Vicarious Liability
Employment
O’Keeffe Case
The generally accepted basis on which vicarious liability is imposed has come to be known as “the Salmond test” after the distinguished academic of that name. This may be expressed as follows:
“An employee’s wrongful conduct must, to render the employer liable, fall within the course and scope of his or her employment. It will do this where it consists of either
(i) Acts authorised by the employer or
(ii) Unauthorised acts that are so connected to the acts that the employer has authorised that they may rightly be regarded as modes – although improper modes – of doing what has been authorised.
In the following paragraph of their text book, McMahon and Binchy go on to endorse what they see as a new and more acceptable theory of vicarious liability, by comparison with an older and (to them) less satisfactory one in the following words:-
“Historically speaking this example of strict liability can be traced to earliest times although its modern form in England dates from the end of the seventeenth century. It survived the ‘no liability without fault’ era, to some extent as an anomaly, but nowadays with the trend towards no-fault concepts it can be sustained by more modern justifications such as risk creation and enterprise liability. In other words, 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’.”
Broader than Employment
In any event, the learned authors of the work cited go on to quote with unqualified enthusiasm the majority judgment in this Court in Moynihan v. Moynihan [1975] 1 I.R. 192 in support of the proposition, at p.1092, that:
“Other instances of vicarious liability can arise, where the law will hold one person liable for the wrongs of another even though no formal legal relationship exists between the parties in question. Indeed, it seems that in Ireland a person may be vicariously liable whenever he or she has sufficient control over the activities of another.”
Moynihan’s case indeed goes to support the latter proposition. A small child was injured in her grandmother’s house, to which her parents had brought her, when she pulled down a pot of tea on herself. The tea had been made by her aunt who had then left the room to answer the phone. The trial judge in the High Court had granted a direction to the defendant, the grandmother, but the infant plaintiff was successful on appeal to this Court.
In all cases where there is a serious injury to an innocent person, there is a human tendency to wish that that person should be compensated. But the social and economic consequences of providing a law so flexible that it can be used to provide compensation in the absence of liability in the ordinary sense is addressed by Henchy J. in the same case at pp. 202 to 203:-
“Much as one might wish that the law would allow this plaintiff to recover damages from some quarter for the consequences of the unfortunate accident that befell her, the inescapable fact is that there is a complete absence of authority for the proposition that liability should fall on the defendant (who was innocent of any causative fault) rather than on Marie whose conduct is alleged to have been primarily responsible for the accident. I see no justification for stretching the law so as to make it cover the present claim when, by doing so, the effect would be that liability in negligence would attach to persons for casual and gratuitous acts of others, as to the performance of which they would be personally blameless and against the risks of which they could not reasonably have been expected to be insured. To transfer or extend liability in those circumstances from the blameworthy person to a blameless person would involve the redress of one wrong by the creation of another. It would be unfair and oppressive to exact compensatory damages from a person for an act done on his behalf, especially in the case of an intrinsically harmless act, if it was done in a negligent manner which he could not reasonably have foreseen and if – unlike an employer, or a person with a primarily personal duty of care, or a motor-car owner, or the like – he could not reasonably have been expected to be insured against the risk of that negligence.”
Moynihan v. Moynihan was, however, a one-off action by a child against her grandmother with no obvious or immediately direct social or macro-economic effects. This is not to say that it was entirely without such effects: in my view it represented a significant step on the road to the situation in which it is widely believed that every misfortune must be compensatable and that if misfortune is caused by an insolvent person, or an unascertained person, or a person not amenable, it should be compensated by the nearest solvent mark, or in the last resort by the State itself. In the present case the misfortune has in fact been compensated by the State, through the Criminal Injuries Compensation Tribunal, but the plaintiff is dissatisfied with the amount of such compensation.
Vicarious Liability Implications
It appears to me that the following observations can be made about tortious liability for an injury suffered by another:
(1) Such liability has consequences beyond the obligation to pay a cash sum. It is salutary to remember that a tortfeasor – joint or single, is referred to in the Civil Liability Acts as a ‘wrongdoer’ and the stigmatisation of the paying party as such is, in my view, legally and morally a condition precedent to an order to compensate for one’s own act. (See Civil Liability Act 1961, s.2)
(2) Apart from financial or reputational loss, the very possibility of tortious liability, and especially such liability on a strict or no-fault basis, constrains the legitimate actions of individuals, professions and other groups and even public authorities by what the American jurisprudence describes as a ‘chilling effect’. This, for instance, is said to have given rise to ‘defensive’ medicine and its equivalent in other fields.
