Ruffley -v- The Board of Management of Saint Anne's School,  IESC 33 (2017)
|Party Name:||Ruffley, The Board of Management of Saint Anne's School|
An Chúirt Uachtarach
The Supreme Court
Supreme Court appeal number: 2016 no 000024
 IESC 000
Court of Appeal record number: 2014 no 298
 IECA 287
High Court record number: 2011 no 3819 P
 IEHC 235
Úna Ruffley Plaintiff/Appellant
- and -
The Board of Management of Saint Anne’s SchoolDefendant/Respondent
Judgment of Mr Justice Peter Charleton, delivered on Friday 26th of May 2017
Of itself, bullying is not a tort. That obnoxious perversion of the ordinary human duty of give and take may, nonetheless, give rise to tortious liability. No overall theory of what constitutes a tort has yet emerged from the apparently random declaration of individualised wrongs that mark out the parameters of this area of law. Generally it is because people are expected to behave in a particular way in relation to matters under their control, or are required to organise their affairs so as to avoid harming others, or have a responsibility fixed at law towards those who act on their behalf, which mark out the individual principles upon which a series of disparate civil wrongs are based. As Professor Winfield in The Province of the Law of Tort (Cambridge, 1931) put the matter at page 32:
Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
Crime and tort had a common origin in the taking charge by an increasingly ordered society, through its judicial system, of private retribution for personal wrongs. In the formation of such rules defining liability, people were instructed through individual decisions as to how the rule of law would both replace individual reaction and place into the category of a wrong any attempt at repayment of one wrong by another. Historically, this began by giving civil as well as criminal remedies for wrongs to the person and this was later extended to a person’s reputation. The development of tort law has been piecemeal. Prior to the decision in Rylands v Fletcher (1868) LR 3 HL 330, issues as to the use or abuse of land were more properly an aspect of the duties and responsibilities of servient and dominant interests. Interference with contractual relations emerged out of the decision in Bowen v Hall (1881) 6 QBD 333, perhaps because in some circumstances it would be unjust to answer a claim of wrong with a no privity defence. In reaction possibly to the balance of influence as between the interests of society and the representation of employees, intimidation was recognised as a tort in Rookes v Barnard  AC 1129. Whereas up to Donoghue v Stevenson  AC 562, negligence was an element of tortious liability, thereafter it became a defined aspect of an overarching wrong subject only, it appears, to public policy limiting its application. So much did the tort of negligence apparently emerge as the answer to every plaintiff’s needs, pleaded as it has been as an alternative to every other defined wrong, this Court had to warn in the majority judgments in Cromane Seafoods v Minister for Agriculture, Fisheries and Food  IESC 6 that this tort has not dissolved the existing definitions of other wrongs or submerged them.
Inflicting illness by manipulating emotion
It was with the decision in Wilkinson v Downton  2 QB 57 that a joke in very bad taste, leading to the unfortunate plaintiff almost losing her reason and suffering obvious physical effects, could give rise to liability. A practical joke is of its nature designed to cause at least momentary amazement, if not shock, but, as in that case, it can go too far: so far that the law must find a remedy. Hence, as Professor Heuston comments at pages 32-33 of the classic 17th edition of Salmond on the Law of Torts (London, 1977):
The law of torts is not a static body of rules, but is capable of alteration to meet the needs of a changing society. One word of warning should be added. It is often rather hastily assumed that any desirable alteration in the law of torts must result in the expansion of the field of liability. But social needs may require contraction as well as expansion. Thus it can hardly be doubted that the courts have been justified in refusing to introduce new heads of tortious liability to enable a witness to be sued for perjury, or conspiracy to defame. Again a tort may be invented or discovered only to have little use made of it. So for a century little has been heard for excluding the plaintiff from a public office to which he is legally entitled.
No overall theory has emerged as to why the courts should develop a tort. In our system, it may be because a wrong under the Constitution has been committed, but only where no existing remedy will provide redress; as in Meskill v CIÉ  IR 121. Professor Fleming instances moral wrong as the foundation for liability in tort, morphing into the principle that there should be no liability without fault; C Sappideen and P Vines (editors), Fleming’s the Law of Torts, (10th edition, Sydney, 2011) at paragraphs 1.40-1.50. Professor Heuston comments that reasonable foresight has not come to be used as the overarching principle which it was once thought to be, while public policy has had a restraining influence in addition to the traditional analysis of the conduct of the defendant and the legitimacy of the interest of the plaintiff; see Salmond on the Law of Torts, cited above at page 33.
As O’Donnell J remarks in the principal judgment, the range of the expansion of tort liability and its extension into relationships at a distance from the conduct found to be at fault is part of the scheme of the law to order society. It is only on a careful analysis of the balance of not only where legitimate activity should be protected, but also where those who suffer in consequence of the wrongs of others should be compensated, that decisions as to redress for civil wrong develop. Hence, usual dangers such as flooding are tolerated in the tort of the escape of dangerous things; but the building of a repository for toxic gas will lead to a different decision on liability...
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