Supreme Court dismisses appeal against dismissal of claim for vicarious liability for sexual assault by a soldier.

THE SUPREME COURT

Denham J.

Kearns J.

Finnegan J.

[S.C. No. 310 of 2007]

BETWEEN

RAYMOND REILLY

PLAINTIFF/APPELLANT

AND

PATRICK DEVEREUX,THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

JUDGMENT of Mr. Justice Kearns delivered on the 24th day of March, 2009

This is an appeal brought on behalf of the plaintiff whose claim for damages for personal injuries was dismissed in the High

Court (Johnson P.) on 30th July, 2007. In the proceedings the plaintiff, who had been employed as a member of the

Defence Forces from November, 1985 until November, 1997, complained that he had been sexually assaulted on divers

occasions during the course of his employment by the first named defendant who was a Sergeant Major in the Army and the

plaintiff’s superior officer. The plaintiff was born on 14th April, 1966 and is a married man with a family. He was nineteen

years of age when he joined the Army, a keen athlete and an accomplished boxer. The sexual abuse which occurred in the

office of the first named defendant in McKee Barracks commenced in or around 1989 and continued until 1995. The abuse

usually involved handling of the plaintiff’s genitals and the rubbing by the first named defendant of his private parts against

the plaintiff’s body. On other occasions the plaintiff contended that the first named defendant grabbed the plaintiff’s hands

and forced them down into the first named defendant’s private parts.

The plaintiff contends that as a result of these incidents he felt dirty, ashamed and guilty partly because he did not have the

courage to go to his superiors and report the matter and partly because he felt they would take the denial of a senior non-

commissioned officer over any claim from a mere gunner. Accordingly, when the plaintiff’s contract expired in November,

1997, he left the army. Thereafter he started drinking heavily, his marriage broke up and he developed post-traumatic stress

disorder.

The whole story of the plaintiff’s experience emerged only in 1998 when the plaintiff met another soldier on the street who

advised the plaintiff that he was aware of another similar incident involving the first named defendant and another soldier.

Thereafter the gardai were notified and criminal proceedings were brought against the first named defendant. In so far as the

plaintiff’s claim against the first named defendant is concerned, some compensation arrangement has been arrived at

between the parties and it is not an issue in this appeal.

The plaintiff commenced his proceedings by plenary summons on 15th June, 2001. While the Statute of Limitations was

raised by way of defence on behalf of the various defendants, Johnson P. determined that the psychological injury suffered

by the plaintiff was such as to substantially impair his ability to make a reasoned decision to bring the action and thus

determined that the plea under the Statute failed. No cross-appeal in respect of this finding has been raised by or on behalf

of the defendants in this appeal.

Having determined that the said assaults did take place and that the plaintiff suffered post-traumatic stress disorder as a

consequence of those assaults, the learned High Court judge had thus to determine:-

(a) Whether or not the second, third and fourth named defendants were vicariously liable for the assaults perpetrated by the

first named defendant.

(b) Alternatively, were those defendants on notice that such assaults were taking place on the plaintiff having regard to the

evidence of general chat, rumour and gossip about the first named

defendant’s activities, which it was suggested, were prevalent in the barrack room and the camp.

Having conducted a careful review of the relevant legal authorities, Johnson P. concluded as follows in relation to the issue

of vicarious liability at p. 9 of his judgment:-

“All of the above cases were cases which related to young and vulnerable children, which is not the situation

in this case. The plaintiff was a married soldier at the time of the first incident and I do not think that the

same principles that were applied in the cases of wardens of boarding schools and/or orphanages can be

applied to the Army. I have come to this conclusion after a good deal of consideration and some doubt. The

doubt was created particularly by the fact of the control which the first named defendant had over the plaintiff,

but overall I feel that the balance in this particular case lies against vicarious liability.”

