Vicarious Liability
Cases
Parkes v The Minister for Finance and O’Brien
The Circuit Court
29 June 1978
[1979] 113 I.L.T.R 118
Judge Martin
June 2 and 29, 1978
Judge Martin referred to the facts of the case and continued as follows:—
From a reading of the authorities under the Workmen’s Compensation Acts it is clear that an employee was held not to be acting in the course of his employment unless the facts showed that he was engaged in the performance of a duty under his contract of service when the accident happened. Similarly, in the present case an official driver of a vehicle belonging to the State is not the servant of the Minister for Finance for the purposes of s. 59 of the Civil Liability Act, 1961, unless, at the time of the accident he was doing something which he was employed to do. The official driver must have been doing something at the time which was part of his duty and part of his service. In this case the evidence shows that, during his hours of work the official driver was faced with an emergency of a domestic nature. He was unable to make use of his own motor car and having taken the official van without permission he was driving the van home at the time of the accident when it was not part of his duty or service to do so. He was driving purely in a private capacity. Accordingly, I dismiss the claim as against the first named defendant and I will give a decree for the agreed sum of £454 damages against the second named defendant.
Kelly v Lombard Motor Company Limited
[1974] IR 142
KENNY J. :
4 May
In this action the plaintiff claims damages for injuries which she suffered on the 24th December, 1967, when she was a passenger in a motor car owned by the defendants and driven by Patrick O’Donnell. The defendants admit that they owned the motor car and that O’Donnell was careless but say that they are not liable to compensate the plaintiff because O’Donnell had obtained possession of the car from them by fraud and so was not using it with their consent.
In December, 1967, Patrick O’Donnell was working in England and had decided to return to Galway for the Christmas holidays. He had not a driving licence issued in Ireland or in Britain and he wanted to hire a car for the holidays. He knew that the companies in Dublin which hire cars required the production of a driving licence by a person who wished to hire a car from them, and so he got possession of one which had been issued in the Republic of Ireland to Michael Kelly who was then in England and was a friend of his. Some time afterwards, Matthew O’Donnell, who was also in England and who wanted to hire a car from the defendants, telephoned them and, when his conversation had finished, Patrick O’Donnell told the defendants that he was Michael Kelly and asked them to keep a car for him. On the 16th December Patrick O’Donnell called to the offices of the defendants in Dublin and said that he was Michael Kelly and produced Kelly’s licence.
The defendants had an arrangement with the Irish National Insurance Company Ltd. by which the defendants are insured against their liability in connection with the negligent driving of any cars on hire from them and under which they can allow the person seeking to hire a car to drive it at once without reference to the insurance company, provided that such person produces a valid driving licence. Patrick O’Donnell answered questions put to him and the information was entered on a form headed “Irish National Insurance Company Limited.” He gave the hirer’s name as Michael Kelly and his address in London and stated that he had a private car insurance certificate. He also stated that he had a driving licence and its number is on the form. Patrick O’Donnell then signed the form with the name of Michael Kelly, he was given the car and drove it away. Each of these statements was fraudulent. Patrick O’Donnell had never had a driving licence in any country.
Counsel for the defendants said that O’Donnell’s fraud vitiated the consent to drive which they gave; while counsel for the plaintiff argued that the defendants had given their consent to the car being driven by the person whom they saw on the 16th December. No authorities were cited by either side.
At common law the owner of a motor car is liable for the negligence of the person driving it if that person is his servant acting in the course of his employment, or if that person is his agent. The driver is regarded as the owner’s agent when the driver, with the owner’s consent, is driving the car on the owner’s business or for the owner’s purposes. Mere consent by the owner of a car to another person driving does not make the driver the servant or agent of the owner: Hewitt v. Bonvin 1; Ormrod v. Crosville Motor Services Ltd. 2; and Rambarran v.Gurrucharran. 3
When insurance against negligence in the driving of a motor vehicle was made compulsory by the Road Traffic Act, 1933, the law was changed by s. 172 of that Act. It provided that whenever a person drove a mechanically propelled vehicle with the consent (whether expressed or to be implied from the circumstances) of the owner, the person driving should, for the purposes of determining the liability of the owner for injuries caused by the negligent driving by such person, be deemed to drive the vehicle as the servant of the owner, but only in so far as the person driving acted in accordance with the terms of the consent. This section was repealed by the Road Traffic Act, 1961, which provides in s. 118 that: “Where a person (in this section referred to as the user) uses a mechanically propelled vehicle with the consent of the owner of the vehicle, the user shall, for the purposes of determining the liability or non-liability of the owner for injury caused by the negligent use of the vehicle by the user, and for the purposes of determining the liability or non-liability of any other person for injury to the vehicle or persons or property therein caused by negligence occurring while the vehicle is being used by the user, be deemed to use the vehicle as the servant of the owner, but only in so far as the user acts in accordance with the terms of such consent.”
