Exemption from vicarious liability by State is not just and appeal should be allowed


O’Keeffe -v- Hickey Ors

Decision of Mr Justice Geoghegan

Mr Justice Geoghegan said it was beyond argument that the State was not in a contractual relationship of any kind with the teacher in a national school, including the principal.

“It seems clear, on the authorities, that vicarious liability is not necessarily confined to the tortfearor’s employer in the contractual sense,” he added. He quoted McMahon and Binchy where they said there was good authority for saying that “within the scope of authority” was a phrase which must be interpreted liberally in favour of the injured plaintiff.

The issue was whether the State was so disconnected from the individual teacher, including a principal, that it cannot in any circumstances be vicariously liable for torts committed by those teachers.

He used the term “triangular pact” to describe the relationship between teachers, the school management and the State. “In my view, the correct principle to apply is that the State (as distinct from the church authorities) should be vicariously liable only for wrongs which, if discovered, would have inherently rendered the relevant principal or teacher, whose application has been sanctioned by the Minister, unsuitable to be retained.”

He examined in depth the relationship between the State and the school, quoting from the evidence given to the court by Prof Coolahan from NUI Maynooth and Mr McGleannain, a retired school inspector. From this evidence he concluded that “the inspector was there to report back to the department in the new state or the board in the old state”.

The evidence established that the State does have the right to impose very significant sanctions on teachers, including withdrawal of recognition, which could affect employment in other schools. Also, although the manager appoints a teacher, including a principal, that appointment is subject to the approval or sanction of the Minister or the department.

The plaintiff was only one of a number of children who were allegedly assaulted by the first named defendant. Nevertheless, it is accepted that no fault attaches to the department in the sense that it had no knowledge of the assaults.

Mr McGleannain had made it clear no complaint was ever made to him about Mr Hickey.

He had also stated that if such a complaint was made, it would be brought to the attention of the manager, and a report and recommendations would also be sent to the department. This could ultimately result in the withdrawal of recognition from the teacher.

He said this demonstrated that “the role of the department in relation to an ordinary national school goes way beyond merely paying the teachers’ salaries and ensuring that a curriculum is complied with”.

He also quoted at length from the Canadian jurisprudence, and then considered why the plaintiff had not sued the managerial authorities, the legal personal representatives of the deceased manager Canon Stritch, the deceased Bishop Lucey or the deceased Fr O’Ceallaigh.

Referring to the words of the judgment of McLachlin J in Bazley -v- Curry, he asked: “Does [the applicant] have ‘a just and practical remedy’? The relevant executor or administrator, if there ever was one, may be dead, therefore necessitating an application to the court for a special grant de bonis non. Where would the assets to meet such a judgment be?

“I think that in the circumstances of the relationship between church and state, as already explained in relation to this school, exemption from vicarious liability by the State is not just. In my view, there was quite sufficient connection between the State and the creation of the risk to render the State liable.

“This does not mean, of course, that relevant church authorities would not also be liable but they are not before the court.”

He added: “I am not entirely convinced that in this day and age the fact that a bishop/patron is not a corporation sole should necessarily preclude an action against the current bishop and execution against diocesan assets. But none of that arises here.”

Applying “the general modern principles underlying vicarious liability”, he allowed the appeal.

The full judgment is on www.courts.ie