In relation to the claim of negligence, the learned trial judge noted that the evidence tendered in relation to the ongoing

rumours, chat and gossip within army circles had been denied by all of the defendants’ witnesses. Whilst noting the

distinction in rank between the plaintiff’s witnesses and those called on behalf of the defendants, the learned trial judge

nonetheless concluded that all of the witnesses appeared to him to be attempting to tell the truth. He thus concluded that

while there may have been banter, possibly name calling and general slagging, none of it was or should have been taken

seriously given that any of the men, the N.C.O.’s or indeed any other officers who may have heard it may well have

considered it to be nothing more than banter of a humorous nature. It is of importance to note in the context of the findings

made by the learned trial judge that the plaintiff himself brought forward no complaint whatsoever in relation to the matters

complained of. The learned trial judge indicated that he was satisfied that had the Officer Corps any real apprehension as to

the behaviour of the first named defendant, they would have given notice of such apprehension through one of the routes

laid down in the Army Code. He thus concluded that the level and nature of any remarks which were described to have

occurred either in the mess room, the bar or the canteen were not such as would have alerted a reasonable person to take

steps to either enquire into or prevent the activities of the first named defendant.

Because it assumed a particular significance in the submissions made on behalf of the plaintiff during the course of the

appeal, I am including a further citation from the judgment of the learned trial judge in which he stated at p.10 of his

judgment:-

“It is necessary to look at the incidents and at the evidence in light of the times as they then were. These

events took place in the 1980’s and early 1990’s, at a time when the antennae of the ordinary reasonable

person were far less acute to the potentials for sexual abuse or sexual assault than they are today. We must

remember that, for the last ten years, the country has been subject to continual reports of sexual exploitation,

sexual abuse and sexual assaults, all of which have tended to make the population a great deal more sensitive

to matters which twenty years ago would not have drawn any attention whatsoever.”

In the course of this appeal, counsel on behalf of the plaintiff has suggested that this characterisation of the period in

question is so inaccurate as to render unsafe the primary findings of fact made by the learned trial judge and has further

contended that his findings in relation to the primary facts as a whole are not reasonably based having regard to the evidence

which was led at the trial. I propose to deal with the two issues raised at trial in reverse order because the preponderance of

the evidence at trial was in relation to the issue of negligence.

THE CASE IN NEGLIGENCE

It is undeniable that there was a significant body of evidence supporting the plaintiff’s claim to the effect that the proclivities

of the first named defendant were well known in Army circles. The plaintiff himself gave evidence that he was slagged on a

regular basis as being the first named defendant’s “bum boy”. Sergeant Thomas Forrester gave evidence that he and other

fellow soldiers heard about the first named defendant’s proclivities from soldiers in Kildare where the first named

respondent had previously been based. There was evidence that the N.C.O. s knew about it. Corporal Colin Smart gave

evidence that there were rumours rampant amongst the soldiers in Magee Barracks in Kildare in 1986 that the first named

defendant had a relationship with a gunner there. Corporal Jason Buckley gave evidence that he was informed by senior

gunners that the first named defendant was a ‘queer’ and not to be left alone with, that he tended to take advantage. He

admitted that he had been one of those who joined in with the general slagging of the plaintiff as the “plaything” of the first

named defendant. Gunner Colin Phillips, who joined the Defence Forces in March, 1997, gave evidence that there was

information all over McKee Barracks that the first named defendant was taking advantage of a certain gunner. Evidence was

also given that there was a rumour in circulation that while in the Lebanon, the first named defendant had sexually assaulted

a Finnish private and that this matter was discussed in the canteen amongst privates and N.C.O. s.

Equally, a considerable body of evidence supported the plaintiff’s claim that there was no satisfactory method for bringing a

complaint. He maintained he never received any guidance from the Army on how to deal with a situation of this nature. He

did not make a complaint because he did not believe his word would be accepted over that of a superior officer. Other

witnesses stated they were never made aware of structures for making complaints.

