] 2 SCR 534, 1999 Can LII 692 (S.C.C.).

31. The essentials of the principle, as understood in the very early twentieth century, were expressed in a much quoted and discussed passage from the first edition of Salmond (Salmond, Law of Torts, 1st ed (1907), p 83):

"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.

"But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them."

32. It is the second part, (2), of the Salmond test, concerning an “unauthorised mode of doing some act authorised by the master,” which is material for present purposes. At the same time, the time-honoured Salmond passage puts forward the notion of “connected” acts. However, the cases show that what acts were performed in the course of a servant’s employment could, on occasion, be interpreted quite narrowly.A test based on “connection,” as suggested by Salmond, has, more recently, been treated as central by both the Canadian Supreme Court in Bazley and the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215.

33. Before considering these two very important cases, however, it is essential to note two points which are by now very well established in the case law. Firstly, a master may, in principle, be made liable even for criminal acts which he has not expressly authorised, provided the acts were committed in the course of the servant’s employment. Secondly, the master may, in certain circumstances, even be responsible for acts which he has expressly prohibited. Everything depends on the circumstances.

34. The first of these propositions can be traced back to the beginning of the twentieth century. In Cheshire v Bailey [1905] 1 KB 237, a silversmith hired a brougham and coachman from the defendant to show his wares to potential customers around London. The coachman, the employee of the defendant, helped confederates to steal the samples. The Court of Appeal rejected the claim for damages against the defendant. Collins MR held (at page 241) that the “the crime committed by the driver…… was clearly outside the scope of his employment,…” He ruled:

35. That dictum acts on the premise of strict logic. The act of theft was not authorised by the master and could not be considered to be within the scope of the authority conferred on the servant. I venture to suggest that no court would so decide today. The notion that I suffer the loss of my property which I have confided to a trader whose servant steals, with no recourse to the master, would offend both justice and commonsense.

36. The decision of the House of Lords in Lloyd v Grace Smith & Co [1912] AC 716 placed a different complexion on the matter. A widow, a client of a firm of solicitors, was defrauded by the managing clerk of the firm. The clerk fraudulently induced her to execute deeds transferring title in two cottages to himself and he then sold them for his own benefit. The Law Lords were unanimously of the view that the clerk had been acting within the course of his employment by the solicitor. The case is, in addition, clear authority for the proposition that the liability of the principal is not dependant on the principal having received any benefit from his servant or agent’s wrongdoing. Lord Shaw, at page 740, addressed the doubts that had been raised in that and other cases about the fact that the principal, a respected solicitor, was innocent of any involvement in the fraud as follows:

37. Cheshire v Bailey was cited in argument befor the House but not expressly overruled. In the course of his speech, Lord Macnaghten cited a passage from the judgment of Willes J in Barwick v. English Joint Stock Bank L.R. 2 Ex 259, which has been treated as authoritative before and since:

"In all these cases it may be said, as it was said here, that the master had not authorized the act. It is true 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."

38. In Johnson & Johnson v C.P. Security [1986] I.L.R.M. 560 Egan J, in the High Court, awarded damages to the plaintiff against the defendant, a company providing specialist protection, when their own security officer facilitated thefts from premises he was supposed to be guarding. Egan J considered that Cheshire v Bailey was no longer good law in England. He referred to Lloyd v Grace Smith & Co and also cited Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716., where a company which had accepted a fur stole for cleaning, was held liable to the owner when one of its employees stole the item. While the judgments in the latter case turn very much on the law regarding bailments, it is notable that Lord Denning regarded the law as having been “revolutionised” by the House of Lords in Lloyd v Grace Smith & Co which Diplock LJ, in his judgment, described as a “landmark in this branch of the law.”

39. It is, therefore, a recurring theme that the vicarious liability of the master is explicable by reference to the fact that the master has put the servant in place to carry on a particular activity. It is not necessary that the master have authorised the particular act complained of and he need not have derived benefit from it. In Imperial Chemical Industries v Shatwell [1965] 1 AC 685, Lord Pearce stated:

“The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it.”

40. The second point which has been established in the cases is that an employer is not necessarily (necessarily being the key word) protected against liability merely because he has prohibited his employee from carrying out his work in a particular way. In Canadian Pacific Railway v. Lockhart [1942] AC 591, an employee drove his own uninsured motor car for the purposes of his work, in contravention of express orders to the contrary. However, his driving of the car was incidental to work which he was employed to do. (see also Limpus v London General Omnibus Co ((1862) 1 H & C 526). In Williams v A & W Hemphill Ltd 1966 SC(HL) 31, a lorry driver deviated substantially from his route contrary to instructions. An accident occurred on the detour due to the negligence of the driver. Lord Pearce on behalf of a unanimous House of Lords assessed the issue of vicarious liability by balancing the extent of the deviation against the connection with the work of the employer as follows, at p 46:

“Had the driver in the present case been driving a lorry which was empty or contained nothing of real importance, I think that so substantial a deviation might well have constituted a frolic of his own. The presence of passengers, however, whom the servant is charged qua servant to drive to their ultimate destination makes it impossible (at all events, provided that they are not all parties to the plans for deviation) to say that the deviation is entirely for the servant's purposes. Their presence and transport is a dominant purpose of the authorised journey, and, although they are transported deviously, continues to play an essential part. It was said in argument that there must be some limits to that contention and that one could not hold that, if the driver had gone to Inverness, he would still be acting on his master's business. No doubt there are such limits to the argument as common sense may set on the facts of each case. But when there are passengers whom the servants on his master's behalf has taken aboard for transport to Glasgow, their transport and safety does not cease at a certain stage of the journey to be the master's business, or part of his enterprise, merely because the servant has for his own purposes chosen some route which is contrary to his instructions.

"The more dominant are the current obligations of the master's business in connection with the lorry, the less weight is to be attached to disobedient navigational extravagances of the servant. In weighing up, therefore, the question of degree, whether the admittedly substantial deviation of the vehicle with its passengers and baggage was such as to make the lorry's progress a frolic of the servant unconnected with or in substitution for the master's business, the presence of the passengers is a decisive factor against regarding it as a mere frolic of the servant. In the present case the defenders remained liable, in spite of the deviation, for their driver's negligence."

41. I pause at this point before considering the more recent authorities, to take stock of the ordinary rule concerning vicarious liability for the illegal acts of an employee. The second leg of the Salmond test has served the law well. It asks whether the act complained of is an unauthorised mode, adopted by the servant, of performing the work of the employer. Strict logic might suggest that fraud on the client (as in Lloyd v Grace Smith) or theft of the customer’s goods (as in Morris v C.W. Martin & Sons Ltd) could not be so considered. The law adopts a solution which is not strictly logical in this sense. Clearly theft of the customer’s property is not, in the ordinary sense, a mode of performing a service for that customer. The law asks, however, whether the act of the servant is “closely connected” to the employer’s work. It says that, where two parties (the cheated customer and the employer of the dishonest servant) are innocent, it is just, when assessing whether the servant was acting within the scope of his employment, that the employer, who employed the dishonest servant, rather than the customer should bear the loss.