The defendants consented to the person whom they thought was Michael Kelly driving the car because they believed that he had a valid driving licence. The defendants would not have been insured against their liability in connection with the driving of the car if the person to whom they hired it had not a driving licence. On principle it seems to me that a fraudulent mis-statement made at the time of the hiring would prevent the apparent consent which was given being effective only if it procured the consent and if it related to the matter of identity in such a way that, if the defendants had known the true facts, they would not have given their consent. The identity of the person hiring the car mattered nothing to the defendants but his possession of a driving licence did matter because they were insured against their liability only if the person hiring the car had a driving licence.
This approach gets support from the law in relation to the type of fraud which invalidates the apparent consent which is the foundation of the marriage ceremony. Fraud is a ground for annulling a marriage, but only when it procures the appearance without the reality of consent. A marriage cannot be annulled on the ground that the consent was induced by fraud unless it relates to the identity of the person getting married. Swift v. Kelly 4is a decision of a Privy Council which included Lord Brougham and Baron Parke and so is of the highest authority. It was a suit brought by a husband for the restitution of conjugal rights. The husband and wife were Irish and, when they were in Rome both abjured the Protestant religion and became Roman Catholics. They obtained a licence to marry from the Vicar General of Rome and were then married by a Roman Catholic priest. The wife alleged that she never intended to abjure the religion to which she belonged and that her marriage was therefore invalid because the person who gave the licence and the priest who celebrated the marriage believed that she had become a Roman Catholic. The Court of Arches decided that there was not a valid marriage but this decision was reversed by the Privy Council. In the course of the advice given by Lord Brougham this passage appears at p. 293 of the report: “It should seem, indeed, to be the general law of all countries, as it certainly is of England, that unless there be some positive provision of statute law, requiring certain things to be done in a specified manner, no marriage shall be held void merely upon proof that it had been contracted upon false representations, and that but for such contrivances, consent never would have been obtained. Unless the party imposed upon has been deceived as to the person, and thus has given no consent at all, there is no degree of deception which can avail to set aside a contract of marriage knowingly made. If such be the law touching consent to the marriage itself, and the fraud whereby that consent was obtained, it would be extraordinary indeed if another rule were allowed to govern the case where fraud has been practised upon a third party, acting immaterially in granting the license to celebrate it.”
The apophthegm “fraud vitiates consent” has also been applied in the criminal law. When the criminal act charged consists of trespass to the person or to property, the consent of the person injured is a complete defence; but the consent must be by a person who knows the nature of the act to which he is consenting and fraud as to that or as to the identity of the person doing it vitiates the consent: R. v. Case. 5
It seems to me that the consent in this case by the defendants to the driving of the car was given to a person who held a driving licence. There was never a consent to a person driving the car who did not have a licence and, therefore, the defendants did not consent to Patrick O’Donnell driving the car. They gave their consent to a Michael Kelly, the holder of a driving licence, driving the car. The result is that the defendants did not consent to Patrick O’Donnell (or to Patrick O’Donnell masquerading as Michael Kelly) driving the car and so the defendants are not liable to the plaintiff.
Johnson Johnson (Ireland) Ltd v C.P. Security Ltd
High Court
15 November 1985
[1986] I.L.R.M. 559
(Egan J)
EGAN J
delivered his judgment on 15 November 1985 saying: The plaintiffs are a limited liability company which carries on business at Tallaght, Co. Dublin, as manufacturers and retailers of pharmaceuticals.