However, a large number of witnesses were called on behalf of the defendants to contest this evidence. Retired Regimental

Sergeant Major Dominick Finn was based in another barracks where Patrick Devereux worked. He knew the first named

defendant since 1959 and worked closely with him. They had performed duties and courses together and had been in the

Glen of Imaal on exercises. He had never heard it suggested that Patrick Devereux was a homosexual or that he took

advantage of other men or interfered with them. Retired Colonel William Gibson was Commanding Officer of the second

artillery regiment in McKee Barracks from June, 1992 to June, 1994. He had been posted to another barracks where Patrick

Devereux had also been posted at various stages during the 1970’s and 1980’s. Equally he had never heard any rumours

either that Patrick Devereux was homosexual or had been interfering with men. He asserted he would have heard any stories

of serious matters arising in the barracks. Furthermore, had he received information of this nature about an N.C.O. he

would have addressed it to the Barracks Commander. He had served overseas with Sergeant Devereux in the Lebanon in

1987 and had heard no rumours involving the Finnish soldier during that posting. Sergeant Anthony Bridgeman was the

sergeant in the vehicle section to which the plaintiff was attached and was the plaintiff’s superior officer. He stated in

evidence that he did not recall that the plaintiff was slagged or that the first named defendant was rumoured to be gay. He

only came to such knowledge after another soldier, Gunner Phillips, brought forward a complaint. Retired Regimental

Sergeant Thomas Hughes was a Regimental Quartermaster at the relevant times. He had also never heard any stories in

relation to Patrick Devereux, and while one would hear all sorts of stories doing the rounds within the regiment, this was not

one of them. Retired Lt. Colonel James Murphy was Commanding Officer of the Second Artillery Regiment between

September, 1991 and May, 1992 and he categorically rejected any suggestion that it was common knowledge that the first

named defendant was homosexual or taking advantage of men. He further stated there was a lot of interaction between the

officers, N.C.O.’s and men in the regiment and if anything like this had happened he would have become aware of it.

Colonel John Hall was Commanding Officer of the Second Artillery Regiment between May, 1989 and December, 1989. He

also rejected any allegations that it was common knowledge that Patrick Devereux was homosexual. Most of these witnesses

stated clearly that had they received information that he was engaging in homosexual acts with soldiers they would have

taken immediate action.

There was thus ample evidence to place in the balance against the evidence led by and on behalf of the plaintiff in this case.

The same may be said about the complaint procedures. Colonel William Gibson described those procedures. They included

the complaint procedures under the A7 Regulations which were communicated to members of the regiment generally. It

formed part of the training syllabus which all recruits were required to study and become familiar with. Apart from this route

of complaint, a soldier could have gone to a section boss or non-commissioned officer if he had a problem. A third avenue

of complaint lay in bringing forward any personal difficulty or complaint to the Army Chaplain. The Chaplain would be

particularly suitable for a personal or matrimonial type complaint. Alternatively, there existed at the time an Army social

worker, Sergeant Murray, who was a trained counsellor who had completed courses on bereavement counselling, drug

abuse courses and various other courses. Finally, a complaint could be brought to the General Officer Commanding who

would visit once a year. During the month preceding his arrival, routine orders would be published indicating that the G.O.C.

was visiting, that people were entitled to a private interview with him and could avail of this opportunity to bring forward a

complaint.

In so far as findings of fact by the High Court are concerned, this Court is bound by the principles outlined in Hay v.

O’Grady [1992] 1 I.R. 210, where this Court emphasised that it is not the function of the Supreme Court to review the

evidence and make its own decision on the facts. On the contrary, this Court is only concerned to ensure that primary

findings of fact made by the trial judge and inferences drawn by him from those findings are supported by the evidence.

This Court is mindful that the trial judge has the advantage of both hearing the witnesses and assessing their demeanour.

This fact assumes particular significance in the context of a nine day hearing in which there were conflicts of evidence which

the trial judge had to resolve.

This is not a case where there was any suggestion of a conspiracy on the part of the defendants to defeat the plaintiff’s

claim. The trial judge expressed himself as being satisfied that the witnesses on both sides were doing their best to tell the

truth. The learned trial judge had to prefer one version or the other, and in my view there was in this case ample evidence to

support the findings made on the question of notice. The trial judge was entitled to take into regard as part of the overall

factual matrix the fact that the plaintiff himself never brought forward a complaint of sexual harassment, notwithstanding the

fact that his file disclosed an ability to complain. In this regard the evidence disclosed that the plaintiff had lodged a

complaint arising from an incident where his pay cheque had become lost during training and invoked for that purpose the

complaint procedures in which he had been trained.