(3) Unpredictable liability in tort creates huge social and economic problems including that of correctly estimating one’s insurance needs and of sudden unpredicted liabilities occurring which may be very damaging to an individual group or corporation, whether State run or otherwise.
(4) Vicarious liability is a form of strict liability which can be immensely burdensome on the party upon whom it is imposed. It cannot in my view 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, in the relevant area of behaviour, over the person for whom it is said to be vicariously liable.
Abusive Behaviour
In McCarthy v ISS Ireland Ltd (t/a ISS Facility Services) [2018] IECA 287, a supervisor was subject to abusive behaviour by two employees she supervised. It was sought to make the employee vicariously liable for their actions.
“I am not satisfied that as a matter of law the employer in this case can be held vicariously liable for the five individual acts which the plaintiff complained of. Each act does amount to a technical assault, given the aggressive way in which she was shouted at and abused, but I would not hold that these acts are committed in the course of the perpetrator’s employment in the sense in which that phrase should generally be understood …
In each of these incidents the employee in question simply spoke and behaved aggressively both verbally and to an extent physically but short of a physical assault as such, towards the plaintiff. Although the incidents happened while both were at work and in the work place, it was not behaviour committed in the course of employment. It is the sort of behaviour that would entitle the employer to invoke some form of disciplinary action, commencing perhaps with a warning, but it would in my view be stretching the concept of vicarious liability beyond its intended limit if an employer was to be found vicariously liable for every individual aggressive verbal outburst by one employee to another during the course of a day’s work, even where that outburst has caused distress and anxiety to its victim.”
Schools
The State was not liable for abuse by a teacher as it was not the employer and was not otherwise in a relationship of direct control stop the schools run by a school manager although the entire system was under the organisation of the State.
O’Keefe v Hickey [2009] 2 I.R. 302. Fennelly J.
“Ultimately, I am satisfied that it is appropriate to adopt a test based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made. That test, as the cases have shown, has enabled liability to be imposed on the solicitor’s clerk defrauding the client (Lloyd v. Grace, Smith and Company [1912] 1 A.C. 716); the employee stealing the fur stole left in for cleaning (Morris v. C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716) and the security officer facilitating thefts from the premises he was guarding (Johnson & Johnson (Ire.) Ltd. v. C.P. Security Ltd. [1985] I.R. 362). In each of these cases, the action of the servant was the very antithesis of what he was supposed to be doing. But that action was closely connected with the employment. In Delahunty v. South Eastern Health Board [2003] 4 IR 361, O’Higgins J., rightly in my view, held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.
By reason of the foregoing the first exercise which is to be carried out in deciding the present case is whether or not the Minister, the most directly involved of the State defendants, is in a relationship with the first-named defendant sufficient to make the Minister, and thereby the public purse, liable for his (Hickey’s) crimes and torts.
We have already seen, in the historical portion of this judgment, that the State involvement in the governance of national schools, for historical reasons, is indirect not to say oblique and general rather than particular. The role which the State might otherwise have occupied is, by their own urgent desire, occupied by the Churches and other voluntary bodies, in this case the Catholic Church.
Traditional Approach
For many years the common law world applied the test for vicarious liability taken from Salmond and Heuston’s work on torts in Salmond and Heuston on the Law of Torts (19th Edition., 1987) at pp. 521 to 522. This was applied in the Canadian case to be discussed below Bazley v. Curry [1999] 174 D.L.R. (4th) 45.
There, the rule is stated as follows:-
“An employee’s wrongful conduct is said to fall within the course and scope of his or her employment where it consists of either (1) acts authorized by the employer or (2) unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes – although improper modes – of doing what has been authorized: Canadian Specific Railway Company v. Lockhart, [1942] A.C. 591 at 599.”
Thus, in Ireland, in Williams v. Morrissey [1903] 37 I.L.T.R. 65 the defendant was held liable when his employee, who was driving his (the employer’s) cow threw a stone at the cow to divert the animal and hit the plaintiff. The classic limitation on this form of liability was when the employee went on what was somewhat quaintly described as ‘a frolic of his own’, though the cases on this topic were far from consistent.