42. The decision of the Supreme Court of Canada in Bazley v Curry 174 DLR 45, delivered in June 1999, represents a significant development in this branch of the law. It raises directly the issue of liability for acts of sexual abuse committed by an employee. The case involved a non-profit organisation, which operated two residential care facilities for the care of emotionally disturbed children. The foundation authorised its employees to act as parent figures for the children. They were to do everything a parent would do, from general supervision to intimate duties like bathing the children and putting them to bed. The foundation had unwittingly employed a paedophile. He sexually abused one of the children. The abused child sued the foundation. The claim was based, not on any negligence in hiring the employee, but on vicarious liability. The Supreme Court of Canada upheld a finding by a lower court in favour of the plaintiff.

43. McLachlin J took the Salmond test as her starting point. She then engaged in a critique of the utility of the test. She considered that, in the absence of clear precedent, the courts should turn to policy for guidance. She adopted a two-stage approach to the second branch of the Salmond test:

“First, a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of broader policy rationales behind strict liability.”

44. She conducted a critical review of a number of the authorities, seeking to discern some underlying logic or unifying principle. For example, she speculated as to whether sexual torts are closer to physical assaults or, as she seemed to suggest, to financial dishonesty (because of its “trust-abusing” character). She criticised the Court of Appeal in England (in S.T. v North Yorkshire County Council [1999] IRLR 98) for engaging in semantics. The first-instance judge in Bazley itself had found for the plaintiff on the basis of the second leg of the Salmond test. He said:

“If a postal clerk’s theft and a solicitor’s clerk’s fraud can be said to have been committed in the course of their employment, I can see no sound basis in principle on which it can be concluded that Curry’s criminal conduct should not attract vicarious liability.”

45. McLachlin J then concluded that precedent did not resolve the issue, though the passage just quoted suggests that only an “unambiguous” precedent could satisfy the question she had posed for herself. It seems to me that it might well have been possible to decide for the plaintiff, as the first-instance judge had done, in reliance on the second part of the Salmond test. There was a close connection between the abusing acts and the work which the employees was required to perform. That approach accords more with the normal common-law method of incremental development of law based on precedent, resorting, where appropriate to analogy and distinction and applying commonsense of the sort described by Lord Pearce in the passage quoted at paragraph 39 above. McLachlin J considered that she must proceed to the second stage and inquire into “policy reasons for vicarious liability, in the hope of discerning a principle to guide courts in future cases.”

46. The learned judge proceeded to engage in a sophisticated analysis of the policy considerations which should underlie vicarious liability. The principal policy considerations were: “(1) provision of a just and practical remedy for the harm; and (2) deterrence of future harm.” In respect of the first, she referred to the employer being a “more promising source of compensation” and to the fact that the employer had created the enterprise which carries with it certain risks. Ultimately, and strikingly she came to the conclusion that:

“The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires.”

47. Finally, when applying the principles developed in her extensive review of policy considerations, she posed the question:

“The appropriate inquiry in a case such as this is whether the employees’ wrongful act was so closely connected to the employment relationship that the imposition of vicarious liability is justified in policy and principle.”

48. In the final analysis, it does not seem to me that the Supreme Court of Canada reached a result far removed from that attributed to the first-instance judge or which could have been derived from the existing case law based on the second part of the Salmond test, although, along the way, policy considerations played an important role. On the whole the named policy considerations all seemed to weigh in favour of an award to the plaintiff.

49. The central question before the House of Lords in Lister was succinctly summarised by Lord Steyn as being whether “as a matter of legal principle the employers of a warden of a school boarding house, who sexually abused boys in his care, may depending on the particular circumstances be vicariously liable for the torts of their employee.” (emphasis added). The claimants were residents in a boarding house attached to a school owned and managed by the defendants. The headnote to the report summarises the unanimous decision of the House as follows:

“…that having regard to the circumstances of the warden’s employment, including close contact with the pupils and the inherent risks that it involved, there was a sufficient connection between the work that he had been employed to do and the acts of abuse that he had committed within the scope of his employment and the defendants should be held vicarious liable for them.”

50. Lord Steyn regarded the decision of the Supreme Court of Canada in Bazley as having established a principle of “close connection.” While tributes are paid to the great advance wrought by Bazley, the House of Lords laid more emphasis, as I would, on justice, precedent and practicality. Lord Steyn, in particular, at page 223, took the Salmond test as having been adopted by English judges for nearly a century. He thought it was the “germ of the close connection test adumbrated by the Canadian Supreme Court…” He continued, at page 224:

“A preoccupation with conceptualistic reasoning may lead to the absurd conclusion that there can only be vicarious liability if the bank carries on business in defrauding its customers. Ideas divorced from reality have never held much attraction for judges steeped in the tradition that their task is to deliver principled but practical justice. How the courts set the law on a sensible course is a matter to which I now turn.”

51. Lord Steyn reviewed authorities, including Lloyd v Grace Smith & Co, which was a “breakthrough,” before emphasising the need for “an intense focus on the connection between the nature of the employment and the tort of the employee…” Lord Steyn’s concluded that vicarious liability existed in the case before the House as follows:

“Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.”

52. Lord Clyde also sought a “close connection” to establish vicarious liability and thought that, “in considering the scope of the employment a broad approach should be adopted…” In that way, (see page 234) an act “may be seen to be incidental to and within the scope of [the] employment.”

“If a broad approach is adopted it becomes inappropriate to concentrate too closely upon the particular act complained of. Not only do the purpose and the nature of the act have to be considered but the context and the circumstances in which it occurred have to be taken into account.”

53. Some greater connection than mere opportunity is needed, though one kind of employment situation is “where the employer has been entrusted with the safekeeping or the care of some thing or some person and he delegates that duty to an employee.” In such cases, “it may not be difficult to demonstrate a sufficient connection between the act of the employee, however wrong it may be, and the employment.” In particular, Lord Clyde stated at page 236:

“Cases which concern sexual harassment or sexual abuse committed by an employee should be approached in the same way as any other case where questions of vicarious liability arises. I can see no reason for putting them into any special category of their own.”

54. The decisions in Bazley and Lister constitute a development of the common law of vicarious liability. Those authorities would enable liability to be imposed, depending on the facts of the individual case, on employers for wrongful criminal acts of employees and thus for acts going beyond any theory of authority or of a merely wrongful mode of doing the employer’s work. While Bazley explores policy considerations, Lister clings to the incremental tradition of the common law. The test is to be the closeness of the connection between the abuse and the work which the employee was engaged to carry out. Lord Clyde said at page 237:

“In addition to the opportunity which access gave him, his position as warden and the close contact with the boys which that work involved created a sufficient connection between the acts of abuse which he committed and the work which he had been employed to do. It appears that the respondents gave the warden a quite general authority in the supervision and running of the house as well as some particular responsibilities. His general duty was to look after and to care for, among others, the appellants. That function was one which the respondents had delegated to him. That he performed that function in a way which was an abuse of his position and an abnegation of his duty does not sever the connection with his employment. The particular acts which he carried out upon the boys have to be viewed not in isolation but in the context and the circumstances in which they occurred.”