The defendants are a limited liability company which carries on the business of providing specialist security protection for third parties.
Discussions took place between representatives of the parties culminating in an offer by the defendants of a security service in respect of the plaintiffs premises. This offer, which was orally accepted by the plaintiffs, is contained in a letter from the defendant company to the plaintiff company dated 9 October 1980. The letter sets out, inter alia, that the security officers function is to prevent break-in, theft, fire, malicious damage, trespass. The plaintiffs had also been given promotional literature by the defendants but nothing of any particular note is contained in it.
A few complaints were made by the plaintiffs in the earlier half of 1983 in relation to particular guards employed by the defendants e.g. being found asleep on duty and failure to make calls to base. I am satisfied on the evidence that these complaints were justified but they are not directly relevant to the particular issues in this case.
Around the beginning of July 1983 the plaintiffs became aware that some of their products were being marketed in Dublin through unauthorised channels and they became suspicious that these goods were being stolen from their premises and that a man named John Neeson could possibly be involved. John Neeson was a man who had been employed by the defendants as a security officer and he had often been on duty at the plaintiffs premises from the year 1982.
The plaintiffs suspicions in regard to Neeson were communicated to Mr Michael Fenton, managing director of the defendant company on 11 July 1983. Mr Fenton suggested that Neeson could be taken off duty in so far as the plaintiffs premises were concerned but Mr Normile, personnel manager of the plaintiff company, was not in favour of this as they were uncertain as regards any involvement by Neeson and also had suspicions that their own employees could possibly be involved. The crime prevention office was contacted and a detective agency was also employed. Representatives of the plaintiffs were also *561 involved in surveillance but nothing was detected until the early hours of 18 August 1983. On that occasion a man named Patrick Murphy driving a van was admitted to the plaintiffs premises by Neeson who opened the warehouse for him. Murphy was accompanied by two other men and they loaded the van with various products.
Neeson and Murphy were subsequently sentenced to imprisonment and Murphy gave evidence in this case which I fully accept. He stated that on 8 to 10 occasions prior to that similar thefts had occurred with the assistance of Neeson. He was uncertain as to dates but the general effect of his evidence would suggest that the first theft occurred about the middle of May 1983.
The defendants deny liability for the acts of their servant. I am fully satisfied on the evidence that prior to employing Neeson some years previously proper enquiries had been made into his background, working history and reliability with nothing to indicate a capacity for dishonesty. They had no reason to alter their opinion in this regard until suspicions were conveyed to them on 11 July 1983 in relation to him. They rely on Cheshire v Bailey [1905] 1 KB 237 as still being the law in Ireland. In that case the plaintiff had hired a brougham for driving the plaintiffs traveller around London with samples of the plaintiffs wares. On one occasion (when the traveller had left the brougham temporarily) the defendants coachman drove in to a place where some of the samples were stolen by confederates of the coachman. It was held that the defendant was not responsible for the criminal act of his servant, the same not having been done within the scope of his employment. In a later case it was unfairly suggested that the decision in Cheshire v Bailey could have been influenced by the fact that many judges at the time of the decision had coachmen in their employment.
No modern Irish authority was cited to the court but it is reasonably clear that Cheshire v Bailey is no longer regarded as good law in England. In the case of Lloyd v Grace Smith Co [1912] AC 716, a widow instructed the defendants (a firm of solicitors) managing clerk to sell some cottages owned by her. Unknown to her the documents she executed constituted a conveyance to the clerk himself who then dishonestly disposed of the property for his own benefit. The House of Lords held that the firm was liable for the dishonesty of their employee. One of the judges suggested that a fidelity insurance policy could off-set the hardship on employers but this, in my opinion, only begs the question so far as liability is concerned. It was disclosed in the course of the evidence in the present case that a limited insurance cover existed but this appears to me to be irrelevant.
