Minister and State were distanced from management of the school


O’Keeffe -v- Hickey Ors

Decision of Mr Justice Hardiman

“A grievous wrong has been committed by a ‘man of straw’ who apparently cannot pay compensation. The plaintiff has not sued the religious authorities for whom the perpetrator worked. Can the State be forced to pay with public, that is, taxpayers’ money?” asked Mr Justice Hardiman.

Mr Justice Hardiman considered the law on vicarious liability, quoting from The Law of Torts by McMahon and Binchy, where it states: “The concept of vicarious liability has dovetailed nicely with the more modern ideas that the person who creates the risk, or the enterprise which benefits from the activity causing the damage, should bear the loss. Such persons or enterprises are in a good position to absorb and distribute the loss by price controls and through proper liability insurance. Liability in these cases should, it is felt, follow ‘the deep pocket’.”

Mr Justice Hardiman disagreed, stating, “I do not consider that companies, institutions or even the State itself are necessarily to be considered in a different light than an individual”.

He observed that tortious liability for a wrong suffered by another has consequences beyond the obligations to pay a cash sum, including the stigmatisation of the person found liable; the very possibility of tortious liability constrains the legitimate activity of individuals, professions and other groups by what is known as a “chilling effect”; and unpredictable liability in tort creates huge social and economic problems.

Vicarious liability is a form of strict liability which can be immensely burdensome on the party on whom it is imposed, he said. and it cannot justly occur at all except in a situation where the paying party said to be vicariously liable has a real and actually exercisable power of control over the person for whom it is said to be vicariously liable, Mr Justice Hardiman stated.

The Minister and the State were distanced from the management of the school and the control of the first-named defendant, as a result of the long-established system of education in operation in the State.

“I have no doubt that the Minister and the other State defendant are not liable to the plaintiff for the actionable wrongs committed against her by the first-named defendant. I would therefore dismiss the appeal,” he said.

Mr Justice Hardiman then went on to discuss the law on vicarious liability in other jurisdictions, in the light of arguments made to the court that the Irish law should follow it.

“I consider that if the law is to be altered as suggested, that should properly be done by the legislature and not the courts,” he said.

Referring to the Bazley case, he said it found that liability could be imposed on an employer who was not blameworthy “because policy considerations of compensation and deterrence may justify the imposition of no fault liability. This is a perfect example of Henchy J’s concept of the redressing of one wrong by the creation of another,” he said.

He also referred to the Lister case and concluded that “the Canadian Court and those who followed its decision were so greatly influenced by the felt need to find a basis to pay compensation for sexual abuse that they departed from anything resembling a coherent legal principle grounding vicarious liability.

“Not only that, but those who followed it in other jurisdictions also paid too much heed to the need to find a source of compensation even without principle, and too much heed to the need as they perceived it for the common law jurisdictions to march together.”

However, he said in conclusion that his views on the Canadian and other cases were not central since, even if they were to be established here, the Minister’s absence of direct control over the first-named defendant prevented a finding against him.

The full judgment is on