55. Lord Millett’s conclusion, at page 250, on the same issue is also important:

“In the present case the warden's duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that in itself is not enough to make the school liable. The same would be true of the groundsman or the school porter. But there was far more to it than that. The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school's responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys.”

56. The theoretical underpinnings of the doctrine of vicarious liability are much debated but no clear conclusion emerges. The result is that strict liability is imposed on an employer regardless of personal fault, which is especially striking when the acts are criminal and could not conceivably have been authorised even impliedly. Lord Steyn thought the imposition would be fair and just, if the necessary circumstances existed. Among the reasons suggested in the cases mentioned above is that the employer should bear the burden because he has “set the whole thing in motion” (Lord Brougham) or “has put the agent in his place…” (Willes J) or is“better able to make good any damage…” (Lord Pearce).

57. The High Court of Australia considered both Bazley and Lister in New South Wales v Lepore [2003] HCA 4; 212 CLR 511; 195 ALR 412; 77 ALJR 558 (6 February 2003). Although that case was not cited in argument on the hearing of the present appeal, I think it appropriate to refer to it as evidence of convergence of view between the final courts of important common law jurisdictions. Gleeson C.J., having referred to Bazley and Lister, stated that he did not accept that they showed that “in most cases where a teacher has sexually abused a pupil, the wrong will be found to have occurred within the scope of the teacher's employment.” He added (at paragraph 73 of the judgment):

“ However, they demonstrate that, in those jurisdictions, as in Australia, one cannot dismiss the possibility of a school authority's vicarious liability for sexual abuse merely by pointing out that it constitutes serious misconduct on the part of a teacher

”

58. He then commented further, at paragraphs 74 and 75, on the issues that would arise:

74. One reason for the dismissiveness with which the possibility of vicarious liability in a case of sexual abuse is often treated is that sexual contact between a teacher and a pupil is usually so foreign to what a teacher is employed to do, so peculiarly for the gratification of the teacher, and so obviously a form of misconduct, that it is almost intuitively classified as a personal and independent act rather than an act in the course of employment. Yet it has long been accepted that some forms of intentional criminal wrongdoing may be within the scope of legitimate employment. Larceny, fraud and physical violence, even where they are plainly in breach of the express or implied terms of employment, and inimical to the purpose of that employment, may amount to conduct in the course of employment.

75. If there is sufficient connection between what a particular teacher is employed to do, and sexual misconduct, for such misconduct fairly to be regarded as in the course of the teacher's employment, it must be because the nature of the teacher's responsibilities, and of the relationship with pupils created by those responsibilities, justifies that conclusion. It is not enough to say that teaching involves care. So it does; but it is necessary to be more precise about the nature and extent of care in question. Teaching may simply involve care for the academic development and progress of a student. In these circumstances, it may be that, as in John R, the school context provides a mere opportunity for the commission of an assault. However, where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment. The degree of power and intimacy in a teacher-student relationship must be assessed by reference to factors such as the age of students, their particular vulnerability if any, the tasks allocated to teachers, and the number of adults concurrently responsible for the care of students. Furthermore, the nature and circumstances of the sexual misconduct will usually be a material consideration.”

59. The last sentence of paragraph 74 places liability for acts of sexual abuse within the established common-law canon. Paragraph 75 explains that liability is by no means automatic.

60. Both Bazley and Lister were considered by O’Higgins J in the High Court in Delahunty v. South Eastern Health Board and Others, cited above. An attempt was made to fix liability on a religious order, which ran an orphanage, for a sexual assault perpetrated by a housemaster or, alternatively, on the Minister for Education and Science by virtue of the latter’s statutory responsibility. The facts were unusual. The plaintiff was not an inmate but a visitor to the orphanage. O’Higgins J held that that there was no such connection between the employment of the housemaster and the assault on the plaintiff as would justify the imposition of vicarious liability. He held that a fortiori the Minister could not be liable: the housemaster was not his employee and had no role in his hiring or firing. O’Higgins J appears, provisionally at least, to have accepted the authority of Bazley and Lister. I say “provisionally,” because O’Higgins J recalled that Costello J, in The Health Board v B.C. [1999] had said that he could not envisage any employment in which the vicarious liability would be engaged “in respect of a sexual assault could be regarded as so connected with it as to amount to an act within its scope.” That case is analysed the judgment of Hardiman J delivered today. The case did not concern common-law principles of liability but statutory provisions of the Employment Equality Act. In my view, the statement of Costello J has to be treated as obiter.

61. For the sake of completeness, I should mention that the issue of vicarious liability for damages arose in a very special and particular context in Shortt v The Commissioner of an Garda Síochána & ors [2007] IESC 9 . The defendants argued that the liability of the state for exemplary damages should be limited or modified where the primary liability was purely vicarious. Murray CJ held that there was no basis in law for limiting the liability of the State to pay exemplary or punitive damages by reason of the vicarious nature of its liability. The decision is of limited relevance in the present context. The primary liability of the State defendants arose from statute and was not an issue.

62. Ultimately, I am satisfied that it is appropriate to adopt a test based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made. That test, as the cases have shown, has enabled liability to be imposed on the solicitor’s clerk defrauding the client (Lloyd v Grace Smith & Co); the employee stealing the fur stole left in for cleaning (Morris v C.W. Martin & Sons Ltd) and the security officer facilitating thefts from the premises he was guarding (Johnson & Johnson v C.P. Security). In each of these cases, the action of the servant was the very antithesis of what he was supposed to be doing. But that action was closely connected with the employment. In Delahunty v South Eastern Health Board [2003] IEHC 132, O’Higgins, rightly in my view, held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.

63. The close-connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J provides an excellent example of practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley, the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.

64. In the present case, there is no claim against the manager or patron of the school. It is not, therefore, appropriate to decide whether vicarious liability should be imposed on the direct employer of the first-named defendant. In such a case, all the facts would have to be carefully considered or, to recall the words of Lord Steyn already quoted, there must be “an intense focus on the connection between the nature of the employment and the tort of the employee…” It may be relevant to consider whether it matters that the music lessons were not part of the ordinary school curriculum and were provided outside normal hours. Mr O’Driscoll Senior Counsel, on behalf of the second to fourth defendants referred to the residential setting of the abuse in both Bazley and Lister. Clearly, that may be a material factor. However, I express no concluded view.