Other English authorities were cited to which I do not consider it necessary to refer. The only exception is the case of Morris v C. W. Martin Sons Ltd [1965] 2 All ER 725 in which the court makes it abundantly clear that Cheshire v Bailey cannot be regarded as good law or reconciled with Lloyd v Grace Smith Co. Lord Denning refers to the fact that the Lloyd case revolutionised the law by holding that a master was liable for the dishonesty or fraud of his servant, no matter whether it was done for the benefit of the master or the servant provided it was done in the course of his employment. As to what is meant by in the course of his employment he says that the cases are baffling. He summarises as follows: *562
If you go through the cases on this difficult subject, you will find that in the ultimate analysis they depend on the nature of the duty owed by the master towards the person whose goods have been lost or damaged. If the master is under a duty to use due care to keep goods safely and protect them from theft or depredation, he cannot get rid of his responsibility by delegating his duty to another. If he entrusts the duty to his servant, he is answerable for the way in which the servant conducts himself therein. No matter whether the servant be negligent, fraudulent, or dishonest, the master is liable. But not when he is under no such duty (at p. 730).
Lord Denning, it will be seen, stated that some of the cases were baffling and I would be cautious in committing myself to a completely general proposition that a master would in every conceivable circumstance be held vicariously liable for the tort or criminal act of his servant committed in the course of his employment. I have no hesitation, however, in accepting that the principle of vicarious liability must apply in the present case where the employers were specifically engaged to safeguard the plaintiffs property.
It has been submitted that the plaintiffs failed to minimise their loss in certain respects:
(a) they failed to agree to the suggestion which was made on 11 July 1983 that Neeson should cease to work on the premises. I accept, however, the reasons given by the plaintiffs for not agreeing with this.
(b) they failed to carry out full stock checks during the period when their suspicions were aroused but continuing such checks, however, would have achieved little beyond confirming their suspicions.
As regards damages, it is quite impossible to say with certainty what goods were stolen as a result of Neesons dishonesty or what was their value and I can only approach the question of damages as a matter of probability. Doing the best I can, I have come to the conclusion that about 10 van loads were stolen from the premises at an approximate replacement value of 4,000 each. I entirely reject the argument that the goods should be valued at the prices which the plaintiffs could have sold them for profit. They had vast quantities of goods in their possession to meet existing orders and those which were stolen could have been replaced at cost without any difficulty.
The plaintiffs also incurred the following items of expenditure:
(a) Payment for information in regard to thefts
2,850
(b) Services of a detective
4,754
(c) Replacing locks
2,066
9,670
This expenditure was, in my view, unreasonably high but I will allow a sum of 8,000 as representing reasonable expenditure.
I find, therefore, that the plaintiffs suffered a loss of 48,000. I am also satisfied that some interest should be allowed. It does not appear that the plaintiffs lost any real business profits as a result of the thefts but evidence of a vague nature was given that their bank accounts were in debit. The extent of the debits were unspecified and there was no evidence as to whether or not they enjoyed tax benefits as a result of the debits. I take the view that they are entitled to interest on the 8,000 and to some interest on the 40,000. Doing the best I *563 can on unsatisfactory evidence, I will assess interest at 5,000 to date.
There will be a decree, therefore, for 53,000 and costs.
Moynihan v. Moynihan
[1975] IR 192
O’Higgins C.J.; Walsh J. 192
S.C.
O’Higgins C.J.
29th July 1975
I have read the judgment of Mr. Justice Walsh and I agree with it.
Walsh J.
The infant plaintiff was born on the 11th October, 1968, and her accident occurred on the 10th November, 1970. The defendant is the paternal grandmother of the infant plaintiff. The defendant was the owner and occupier of the house where the accident occurred and in which the defendant resided at Victoria Road in the City of Cork. The defendant’s adult daughter, Marie, resided with her in the house on the relevant date and no domestic servant was employed by the defendant. The only other person residing in the house was another daughter, Anne, and both she and Marie were in employment in Cork and resided with their mother, the defendant. These two daughters shared the domestic work in the house with their mother.