It was, however, until recently almost universally considered that an employer would not be liable for a forbidden act, and in particular one amounting to a criminal offence. Thus, in the second, penultimate, edition of McMahon and Binchy’s work on torts, it is said at p.757:
“Although there is some authority for saying that the master’s prohibition forbidding the servant from acting as he did does not automatically exonerate the master from liability, the majority of Irish cases where the master’s prohibition was a factor have resulted in the Court holding that the servant acted outside the scope of his authority.”
Speaking generally on the topic of “conduct outside the scope of employment”, the same authors say at p.758:-
“If the servant acts outside the scope of his employment the master will not be liable. Sometimes it is said that, provided the servant is doing the kind of thing he is employed to do, then the master remains liable even if he does it improperly, but that the master is not liable if the servant is doing something different in kind from that which he is employed to do.”
It is scarcely necessary to say that sexually abusing a pupil is something quite different in kind from what a school teacher is employed to do.
On the same page the learned authors discussed the case of Lawlor v. O’Connor [1929] 63 I.L.T.R. 103. There a driver assaulted a third party by grabbing her and holding her on the running board of a moving truck, later dropping her without stopping. The authors comment:-
“The bizarre facts in this case may not make it very useful as a precedent, but it may indicate reluctance on the part of the Irish Courts to saddle the master with liability where the servant commits an intentional tort (or a crime) against the person of the plaintiff.”
Congregation
Hickey v McGowan [2014] IEHC 19, O’Neill J
“this meant that, in the 4th, 5th and 6th classes, the teacher had a great deal of contact with pupils, being with them for the entire school day. This necessarily implied that part of the duty of the teacher was to participate in the character formation of pupils, meaning that the teacher would be obliged to correct misbehaviour, to provideinstruction in appropriate or good behaviour where necessary, and generally to assist to ensuring that pupils developed into upright citizens. Given the length of time each day that pupils were in the care of a teacher, probably significantly longer than they were in the care of the parents on a daily basis, it was inevitable that a caring relationship would evolve between teacher and pupils which could also have involved a high level of one-to-one contact with individual pupils. Because of the tender age of the pupils, the teacher was invested with and would have been perceived to have a level of authority over the pupils which, to the pupils, would have seemed, certainly in the years 1969 to 1972, virtually absolute.”
“By way of contrast to illustrate this, one might say that a gardener engaged to attend the school grounds or a janitor to look after a school building, while having some access to the pupils and therefore opportunity, nonetheless would not have the kind of daily engagement with pupils that a teacher such as the second named defendant would have had with his pupils in his class. By way of further example, there is the decision of O’Higgins J. in Delahunty v. The South Eastern Health Board [2003] 4 I.R. 361, in which it was held that the necessary close connection was not established where the person abused was a visitor to the institution in question rather than an inmate of it.”
“It seems to me more realistic to view the brothers of the Province from time to time responsible for the area in which Market Weighton lies as members of the relevant unincorporated association rather than the Order as a whole, but I doubt if it makes any difference in principle. Because of the manner in which the Institute carried on its affairs it is appropriate to approach this case as if the Institute were a corporate body existing to perform the function of providing a Christian education to boys, able to own property and, in fact, possessing substantial assets.”
“the foregoing passage from the judgment of Lord Philips, and in particular the last quoted paragraph, could apply with little adaptation to the role of the Marist Brothers in this case. I find the reasoning of Lord Philips in this regard compelling and I adopt it as necessary to arrive at a just outcome of the litigation. To hold otherwise, as submitted on behalf of the first named defendant, that the Marist Brothers were merely an unincorporated band of individuals is to ignore the reality of their true collective identity, to ignore their common purpose, to which each member is committed individually and collectively on behalf of all of the Brothers; to ignore that, for the purposes of carrying out their mission, they necessarily acquire and manage property, no doubt held by trustees for the benefit of the congregation; that in their necessary commercial dealings with the world at large, for example, in employing lay staff, in effecting insurance policies, they must do so under the collective identity or personality of the Marist Congregation, albeit acting through trustees.