65. The important question in the present appeal is whether liability can be imposed on the second to fourth-named defendants or on any of them, in other words, on the State. It is immediately necessary to note that, in each and every one of the cases on close connection, a direct employment relationship existed. The first-named defendant was not employed by the second-named defendant or by any of the other defendants. He was, in law, the employee of the manager, Canon Stritch. It is true that he was required to possess qualifications laid down by the second-named defendant and to observe the detailed and minute provisions of the Rules for National Schools. The State had disciplinary powers in relation to him pursuant to those Rules. However, the State did not have the power to dismiss him; nor was he originally engaged by the State. The scheme of the Rules and the consistent history of national schools is that the day-to-day running of the schools is in the hands of the manager. The inspection regime does not alter that. The department inspectors do not have power to direct teachers in the carrying out of their duties.

66. All of this is quite graphically confirmed by the facts of this case. It seems clear that no report was ever made to the second-named defendant or his Department of the complaints of sexual abuse against Mr Hickey, either the original single complaint made to Fr O’Ceallaigh in 1971 or the many complaints which surfaced in 1973. All that happened was that Fr O’Ceallaigh wrote a letter to the second-named defendant on behalf of Canon Stritch on 14th January 1974 informing him that the Mr Hickey had “given notice of his resignation…effective from Jan 31st 1974.” The same letter named the proposed replacemet teacher: Fr O’Ceallaigh said: “I plan to appoint…” All this further implies that the parents made their complaints, not to the second-named defendant, but to the manager, i.e., either Canon Stritch or, more likely, Fr O’Ceallaigh who was considered to be acting as de facto manager.

67. There was no employment relationship between Mr Hickey and the second-named defendant. Hardiman J discusses the principles concerning the degree of control over a person’s actions for the purposes of establishing vicarious liability. I prefer to express no opinion on the decision of this Court in Moynihan v. Moynihan [1975] IR 192, other than to observe that it is based on highly unusual facts. This Court was not asked, at the hearing of the appeal, to over-rule it. I cannot see that it establishes any precedent capable of being applied to the present case. On normal principles, the State has no vicarious liability for the acts of a teacher appointed by the manager of a national school under the system of management of national schools. I do not, of course, exclude the possibility of liability if it were to be established that, for example, an inspector was on notice of improper behaviour by a teacher and neglected to take action. That would not, however, be vicarious liability.

68. There is no legal basis in this case for the imposition of vicarious liability. For the same reason, insofar as it is necessary to say so, there can be no liability for the failure of Fr O’Ceallaigh to report the 1971 complaint. Fr O’Ceallaigh was not the employee of the second-named defendant.

69. For these reasons, I would dismiss the appeal.

Judgment of Mr. Justice Geoghegan delivered the 19th day of December 2008

This appeal is brought in an action for damages for personal injuries arising from a series of sexual assaults committed by the first-named defendant/respondent in the course of giving some out of hours lessons in a musical instrument to the plaintiff/appellant in the year 1973 in the national school then being attended by the appellant and of which the first-named respondent was the Principal. The appellant was born on the 20th November, 1964. The school was Dunderrow National School, Kinsale, County Cork and within the diocese of Cork and Ross. Although Leo Hickey has been named on the notice of appeal as a defendant/respondent, he is not in reality a respondent to this appeal in that a judgment in default of appearance was obtained against him and the damages have been assessed as against him by the High Court.

For convenience, I will henceforth refer to the second, third and fourth-named defendants as simply “the State”. The appeal is, essentially, against the finding by the High Court (de Valera J.) that the State was not vicariously liable for the above-mentioned acts of sexual abuse.

The school in question was an ordinary national school. I have deliberately included the adjective “ordinary” so as so make clear that any views which I will be expressing on the relevant law are intended to apply only to schools which are subject to the patronage of the local Catholic Bishop and of which he, or more usually the local parish priest, is manager. I suspect that the legal position would be exactly similar in relation to say the Church of Ireland national schools but because there is no information before the court relating to their exact status, I would prefer to confine my views to Catholic national schools of the kind I describe. I am, therefore, excluding from the ambit of this judgment national schools which are owned by religious orders such as, for instance, the Christian Brothers. Different principles may or may not apply to them. Needless to say, no view which I will be expressing should be taken as applying to secondary schools funded by the State.

In considering the issue of vicarious liability (if any) on the part of the State, it is not in dispute that a teacher in an ordinary national school of the kind that I have described including the principal of that school is in a contractual relationship with the manager of the school. In other words, the Manager is the employer. Under the law of contract, it is, of course, conceptually possible in some instances for a party who enters into a contract as an agent (whether disclosed or undisclosed) to become personally liable on the contract in addition to his principal. It may not be beyond argument therefore, that the manager of an ordinary national school is contracting as agent for the patron, i.e., the Bishop and that the Bishop could himself be liable. What is certainly beyond argument is that the State is not in a contractual relationship of any kind with the teacher including the principal.

It seems clear, however, on the authorities that vicarious liability is not necessarily confined to the tortfeasor’s employer in the contractual sense. But even in the case of an employer, an employer will not be liable for acts done wholly outside the scope of authority. However, as MacMahon and Binchy point out in the 3rd edition of “Law of Torts” at p. 1102 there is good authority for saying that “within the scope of authority” is a phrase which must be interpreted liberally in favour of the injured plaintiff. The learned authors cite in particular in support of this proposition an unreported judgment of this court delivered the 29th July, 1955 in Doyle v. Fleming’s Coal Mines. In the context of sexual assault, a useful discussion of the “scope of employment” issue is contained in the judgment of Gleeson C.J. in an appeal to the High Court of Australia in the case of New South Wales v. Lepore 212 CLR 511 and which is, I think, the leading case on this subject in Australia. Gleeson C.J. commences his judgment as follows:

“If a teacher employed by a school authority sexually abuses a pupil, is the school authority liable in damages to the pupil? No one suggests that the answer is ‘no, never’. In Australia, at least until recently, an answer ‘yes, always’ would also have been surprising. More information would have been required.”

What seems clear from that case and from others is that common law jurisdictions such as Australia, Canada and England have long abandoned the principle (if it ever existed) that there cannot be vicarious liability for deliberate unauthorised acts. Indeed in this particular appeal, as I understand it, the issue of scope does not really arise. The issue is whether under the national school arrangements, the State is so disconnected from the individual teacher including a principal that it cannot in any circumstances be vicariously liable for torts committed by those teachers.

My reason, however, for diverting into the issue of scope is to make it clear, as I will be doing later, that there can be no circumstances whatsoever in which the State would be vicariously liable for a teacher’s tort where the manager and/or patron were not.

Regrettably, this court has become aware through the numerous judicial review cases seeking to stop criminal trials that in many instances there have been alleged sexual assaults by teachers in a semi-concealed fashion in the actual classroom while teaching. That is an extreme case and is surely one in which under the modern jurisprudence, the manager and/or patron would be vicariously liable. At the other end of the spectrum, however, there may be cases where a teacher, say, arranges to meet with a pupil during holidays, takes that pupil to bed with him and sexually assaults the pupil. That may arguably be so outside the scope of the employment that there would be no vicarious liability on the part of the Church authorities and, of course, ipso facto none on the part of the State. Obviously, there can be grey areas in between. But in my view, this case would not be one of them. I do not think it is or could be seriously contested that music lessons given on a voluntary basis out of hours in the school premises by no less a person than the principal could be regarded as outside the scope of employment for the purposes of vicarious liability.