In relation to the complaints procedures, Professor Mona O’Moore, Academic Director of the Anti-Bullying Research &

Resource Centre, felt that the provisions of the A7 Regulations which were in force at the time of the plaintiff’s service were

good and sufficient by the standards of that time. I have already alluded to the other avenues of complaint which were open

to the plaintiff. Various witnesses called on behalf of the defence made it clear that there was no reluctance amongst soldiers

in advancing complaints when appropriate to do so. The evidence does not support any view that the Army was unreceptive

to complaints or would not process them. On the contrary, when Battery Sergeant Wall learned that the plaintiff had been

assaulted by the first named defendant, Officer Wall, despite undertaking not to do so, promptly reported the matter to his

superior officers. During his time in the Army, the plaintiff only sought assistance in relation to his marital activities and

never notified any employee of the respondents of the sexual assaults perpetrated by the first named defendant.

During the course of the appeal, Mr. Declan Doyle, senior counsel on behalf of the plaintiff, argued eloquently for the

imposition on the defendants of a special duty of care arising not merely from the plaintiff’s distinguished service as a soldier

and as a boxer who had represented his country, but also because the learned trial judge had mischaracterised the state of

public awareness of predatory sexual activities in the late 1980s and early 1990s in the passage cited at an earlier point in this

judgment. He submitted that such awareness existed well before then and gave a number of examples to support his

contention. However, to the extent that this consideration has any special relevance, I think the learned trial judge was

correct. The television programme “States of Fear” was broadcast by RTE only in 1999. That programme provoked a

storm of comment in the media at that time and continued to be debated and referred to for many years thereafter. It

prompted many complainants who had been sexually abused to come forward. The McColgan abuse case was also the topic

of huge media interest, but the much publicised civil hearing also post-dated the abuse in this case which ended in 1995.

It is a dangerous exercise in hindsight to apply knowledge and standards of today to events which occurred twenty-five

years ago. Homosexual activities were strongly discouraged in the Army at the time and homosexual activities were

criminalised until 1993. Accordingly, that orientation and preference was often hidden, notably in a predominantly male

environment such as the Army. Further, there was no evidence before the Court that a homosexual person was or is more

likely than a heterosexual person to commit a sexual assault. Indeed it can perhaps be best described as offensive to suggest

that gay men are more likely to assault a victim than heterosexual men.

For all these reasons, I am satisfied that the plaintiff’s appeal on the issue of negligence can not succeed.

VICARIOUS LIABILITY

The learned trial judge conducted a thorough review of the relevant case law on this topic and it has not been suggested that

he stated the legal position incorrectly but only that he applied the legal principles incorrectly to the facts of the case. The

legal review may thus be brief. Among the cases cited by the learned trial judge were two Canadian cases, namely, Bazley v.

Curry (1999) 174 D.L.R. (4th ) 45 and Jacobi v. Griffiths (1999) 174 D.L.R. (4th ) 71. Both of these cases set out

principles for establishing whether or not acts complained of were within the course of and within the scope of the

employment of the claimant. In both cases infant children of vulnerable age were involved and in both cases sexual assaults

were involved.

In the Bazley case, a children’s foundation 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 employees were to do

everything a parent would do, from general supervision to intimate duties like bathing and putting the children to bed. The

foundation hired a paedophile to work in one of its homes. The foundation did not know he was a paedophile. It had

checked and been told he was a suitable employee. Over a period of time, the employee sexually abused one of the children

in the home.

The matter was ultimately appealed to the Supreme Court of Canada which noted that the established common law test

posits that employers are vicariously liable for (1) employee acts authorised by the employer, or (2) unauthorised acts so

connected with authorised acts that they may be regarded as modes (albeit unauthorised modes) of doing an authorised act.

In noting that vicarious liability was generally appropriate where there was a significant connection between the creation or

enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employers desires, the court proceeded

to set out principles to determine the sufficiency of the connection between the employers creation and enhancement of the

risk and the wrong complained of which include, but are not limited to, the following:-

(a) The opportunity the enterprise afforded the employee to abuse his or her power.