Having regard to all of this, is it right, when it comes to the issue of vicarious liability, that the well-known identity of the Marist Congregation can simply disappear into the sands of unincorporated association. I do not think so. In my opinion, the position of the first named defendant as Provincial of the Marists is to be seen, for the purposes of this litigation, as representative of the province of the Marist Congregation in which St. John’s National School was located, and I would follow the reasoning of Lord Philips in the CCWS case and hold that it is right to approach this case on the basis that the Marist Brothers were a corporate body existing to perform the function of providing a Christian education to boys and that the first named defendant is sued as a representative of that body, which is vicariously liable for the tortious acts of the second named defendant.”
Hospitals
Byrne v Ryan [2007] I.E.H.C. 2007
Kelly J. indicated that the hospital might have a primary, as well as vicarious, liability towards its patients.
“ health authority which so conducts its hospital that it fails to provide doctors of sufficient skill and experience to give the treatment offered at the hospital may be directly liable in negligence to the patient”.
“This quotation is cited as being illustrative of cases where a hospital may be found to have been in breach of its own primary duty of care to its patients. It is suggested that on the evidence in the present case no issue arises as to any alleged breach by the hospital of its primary responsibility to its patient and the only possible basis for a finding of liability against it is on the basis of vicarious liability in respect of the performance of the sterilisation. This is not correct. There was in my view a breach of the hospital’s primary duty to inform the plaintiff of the failure of the sterilisation so the question of vicarious liability does not arise on that issue. On the question of the failed sterilisation there was also in my view a breach of primary duty given the fact that the plaintiff was a public patient referred to the hospital and not to an individual consultant. Fortification for this view can also be had by reference to those parts of Dr. Murray’s contract which I have emphasised and in particular clause 5.3, 6.4.2 and 6.4.3 of the memorandum of agreement. Lest however I am wrong in this view I will deal with the question of vicarious responsibility for the failed operation.”
Kelly J.
“a health authority which so conducts its hospital that it fails to provide doctors of sufficient skill and experience to give the treatment offered at the hospital may be directly liable in negligence to the patient”.
“This quotation is cited as being illustrative of cases where a hospital may be found to have been in breach of its own primary duty of care to its patients. It is suggested that on the evidence in the present case no issue arises as to any alleged breach by the hospital of its primary responsibility to its patient and the only possible basis for a finding of liability against it is on the basis of vicarious liability in respect of the performance of the sterilisation. This is not correct. There was in my view a breach of the hospital’s primary duty to inform the plaintiff of the failure of the sterilisation so the question of vicarious liability does not arise on that issue. On the question of the failed sterilisation there was also in my view a breach of primary duty given the fact that the plaintiff was a public patient referred to the hospital and not to an individual consultant. Fortification for this view can also be had by reference to those parts of Dr. Murray’s contract which I have emphasised and in particular clause 5.3, 6.4.2 and 6.4.3 of the memorandum of agreement. Lest, however I am wrong in this view I will deal with the question of vicarious responsibility for the failed operation.”
Religious Orders
In Hickey v McGowan [2017] 2 I.R. 196, the Supreme Court considered vicarious liability for sexual abuse.
O’Donnell J.
“The decision that in principle a religious institution can be vicariously liable for the actions of a member of the order (and in particular sexual abuse) is undoubtedly novel. But once it is accepted that vicarious liability can extend to organisations and relationships other than that between employer and employee, then the size, impact and organisation of a religious order mean that it is not a large step to extend vicarious liability to such an order. Indeed, although the common law insisted upon viewing religions and religious orders (other than established churches) as nothing more than unincorporated associations, the degree to which a member of a religious order is subsumed into a collective entity is almost unique in society and involves a far closer connection with the other members than exists between the most enthusiastic member and a club or between the most loyal employee and an employer. As Charleton J. observes in his judgment, at para. 101, ‘the moral nature of the submission to religious vows, the duty of obedience, the unquestioning move from one teaching position to another and the strict nature of the obligation assumed within a religious order to accept direction show more than the employment relationship ever demands’. I do not therefore regard this development as an indicator of the law’s willingness to expand vicarious liability for such acts more generally. In particular the mere fact of voluntary association may not create the type of intense relationship that justifies imposing vicarious liability in the case of a religious order. Any such case would require a close analysis of the facts and the law.”