In both sets of written submissions on this appeal, the case of Fox v. Higgins (1912) 46 I.L.T.R. has been referred to. Gibson J., sitting at nisi prius in the then High Court had to grapple (which he did with great difficulty) with the interaction of the relationship between teacher and Manager on the one hand and the relationship between the then National Board of Education (now the Minister for Education and Children) on the other hand. At the end of his judgment, he observed as follows:

“On this somewhat confused legislation the fair inference is that the National Board, the Manager and the teacher are put together in a kind of triangular pact, and if the Manager accepts the terms of the National Board for the School, and undertakes for the teacher that he shall have the benefit of the National Board Rules, and if the teacher is assigned a contract which would bind him, then the Manager is bound, in my opinion in the same way and to the same extent as if he had signed the contract.”

That last part of the quotation refers to the quite different context in which Gibson J. had to consider the relationship. But his reference to a “triangular pact” is useful and, in my opinion, relevant to this case, for reasons on which I will elaborate later. I am in broad agreement with paragraph 7.8.4. of the appellant’s submissions to this court which reads as follows:

“The employment context of a national school teacher cannot be fully explained by reference to a simple contractual relationship between the national school teacher and a manager or, more recently, a Board of Management. The true relationship has been described as a complex tripartite

legal

relationship – or, by Gibson J. in

Fox v. Higgins

‘a kind of triangular pact’

. Ultimately when one applies the legal test set out above (for ascertaining whether or not there exists a relationship of vicarious liability) to this triangular pact it appears that vicarious liability should be imposed on the respondents for the acts of the first-named defendant.”

I would accept that even if the State can be vicariously liable in some circumstances for the torts of a teacher or especially a principal of a national school, the manager and possibly the patron would also be vicariously liable. The converse however would not be true. I would not contend that the State could be liable for ordinary negligent accidents that may occur in the day to day running of a school such as, for instance, the neglect by a teacher properly to supervise a recreation. Unless there was some kind of consistent pattern of such accidents, events of that kind would be wholly outside the ambit of the State’s role in primary education. Whilst therefore in such a situation there would be vicarious liability on the part of the Manager there would be no such liability on the part of the State. In my view, the correct principle to apply is that the State (as distinct from the Church authorities) should be vicariously liable only for wrongs which if discovered would have inherently rendered the relevant principal or teacher whose application has been sanctioned by the Minister, unsuitable to be retained.

It is important now to examine in some depth both the factual position as to the relationship between the State and the school on the one hand and the factual context in which the sexual assaults occurred.

The State has an obligation to provide for free primary education under Article 42.4 of the Constitution which paragraph provides as follows:

“The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.”

Under the terms of the previous paragraph, i.e., paragraph 3, the State must not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State or to any particular type of school designated by the State. But the paragraph goes on to provide:

“The State shall, 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.”

The School Attendance Acts form part of the compliance by the State with that last mentioned obligation. For all practical purposes, most of the primary education in this country has taken the form of a joint enterprise of Church and State. By “joint” I do not mean that each has the same function but rather that a school system resulted from complementary functions carried out together by the Church and State. As was made clear in the evidence in the High Court the primary system of education in Ireland has its origins in the early part of the 19th century and it also has its roots in the concerns of the different churches that their particular ethos would be reflected in schools of that ethos. I have already postulated at least the possibility of a relevant difference between primary schools owned by the Bishop on the one hand and primary schools owned by a religious order running a school on the other. I think it would be fair to say that the Bishops’ concerns have been essentially directed towards the religious aspect and their desire to control education is incidental to that end. On the other hand, an order like the Christian Brothers are professional educators as well as religious evangelists. If there were no constitutional difficulties about the State entirely withdrawing its role in relation to traditional national schools and if it did so, I would rather doubt that a Bishop, to say nothing of an ordinary parish priest, could cope with the running of schools on their own. In my view, the State plays a crucial role and this is reflected by the expert evidence given in the High Court. I will, in due course, return to the question of whether in these circumstances there should be vicarious liability on the part of the State for the acts complained of in this case. For the present, I will continue with the facts.

In the High Court there were two key witnesses in relation to State involvement called by the State. One was Professor Coolahan, Professor of Education at NUI, Maynooth and the other was Mr. McGleannain, a retired school inspector who in fact had ended his period in the Department as Chief Inspector. Professor Coolahan not only gave fascinating evidence as to the history of the national school system but gave it with quite outstanding clarity. He explained that at the beginning of the 19th century there were various types of schools. In particular there were the so-called “hedge schools”. From time to time there was agitation in the U.K. parliament that the State should give support to educational endeavours in Ireland particularly for Catholics who were the poorest of the population. In October, 1831, the Chief Secretary for Ireland, Lord Stanley took action. A famous letter issued at that time formed almost the only legal basis (apart from the Constitution itself) for the primary education system for over a hundred and fifty years. However, the churches expressed concern about the undenominational nature of the intended education. The Commissioners of National Education, the predecessors of the Minister for Education were established and they made it clear that they were not running a state system of schooling but a state support system, though they did establish a few schools of their own. However, the State support schooling was not simply confined to funding but was conditional on the compliance with circulated rules and regulations. Professor Coolahan, however, made it clear that the school manager appointed the teachers more or less in whatever manner he thought fit but when asked in direct examination did the hierarchy ever acknowledge that the Minister had a role in choosing a school manager or school principals or school teachers, the professor replied as follows:

“Not in the choosing, but, yes, in the question of credentials and teaching qualifications. The rules and regulations set down by the State would have set down that you could not be appointed a principal unless you were a qualified teacher, so much experience, and things like that. These would be laid out and it would be expected that the manager would have to comply with this, and also inform the Department of the situation.”

I will return later to the question of what might be regarded as “credentials and teaching qualifications”. At this stage the cross-examination of Professor Coolahan becomes important. Having given interesting but not particularly relevant evidence relating to the teaching of religion in the schools and the original difference of opinion between the Bishops and say the Christian Brothers as to the rigid division between secular and religious teaching, Professor Coolahan was then asked about secular inspection. He had already given evidence about diocesan inspectors in relation to religious teaching. When asked were there inspectors “in other areas” his answer was:

“Oh, yes. The Inspectors, right from the beginning in 1833, you got an inspection system established as soon as the national system was established, really, and by the 1850s you got a very elaborate structure of inspection established for primary schools, which tended to be very interventionist. Each Inspector had so many schools allocated to him or her and then there were district and Head Inspectors established to oversee the routine inspection. The Inspector would visit the school on a fairly regular basis and sometimes carry out more extended examinations than other times, but the inspector also, be it he or she, mainly he in the early years, would carry out probation of the teachers newly appointed and so on.”