The father of the plaintiff, a son of the defendant, had lived abroad with his wife and the plaintiff and had returned to Ireland only about two weeks before the date of the accident out of which this action arises; they then resided in Cork with the parents of the plaintiff’s mother. Prior to the date of the accident the plaintiff’s parents had visited the house of the defendant but had not been there for a meal. On the date of the accident the plaintiff’s father and mother and the plaintiff were invited by the defendant for an evening meal which was served in the breakfast-room which opened off the kitchen of the house. The evening meal, which consisted of dinner, was at about 6.30 or 7.00 p.m. and those present were the defendant, who sat at the head of the table, her two daughters (Marie and Anne), the plaintiff’s father and mother, and the plaintiff. It was proposed to have tea after the meal, but before that the dishes used at the dinner were cleared off the table and brought to the kitchen. The tea was to be served at the table in the breakfast-room where the meal had been served. Before the tea was served Anne went upstairs, the plaintiff’s father left the house, the plaintiff’s mother went into the kitchen to wash the dishes and the defendant went in to dry them; Marie went to make the tea. During the dinner the plaintiff was present in the breakfast-room and was seated at the table.
When Marie had made the tea, she brought it into the breakfast-room and put the teapot upon the table there; at that time the plaintiff was in the breakfast-room. The telephone rang and that caused Marie to leave the breakfast-room to go into the hall to answer the telephone and, at that stage, the only person in the breakfast-room was the plaintiff. This is the account given in evidence by Marie. The evidence of the plaintiff’s mother is also to the effect that the plaintiff was in the breakfast-room immediately before the accident. The plaintiff’s mother said that the plaintiff was over in a corner of the breakfast-room playing quietly. The defendant did not give evidence.
Therefore, there is evidence from which the jury could have held that the plaintiff was in the breakfast-room at the time the teapot was placed on the table. The teapot was placed in what Marie described as @”the usual position”# but, whatever position it was placed in, it was placed in one which was within the reach of the plaintiff, because it appears from the evidence that the plaintiff went over to the table when Marie had left the room (and when nobody else was in the room) and succeeded in pulling down the teapot on top of herself and caused most serious burns to her body. There was evidence from which a jury might hold that, although the plaintiff’s mother was in the kitchen washing the dishes which the defendant was drying, the communicating door between the kitchen and the breakfast-room was such that the plaintiff’s mother, if she had looked, would have had a view of the plaintiff in the room and would have observed that she was alone in the room with the teapot on the table. It was suggested that this is what the plaintiff’s mother ought to have done when the telephone rang, that it would have alerted her attention to the fact that somebody had to answer it and that it was Marie who left the room to answer it and thereby left the plaintiff alone.
These were all matters which the jury would have had to consider if the case had been left to the jury, but the learned trial judge withdrew the case from the jury on the application of counsel for the defendant. The case was withdrawn from the jury on the grounds that there was no evidence upon which a jury could reasonably hold that the defendant was liable. The action against the defendant was brought for negligence on her part and on the basis of vicarious liability for the alleged negligence of her daughter, Marie. It is the latter aspect of the case which falls to be considered in this judgment.
Therefore, the first question to be considered is whether on the evidence a jury could hold that Marie was negligent. If the jury had found, as in my view they could have found, that Marie put a teapot with freshly-made tea in a position on a table which was within reach of a two-year-old child and then left the room, leaving the child alone in the room, it would be open to a jury to hold that Marie was negligent. It is not the law that, in the circumstances of the case, the mother of the plaintiff was the only person who had to watch out for the plaintiff’s safety or who owed her a duty to take care.
The next question is whether the defendant is vicariously liable for the negligence of her daughter Marie, if she was negligent. If the person who left the teapot on the table, in the circumstances already outlined, had been a domestic servant or other employee of the defendant, there could be no doubt about the defendant’s vicarious liability for the negligence, if established, of that person. The question to be decided is whether, in the circumstances of the case, the relationship between the defendant and her daughter Marie was sufficient to make the defendant vicariously liable for the negligence alleged against Marie.
If the defendant had put the teapot there herself, she could have been found guilty of negligence and the case would not depend on whether or not she was the occupier of the premises in question or whether the child was or was not an invitee: see Purtill v. Athlone U.D.C. 5 In my view the present case turns upon the position of the defendant as the person extending hospitality to the child.
