Supreme Court dismisses appeal against State for teacher's sexual abuse due to lack of direct employment relationship.

THE SUPREME COURT

174/2006

Murray CJ;

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

LOUISE O’KEEFFE

Plaintiff/Appellant

AND

LEO HICKEY

Defendant

AND

THE MINISTER FOR EDUCATION AND SCIENCE

IRELAND AND THE ATTORNEY GENERAL

Defendants/Respondents

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 S.C.R. 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:

“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.”

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:

“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.”

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 at 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 D.L.R. 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] I.R.L.R. 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, 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.