In passing, I would make the comment at this stage that it must have been always inconceivable that an inspector, who learned about inappropriate assaults whether sexual or otherwise on pupils, would not have taken up the matter with the powers that be and I doubt very much that it would have stopped with the Manager. Essentially, the Inspector was there to report back to the Department in the new state or the Board in the old state. Later on in his evidence under cross-examination, Professor Coolahan, referring to these inspections made the following interesting comment:

“Reportage was a remarkable feature. I suppose the whole Victorian tradition. Reportage of the inspectors on their school visitations was very extensive all through the years and it has continued. The Primary School Inspectors – well, now it is primary and secondary, it is one inspectorate, but up till fairly recent times the primary school inspectorate was a distinct cadre of inspection which was much more closely linked to the schools and much more authority in the schools than would have been the case, say, in the secondary school inspectorate.”

Professor Coolahan was then asked to expand on the distinction between the primary and secondary inspectorates before the merger. He said he could explain it and he went on to observe as follows:

“It lies in this context, that the rules and regulations for national schools were established very early on and the Inspector was appointed as the key agent to ensure, from the point of view of the Commissioners at first and later the Department, that rules and regulations were fulfilled and that teachers were efficient in the carrying out of their professional duties. That got readily established and was accepted by all concerned, right through the 19th century, so a tremendous tradition was built up in the Irish national school inspectorate. In terms of international terms, it is remarkably interesting. But anyway the situation in post-primary inspectorate for secondary schools was very, very different. The secondary schools were purely private institutions, denominational, as well and when the Inspectorate was appointed, it began in 1908/09, the Secondary School Inspectorate really became established – they were not always, shall we say, treated with open arms by some of the school authorities, because particularly some of the Church still felt this was an intrusion by the State in their patch, if you like. Some inspectors have on record, even in the 1920s, secondary school inspectors visiting secondary schools and being tolerated rather than, shall we say, warmly welcomed. There was always a different tradition and very much tentative at secondary level. The primary inspectorate had a much more engaged role and responsibility and much more widely accepted. Of course it has changed now more or less at all levels.”

I make no apologies for continuing with Professor Coolahan’s evidence at this point because I think it is highly relevant to the issues on this appeal. The questioning and answers continued as follows:

“Q. How do you mean ‘changed now’?

A. The Inspectorate has been restructured now and they are much more accepted at post-primary schools, as well.

Q. How important is the Inspectorate or was the Inspectorate until – I suppose things changed a bit with the introduction of the Boards of Management?

A. Yes.

Q. Up to the mid-1970s, how important was the Inspectorate?

A. Indeed, right up until now, it is still very important. Inspectors are a key agency by which the Minister satisfies him or herself about the quality of the system. Indeed, a National Education Convention that I was involved in, in 1993/94 – I suppose it was the biggest, shall we say, consultative discussion on Irish education in a structured format. One of the striking things that emerged a thing that stays in my mind was the regard and concern for the Inspectorate by all parties. It was quite a striking feature, how much teachers, managers and parents and so on wanted the Inspectorate to stay as a key agency within the Irish school system. The Irish Inspectorate, particularly at the primary level, coming back to your question, was a very vibrant and active agency within the system and the Commissioners and Ministers relied a lot on the Inspectorate to keep it informed of the progress of the system in regard to secular instructions.”

The Professor went on to state that they never interfered with religious instruction. But when it was put to him that it would be fair to say that in relation to education outside religious instruction the role of the Inspector would be fairly wide ranging he agreed. Later again in his evidence, the Inspector agreed with Mr. Callanan, S.C. in cross-examination that the Inspector’s remit “would not be a narrow one, simply to ensure say that the curriculum was being taught, it would not be formalistic, it would be an assessment of the overall effectiveness of a teacher and the suitability of a teacher.” Professor Coolahan broadly agreeing with that proposition went on to explain that the Inspectors would also enquire about issues that might occur locally in relation to schools such as sites of schools, the efficiency of the school, the tone of the school, the efficiency of the teaching whether there were good relationships etc., but also whether there were poor conditions. It would not just be a question however of an inspector writing these matters down and reporting to his Department, he would take these matters up directly with the Manager. Mr. Callanan put to the Professor a particular extract from a particular Inspector’s report translated from the Irish reading: “The teacher has a good personality …”. It then emerged that this was a reference to Mr. Hickey, the first-named defendant in this case. The next extract is significant: “The teacher has a good personality but does not sufficiently try to encourage the pupils to participate in the learning. It appears that he should be able to do that.” Mr. Callanan suggested that a kind of assessment of personality and the suitability of the teacher were relevant to an inspector’s report. The actual answer of Professor Coolahan to that suggestion is of some significance:

“Certainly, yes, and mode of relating with pupils and engaging with them. I think that would be quite usual to get comments like that.”

The dialogue between Mr. Callanan and Professor Coolahan then continued as follows:

“Q. If a serious issue arose in relation to a teacher, that is something that would go to the Inspector?

A. I think if a serious issue arose about a teacher .. now whether it would automatically go to him is another matter, but certainly if it was drawn to his attention he would take an interest in that and explore that issue.”

Essentially, the Professor agreed with the questions being put to him and the effect of his answers was that the Inspector would become involved in these issues both with the manager and the Department. The Professor explained that undoubtedly the Inspector was a major conduit between the Department and the local school and that from a practical point of view this precluded parents from writing to the Minister “which happens a lot.”

I would merely comment at this stage that it would beggar belief that if parents were aware of any kind of systematic sexual assaults by a principal in a school which was not being attended to by the Manager, the matter would not be taken up with the Department. Of course, the Department could reply “we have no role”. But I do not think that is the thrust of the evidence of Professor Coolahan.

One of the extraordinary features of this case is that the charges to which the first-named defendant pleaded guilty on the criminal side in relation to this plaintiff were sample charges. The plaintiff was only one of a number of children at the time who were allegedly sexually assaulted by the first-named defendant. Nevertheless, it is accepted that no fault whatsoever attaches to the Department in the sense that the Department had no knowledge of any such assaults and that includes the Inspector. There is, therefore, no question of any vicarious liability on the part of the State for some negligence on the part of the Inspector. In the High Court, there was a suggestion that the curate in the parish who was, for all practical purposes, the acting Manager (the Parish Priest, Archdeacon Stritch being indisposed) did receive some form of complaint and that depending on whether that complaint was reported on to the Department or not, the Department was either directly or vicariously liable. That suggestion is now abandoned.

Professor Coolahan went on to further agree that it would be his surmise at least that if an inspector in the course of his duties in a school discovered there was a serious issue of misconduct operating there, that would be an issue he would report back to the Department as well as to the Manager. When asked whether, for example, if a parent had complained about a teacher that would be something that might be raised with the Inspector or indeed for the School Manager to raise with the Inspector, Professor Coolahan agreed that that would be true and went on to make the following interesting comment:

“What would be more likely to happen, however, in the tradition was that the parent to a good extent was external of the system up until recent times and he or she would have no awareness of Inspectors’ time or duties or calling in any way. What would happen more often would be that the parent would send a complaint to the Minister .. that used to be a strong tradition, actually, probably much more so in the older days than today and then it would be likely drawn to the intention of the Inspector to investigate it.”

