O'Keeffe v Hickey and Others

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Hardiman.,Mr. Justice Geoghegan,Mr. Justice Fennelly
Judgment Date19 December 2008
Neutral Citation[2008] IESC 72
Date19 December 2008
Docket Number[S.C. No. 174 of 2006]

[2008] IESC 72

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

174/06
O'Keeffe v Hickey & Ors
LOUISE O'KEEFFE
Plaintiff/Appellant

and

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

UNION WITH IRELAND ACT 1800 (UK)

MINISTERS & SECRETARIES ACT 1924

CONSTITUTION ART 42

CONSTITUTION ART 42.5

CONSTITUTION ART 42.2

CONSTITUTION ART 42.4

EDUCATION ACT 1998

FOX v HIGGINS 1912 44 ILTR 222

MCENEANEY v MIN FOR EDUCATION 1941 IR 430

CROWLEY v IRELAND 1980 IR 102

MCMAHON, BINCHY IRISH LAW OF TORTS 3ED 2000 1091

MOYNIHAN v MOYNIHAN 1975 IR 192

CIVIL LIABILITY ACT 1961 S2

SALMOND, HEUSTON SALMOND & HEUSTON ON THE LAW OF TORTS 19ED 1987 521-2

BAZLEY v CURRY 1999 174 DLR (4TH) 45

WILLIAMS v MORRISSEY 1903 37 ILTR 65

LAWLOR v O'CONNOR & ANOR 1929 63 ILTR 103

CHESHIRE v BAILEY 1905 1 KB 237

LLOYD (PAUPER) v GRACE, SMITH & CO 1912 AC 716

BARWICK v ENGLISH JOINT STOCK BANK 1866-67 LR 2 EX 259

UDELL v ATHERTON 1861 30 LJ EX 337

JOHNSON & JOHNSON (IRELAND) LTD v C P SECURITY LTD 1985 IR 362

MORRIS v CW MARTIN & SONS LTD 1966 1 QB 716

DELAHUNTY v SOUTH EASTERN HEALTH BOARD & ORS 2003 4 IR 361

HEALTH BOARD v C (B) & THE LABOUR COURT 1994 5 ELR 27

EMPLOYMENT EQUALITY ACT 1977 S2

TROTMAN v NORTH YORKSHIRE CO COUNCIL 1999 LGR 584

JACOBI v GRIFFITHS 1999 174 DLR (4TH) 71

LISTER & ORS v HESLEY HALL LTD 2002 1 AC 215

MULLIS, NOLAN TORT 2001 AER REV 426 PARA 29.30

ROSE v PLENTY 1976 1 AER 97

NEW SOUTH WALES v LEPORE & ANOR 2003 HCA 4

SAMIN v QUEENSLAND & ORS 2003 HCA 4

RICH v QUEENSLAND & ORS 2003 HCA 4

SINNOTT v MIN FOR EDUCATION & ORS 2001 2 IR 545

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259

CONSTITUTION ART 15.2

BLACKWATER v PLINT 2005 SCC 58

SALMOND ON THE LAW OF TORTS 14ED 1965 644

DUNCAN v FINDLATER 1839 6 CL & F 894

SALMOND THE LAW OF TORTS 1ED 1907 83

IMPERIAL CHEMICAL INDUSTRIES LTD v SHATWELL 1965 AC 656

CANADIAN PACIFIC RAILWAY CO v LOCKHART 1942 AC 591

LIMPUS v LONDON GENERAL OMNIBUS CO 1862 1 H & C 526

WILLIAMS v A & W HEMPHILL LTD 1966 SC (HL) 31

SHORTT v CMSR OF GARDA SIOCHANA & ORS 2007 4 IR 587 2007 IESC 9

TORT

Negligence

Liability - Vicarious liability - Liability of State for school managed by religious order - Sexual assault on pupil at school - Whether State vicariously liable - Control - Whether direct employment relationship existed - Scope - Whether "close connection" test appropriate - Whether vicarious liability should be extended on basis of enterprise liability - Whether broader policy rationales should be taken into account - Fox v Higgins (1912) 46 ILTR 222, McEneaney v Minister for Education [1941] 1 IR 430, Moynihan v Moynihan [1975] 1 IR 192 and Crowley v Ireland [1980] IR 102 followed; Trotman v North Yorkshire County Council [1999] LGR 584 approved; Bazley v Curry (1999) 174 DLR (4th) 45, Jacobi v Griffiths (1999) 174 DLR (4th) 71, Lister v Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 AC 215, Rose v Plenty [1976] 1 WLR 141 and New South Wales v Lepore [2003] HCA 4, (2003) 195 ALR 412 not followed - Plaintiff's appeal dismissed (174/2006 - SC - 19/12/2008) [2008] IESC 72

O'K(L) v H(L)

Facts: The appeal concerned the legal liability for sexual abuse of children and the vicarious liability of the State for the actions of teachers. The High Court had dismissed the appellants claim for damages against the defendant Minister where the plaintiff had secured an award of damages by default against the teacher who had perpetrated the abuse. The plaintiff had not sued the religious group who managed the school, the trustees of its property or its officials past or present. The issue arose as to whether a "close connection" or enterprise could be established as between the defendants so as to render the second defendant liable and whether the caselaw of other common law courts was of assistance to the development of the jurisprudence.