(b) The extent to which the wrongful act may have furthered the employers aims (and hence be more likely to have been

committed by the employee).

(c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employers’

enterprise.

(d) The extent of power conferred on the employee in relation to the victims.

(e) The vulnerability of potential victims to wrongful exercise of the employee’s power.

In the Jacobi case two further principles were issued to assist in determining the issue as follows:-

(a) 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.

(b) If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should

be imposed in light of the broader policy rationales behind strict liability.

The learned trial judge also cited a passage from the speech of Lord Steyn in the leading English authority on the issue of

vicarious liability, Lister v. Hesley Hall Ltd. [2002] 1 A.C. 215. This again was a case where the plaintiffs were residents in

a school owned and managed by the defendants where they were sexually abused by the warden. Lord Steyn stated as

follows at p.230:-

“Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under

consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to

the warden. The question is whether the warden's torts were so closely connected with his employment that it

would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After

all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in

Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.”

Plaintiff’s counsel in this appeal relies almost exclusively on the principles laid down in the Bazley case. While accepting that

the plaintiff’s case is different from the situation of a young child being assaulted by an adult, it was submitted that the

environment of the Defence Forces was such that the normal rules of adult interaction did not apply. The disparity in rank

between the plaintiff, a gunner, and Sergeant Major Devereux, led to a situation where the first named defendant exercised

great power over the plaintiff and could command unquestioning obedience from him. It was further submitted that another

of the principles laid down in Bazley was met because an element of intimacy and camaraderie was encouraged in the Army

in circumstances where employees worked in close quarters together. Finally, it was suggested that within a culture where

complaining was discouraged and was largely fruitless, a person in the position of the plaintiff was particularly vulnerable to

a wrongful exercise of power by a superior officer such as the first named defendant.

However, I can not accept that the nature of the employment relationship between the plaintiff and the defendants in this

case was such as would support a finding of vicarious liability. While undoubtedly the first named defendant exercised a

supervisory and disciplinary role where the plaintiff was concerned, he was not in the same position as a school teacher or

boarding house warden in relation to a child. Nor was the nature of the employment one which would have encouraged

close personal contact where some inherent risks might be said to exist as, for example, might arise if the first named

defendant had been a swimming instructor in close physical contact with young recruits. There was no intimacy implicit in

the relationship between the plaintiff and the first named defendant nor was there any quasi-parental role or responsibility

for personal nurturing which was found to exist in the cases where vicarious liability was established. To hold otherwise

would be to extend to the Defence Forces a virtual new species of liability where the defendants would be liable for virtually

every act or omission of an employee.

Such an approach was firmly out ruled by this Court in O’Keeffe v. Hickey [2008] I.E.S.C. 72

As Hardiman J. stated (at p.69 to 70 of his judgment):-

“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”,

Hardiman J. went on to note the “chilling effect” of any extension of the doctrine of vicarious liability whereby the State

would become liable for criminal activities of those in their employment in circumstances where there was no fault attaching

to the State. To do so would be not only to make the taxpayer liable for the criminal acts of employees of State bodies, but

it would also affect that body’s actions in ways which would require to be considered as a matter of policy before such an

extension of the law could be allowed.

While the O’Keeffe case involved a vulnerable child who was sexually abused by a teacher at school, it need hardly be

stressed that the facts of the relationship between the parties in the instant case could hardly be more different. The plaintiff

in this case was at all material times an adult. He elected to accept the rigours, the discipline and the camaraderie associated

with the life of a professional soldier. It must be accepted that the Defence Forces require an atmosphere of discipline in

order to function. A wide extension of liability would undermine the whole operational basis of any army.

While the able submissions advanced on behalf of the plaintiff make reference to the Bazley principles, they do so in a

necessarily limited way and counsel was obliged to frankly concede that not all of the criteria elaborated by the Canadian

Supreme Court were met in the instant case.

I believe this case falls short by a considerable margin of establishing the prerequisites for a finding that the defendants

should be held vicariously responsible for the criminal activities of the first named defendant in this case.

I would dismiss the appeal.