Mr. Callanan then went on to suggest that the School Manager would not have a particular qualification in relation to education or teaching or indeed the management of schools. The Professor, however, explained that this was largely chance. Some would have a huge interest and some would not.

The evidence of Professor Coolahan then went on to establish that under the Department of Education Rules, where the Minister was satisfied that a teacher had conducted himself improperly or had failed to comply with the Rules, penal action including prosecution, withdrawal of recognition and reduction of salary might be taken when in the opinion of the Minister such action was warranted. Indeed the evidence established that the State does have the right to impose very significant sanctions including withdrawal of recognition which could affect employment in other schools. Furthermore, although the Manager appoints a teacher including a principal, that appointment is subject to the approval or the sanction of the Minister or the Department. Mr. Callanan then put to Professor Coolahan Rule 121 of the 1965 Rules sub-rule (2) which provided as follows:

“Teachers should pay the strictest attention to the morals and general conduct of their pupils.”

The Professor went on to explain that in early days the teachers were very much seen as role models and as he put it “they were not to be questioned, people of Christian sentiment, quiet disposition, obedient to authority and so on and so forth.” Counsel pointed to Rule 68 which required that the teacher should constantly “inculcate moral virtues, including purity”. The Professor agreed. He was then asked a significant question:

“Q. To what extent do you consider that the fact the national school system is backed by the State and the Inspectorate is important to the public confidence, the confidence of parents in particular, in the national school system in Ireland.”

Professor Coolahan said he thought it was very important, in particular he considered that a striking feature of the system was the confidence the public had in the system at different levels. He thought that at primary level there was a confidence “that the Department knows what it is about, in that it has a tradition established to its Inspectors and its policy makers and so on and so forth of being a caring Department and a progressive Department.”

After Professor Coolahan had ended his evidence, the learned trial judge asked a number of questions. In particular he asked whether there was any structure or machinery whereby parents could contact the Inspector. The witness did not think there were but possibly a special appointment could be made. In relation to what the judge called “the 1970 to 1974 period” the Professor made the following observation:

“I think what was happening there was that parents themselves, at least middle class parents, anyway, were getting much more articulate about their roles and rights and much more exercised about this. There were parent movements and their pressure for parent involvement in management boards was coming to the fore. In the Irish tradition, my honest view is that parents had a tradition of contacting the Department about any grievances they had or problems, and that could include teachers or Inspectors. As a matter of fact, I think there is a great amount of documentation in the Department about that, Irish parents writing into the Department about problems.”

Just before the witness withdrew, it emerged not only would parents contact the Department on quite a regular basis but teachers would also do so.

I turn now briefly to the evidence of Mr. McGleannain, the Inspector. He made clear that no complaint was ever made to him about any of the alleged misbehaviour of the Principal, Mr. Hickey. Under cross-examination however, he was asked the following question and gave the following answer.

“Q. If, for example, it came to your attention that a teacher was of bad character, for whatever reason, that would be something which within the rules you would feel it appropriate to report upon to the Department. You might almost report upon it to the Manager, but it would be appropriate to report it to the Department?

A. The procedure would be you would visit the school to try to establish for oneself whether in fact there was any possible substance in the complaint or the report, and you would next bring it to the attention of the Manager of the school, and then you would prepare a report and a recommendation and send it to the Department.”

He explained that the reporting to the Department would, in practice, be to the Deputy Chief Inspector. Mr. McGleannain then agreed with counsel that the Department, through the Deputy Chief Inspector, would take an interest in the report and would consider a number of alternatives possibly further investigation by Mr. McGleannain but, ultimately, would consider whether or not action was required. It was then also put to the Inspector that another channel to which complaints could be made would be direct complaints to the Minister. He confirmed that that was so. He also confirmed that in such a situation he would be required to investigate the complaint with the teacher, the Principal and the Manager. When asked whether if a teacher was guilty of misconduct of any kind there could result a disciplinary action under Rule 108 of the relevant Rules, Mr. McGleannain explained that if the misconduct was within the area of the curriculum that would be so but otherwise would have to be “referred onwards”. That expression was explained later as meaning superiors within the Department of Education. However, the Inspector accepted that if he had become aware of sexual abuse of a pupil or a serious allegation of such abuse, he would “certainly” have reported that to the Department. He went on to say that the first line of investigation would be by the Manager and from there it would go to the Department. There then followed the following questions and answers:

“Q. If the Manager failed to act – assume for a second that there was sexual abuse – if the Manager failed to act appropriately, the Department would have within its power to take the necessary action by, for example, withdrawing recognition of the teacher; is that not correct?

A. There would be a formal investigation.

Q. Conducted by the Department?

A. Conducted by a DCI (Deputy Chief Inspector).

Q. I think the last witness mentioned that the Department retained to itself, or the Board perhaps in the older days, the right to suspend a teacher for whatever reason might arise, and presumably that might arise in the context of an investigation of a sexual nature?

A. The withdrawal of recognition is what the Minister would have now, the suspension would be a managerial function.”

Under further questioning, the Inspector made it clear that if an allegation of sexual assault by a teacher on a national school pupil was considered well-founded by the high powered inquiry set up by the Department, it could lead to withdrawal of recognition or to a garda investigation but if the option of a garda investigation was adopted and if the gardaí found the complaint justified then there would be withdrawal of recognition. Indeed, Mr. McGleannain accepted that it was “really inconceivable to imagine that there could be any other result”. The Inspector then accepted that for all practical purposes withdrawal of recognition was a dismissal from the school. In this connection, there was a major difference between dismissal by the Manager and withdrawal of recognition by the Department. If there was an ordinary dismissal by the Manager, the teacher might obtain an alternative position in another school. If, on the other hand, recognition was withdrawn that in effect meant that his licence to teach was withdrawn.

My reason for covering in such detail the evidence of Professor Coolahan and Mr. McGleannain is to demonstrate that the role of the Department in relation to an ordinary national school goes way beyond merely paying the teachers’ salaries and ensuring that a curriculum is complied with.

With that factual background, I turn now to the question of law as to whether this State could be held to be vicariously liable of the sexual assaults complained of.

Although it is trite law, it is nevertheless useful to reiterate that a person or body who is vicariously liable is not by definition himself or itself at fault. In other words, vicarious liability is a form of strict liability. I think it is fair to say that in the common law world generally there is a pragmatic element involved as to when and where vicarious liability is imposed. Two passages from MacMahon and Binchy on the Law of Torts 3rd edition neatly summarise the position. The first is at paragraph 43.02 and reads as follows:

“Historically speaking this example of strict liability can be traced to earliest times although its modern form in England dates from the end of the 17th century. It survived the

‘

no liability without fault’

era, to some extent as an anomaly, but nowadays with the trend towards no fault concepts it can be sustained by more modern justifications such as risk creation and enterprise liability. In other words, the concept of vicarious liability has dovetailed nicely with the more modern ideas that the person who creates the risk, or the enterprise which benefits from the activity causing the damage, should bear the loss. Such persons or enterprises are in a good position to absorb and to distribute the loss by price controls and through proper liability insurance. Liability in these cases should, it is felt, follow

‘

the deep pocket’.”