Held by the Supreme Court per Fennelly, Hardiman JJ (Murray CJ, Denham J. concurring); (Geoghegan J. dissenting), in dismissing the appeal, that the State had 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. There was no employment relationship between the first defendant and the second defendant. The Court had not been asked to overrule its existing caselaw. Per Hardiman J. It was unjust to impose liability on an individual solely as they had the ability to pay. The fulfilment of a constitutional duty to provide education was not an enterprise or business. The absence of direct control on the part of the Minister over the first-named defendant prevented a finding against him. It was significant that the Church authorities had not been sued. Per Geoghegan J. (dissenting) that there was sufficient connection between the State and the creation of the risk posed that the State would be liable. There was no direct precedent that could be relied on because of the unique relationship between Church and State in the context of education. It was wrong to exempt the State from vicarious liability in the case and the appeal would be allowed.

Reporter: E.F.

1

JUDGMENT delivered on the 19th day of December, 2008 , by Mr. Justice Hardiman.

General
2

Judgment delivered by Hardiman J. Murray C.J. concurring.

3

Judgment delivered by Geoghegan J.

4

Judgment delivered by Fennelly J. Murray C.J. concurring, Denham j. concurring.

5

The considerable importance of this case must excuse the length of this judgment and its occasional technicality. The plaintiff seeks a very great expansion of the scope of the vicarious liability of the tax payer for tortious and indeed criminal acts of an employee, in this case a teacher. This is sought even though the religious authorities who appointed and supervised the teacher have not been sued. In the judgment, the status of this claim in the existing law of vicarious liability is considered up to page 45, and it is concluded that there is no basis for making the State defendants liable. Thereafter, at pages 46-57 consideration is given to the plaintiff's claim that the law of vicarious liability should be dramatically changed, along lines suggested in particular by a decision of the Supreme Court of Canada. I would decline to do so. Indeed, as is discussed at p.67ff of the judgment, I consider that if so drastic a change were to be made, that should be done by the legislature and not by the Courts for the reasons there set out and summarised at pp.68/69. Reference is made to the reservations even of some members of the Canadian Supreme Court as to the social, let alone economic, effects of this broader basis of vicarious liability.

6

At pages 9 - 20, within the first section of the judgment, there is discussion of the very peculiar, probably unique, "managerial" system for the governance of many National Schools in Ireland. This is comprehensible only in a historical context which is summarised. Consideration is also given to the Constitutional provisions on education and their relevance to a claim such as the present.

7

This case raises difficult issues in the area of vicarious liability and Church/State relations. The plaintiff says that thirty-five years ago she was sexually assaulted by a teacher at school. The school was owned and run by a private religious group but was recognised by the State as a national school. The assaults took the form of inappropriate touching and feeling of her body. Many years later she sued the teacher and received a very substantial award of damages. But she has not been able to recover much if any of this from the now retired teacher. She has also made a successful claim to the Criminal Injuries Compensation Tribunal, but she is dissatisfied with the amount awarded (about €53,000). In the present action she claims that the Minister, the State and the Attorney General as their representative - that is the taxpayer - should compensate her for what happened. This would require an enormous revolution in the principles of vicarious liability as applied in Ireland.

8

The plaintiff has not sued the religious group who managed the school, the trustees of its property, or its officials past or present. She has sued the State defendants, claiming that they are liable to compensate her either directly or vicariously. The learned trial judge dismissed the allegations of negligence against the State and no appeal has been taken from this finding. The case is therefore one of alleged vicarious liability.

9

These defendants say that they are not liable. They did not own or run the school, or appoint the teachers. They did fund the management of the school, as mandated by the Constitution, and paid the teachers whom the religious officials appointed. They also laid down the academic syllabus (except in religious instruction) and inspected the secular instruction given. But they were excluded from the running of the school. That function had been conferred on the religious authorities, by long-standing legal arrangements brought about by a campaign by all the major religious bodies in Ireland, back in the nineteenth century.

10

The State does not assert that the Church authorities are liable to the plaintiff. The authorities know nothing of the facts of the case of their own knowledge. But they say that the Church authorities, by their own wish, manage and administer the school and select the teachers, to the exclusion of the Minister from these functions. The Minister is quite removed from the management and control of the school and staff by legal arrangements in place since before the State was founded. This is the so-called...

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