The authors go on to point out, of course, as I have done that the wrongs must arise out of or be within the scope of tortfeasor’s “employment”. This condition has given rise to much litigation but I do not think it is an issue on this appeal. The second passage is contained in paragraph 43.04 of the same work:

“The instance given above where vicarious liability can arise – between employer and employee, principal and agents, and firm and partner – do not constitute an exhaustive list. Other instances of vicarious liability can arise, where the law will hold one person liable for the wrongs of another even though no formal legal relationship exists between the parties in question.”

The learned authors go on to deal with a decision of this court which they described as having “strikingly illustrated” the above principles. This is the case of Moynihan v. Moynihan [1975] I.R. 192. Bearing in mind the wholly different factual situation in that particular case and indeed at any rate, I am not placing any reliance on it in the views which I will be expressing. As I see it, that was a sui generis decision if ever there was one. It was vicarious liability for the turning over of a teapot by a young child in a private family house. I would prefer to base my judgment on the broad principles, as referred to in MacMahon and Binchy and as adopted by the mainstream common law courts.

Perhaps the leading modern case in common law jurisdictions is Bazley v. Curry 174 DLR 45 which was a decision of the Supreme Court of Canada delivered on the 17th June, 1999. The judgment with which the other members of the court concurred was delivered by McLachlin J. In that particular case a children’s foundation, a non-profit organisation, operated two residential care facilities for the treatment of emotionally troubled children. The Foundation authorised its employees to act as parent figures for the children. The Foundation hired a paedophile to work in one of its homes without knowing he was such. In fact it had checked him out and had been informed he was a suitable employee. The Supreme Court of Canada upheld the decision of the Court of Appeal to the effect that the Foundation was vicariously liable notwithstanding no fault on its part. At page 14 of the internet version of her judgment McLachlin J. under the heading “Policy Considerations” says the following:

“Vicarious liability has always been concerned with policy: Fleming (Law of Torts) at pp 409 et seq. The view of early English law that a master was responsible for all the wrongs of his servants (as well as his wife’s and his children’s) represented a policy choice, however inarticulate, as to who should bear the loss of wrongdoing and how best to deter it. The narrowing of vicarious responsibility with the expansion of commerce and trade and the rise of industrialism also represented a policy choice. Indeed, it represented a compromise between two policies, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant and a concern not to foist undue burdens on business enterprises: Fleming, ibid. The expansion of vicarious liability in the 20th century from the authorisation – based liability to broader classes of ascription is doubtless driven by yet other policy concerns.

‘

Vicarious liability cannot parade as a deduction from legalistic premises but should be frankly recognised as having its basis in a combination of policy consideration.

’

(Fleming at p. 410)

The focus on policy is not to diminish the importance of legal principle. It is vital that the courts attempt to articulate general legal principles to lend certainty to the law and guide future applications. However, in areas of jurisprudence where changes have been occurring in response to policy considerations, the best route to enduring principle may well lie through policy. The law of vicarious liability is just such a domain.”

Later on in the judgment, the learned judge further observes as follows:

“First and foremost is the concern to provide a just and practical remedy to people who suffer as a consequence of wrongs perpetrated by an employee. Fleming expresses this succinctly (at p. 410)

“A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.”

…. This principle of fairness applies to the employment enterprise and hence to the issue of vicarious liability. While charitable enterprises may not employ people to advance their economic interests, other factors discussed below, make it fair that they should bear the burden of providing a just and practical remedy for wrongs.”

In a later decision of the Supreme Court of Canada in Blackwater v. Plint [2005] 3 S.C.R. 3, the court approved in a sexual assault case a trial judge’s finding of joint vicarious liability against the Church and the State. In that particular case fault was apportioned 75 per cent to Canada and 25 per cent to the Church.

The relevant Canadian cases have all been put before this court but I do not want unnecessarily to lengthen this judgment by going into them in more detail than I have done. It is sufficient at this stage to note that in the leading House of Lords decision in Lister v. Hesley Hall Limited [2002] 1 AC 215 Bazley v. Curry was broadly approved and applied and other Canadian decisions were also relied on including Jacobi v. Griffiths [1999] 174 D.L.R. (4th) 71 also included in the books of authorities before us. The Lister case itself was primarily concerned with scope and is not particularly relevant to this case

Fennelly J., at the hearing of the appeal, asked counsel for the appellant why the Church was not sued. He was using the expression “the Church” in a broad sense. Indeed he may not have used that precise word but it was to that effect. At first, no satisfactory answer was given but later it seemed to emerge that the main reason was a practical one of having to sue legal personal representatives of the deceased Manager Archdeacon Stritch or possibly of others such as the deceased Bishop Lucey or the deceased Fr. O’Ceallaigh, the curate who was for all practical purposes acting Manager after so many years. I ask myself whether in the context that this appellant was not to blame for delaying bringing her proceedings (for all the reasons well known to the court) does she have “a just and practical remedy” to use the words of McLachlin J. in being forced to sue anyone or more of the following:

“1. The personal representative of Archdeacon Stritch.

2. The personal representative of Bishop Lucey, the relevant Patron at the time.

3. The personal representative of Fr. O’Ceallaigh who appears to have been the acting Manager.”

The relevant executor or administrator if there ever was one may be dead, therefore necessitating an application to the court for a special grant de bonis non. Where would the assets to meet such a judgment be?

I think that in the circumstances of the relationship between Church and State, as already explained in relation to this school, exemption from vicarious liability by the State is not just. In my view, there was quite sufficient connection between the State and the creation of the risk to render the State liable. This does not mean, of course, that relevant Church authorities would not also be liable but they are not before the court.

There is another proviso which I would add. I am not entirely convinced that in this day and age the fact that a bishop/patron is not a corporation sole should necessarily preclude an action against the current Bishop and execution against the diocesan assets. But none of that arises here. I think there have been many cases in the past where actions have been brought against a diocese relating to events that occurred under a former Bishop and where a current Bishop would not take the point either as a matter of honour or because of insurance cover or both. But again none of that arises in this case. I have only concerned myself with the issue of whether irrespective of church liability vicariously or otherwise there should be on the facts of this case vicarious liability on the part of the State. There is no direct precedent that can be relied on because of the unique triangular relationship already described in the case of primary schools in Ireland which are Church managed but subject to State regulations. Applying the general modern principles underlying vicarious liability, I take the view that it is wrong to exempt the State from vicarious liability in this case and I would, therefore, allow the appeal.