The defendant invited to her house for dinner the plaintiff and her parents. As the evidence shows, the defendant was the owner and occupier of the house and was the head of the household. She had two daughters employed outside the household but who resided with her and assisted her in the domestic chores. One of the domestic duties on the day in question was the giving of this dinner; in the service of this meal the daughter Marie, apart from whatever other duties may have been assigned to her, was given or permitted the task of making the tea and putting the teapot upon the table. The negligence attributed to Marie was not the casual negligence of a fellow guest but may be regarded as the negligence of a person engaged in one of the duties of the household of her mother, the defendant, which duties were being carried out in the course of the hospitality being extended by the defendant. The nature and limits of this hospitality were completely under the control of the defendant, and to that extent it may be said that her daughter Marie in her actions on this occasion was standing in the shoes of the defendant and was carrying out for the defendant a task which would primarily have been that of the defendant, but which was in this case assigned to Marie. As the defendant was the person providing the hospitality, the delegation of some of that task to her daughter Marie may be regarded as a casual delegation. Marie’s performance of it was a gratuitous service for her mother. It was within the control of the defendant to decide when the tea would be served and where it would be served and, indeed, if it was to be served at all. It was also within the control of the defendant to decide how it would be served.
This power of control was not in any way dependent upon the relationship of mother and daughter but upon the relationship of the head of a household with a person to whom some of the duties of the head of the household had been delegated by that head. The position would be no different, therefore, from that of a case where the head of a household had requested a neighbour to come in and assist in the giving of a dinner-party because she had not any, or not sufficient, hired domestic help. It would produce a strange situation if in such a case the @”inviter”# should be vicariously liable for the hired domestic help who negligently poured hot sauce over the head of a guest but should not be equally liable for similar negligence on the part of the co-helper who was a neighbour and who had not been hired. In my view, in the latter case the person requested to assist in the service, but who was not hired for that purpose, is in thede facto service of the person who makes the request and for whom the duty is being performed.
Most, if not all, of the cases of gratuitous service in respect of which a vicarious liability has been imposed upon the person for whom the service is performed relate to motor cars, but these cases confirm the view that, even if the doctrine of vicarious liability depends upon the existence of service, the service does not have to be one in respect of which wages or salary is paid but may be a gratuitous service or may simply be a de factoservice. For example, in the present case if the defendant had requested or permitted her daughter Marie to drive the plaintiff home in the defendant’s motor car and the plaintiff had been injured through Marie’s negligence, there would have been no doubt about the vicarious liability of the defendant. It may well be, as has been suggested by one noted writer, that the fact that this imposition of vicarious liability has apparently been confined to motor-car cases is because it was developed as a means of reaching the insurance company of the owner of the car. Whatever may be the reasons for the development of the doctrine in a particular area, the reasons cannot mask the basic principle of law involved.
In my view, on the evidence so far adduced in the present case, the necessary element of control was vested in the defendant and her daughter Marie was in the de facto service of the defendant for the purpose of the act in which Marie was alleged to be negligent. If further or other evidence should indicate that the household was a joint one and that the defendant and her two daughters were engaged in a joint enterprise and were offering joint hospitality, then different considerations might arise; but it is not at this stage necessary to express any view whether in such a case persons engaged in such a joint enterprise would be vicariously responsible for each other.
In my view, the learned trial judge was wrong in withdrawing the case from the jury on the ground that in law the defendant could not be held vicariously liable for the act of negligence alleged against her daughter Marie. I would allow the appeal and direct a new trial.
Henchy J.
The plaintiff is a little girl who suffered a serious accident in 1970 when she was two years old. She had been born abroad and her parents had only just returned with her to Ireland. In October, 1970, the defendant, who is the mother of the plaintiff’s father, invited the plaintiff and her parents to the defendant’s house in Cork for an evening meal. Although they had visited the house previously, it was the first time they had been there for a meal.
The defendant is a widow who was living with two adult daughters, Anne and Marie. On the day of the visit, the evening meal was as usual taken in the breakfast-room which had one door leading to the kitchen and another leading to the hall where there was a telephone. When the meal was finished, Anne went upstairs and the plaintiff’s father went out to a shop for a message; there were left sitting at the table the defendant, the plaintiff’s mother, Marie and the plaintiff. It was the custom of the house at the end of the evening meal for someone to carry the used dishes to the kitchen to be washed, and for someone to make tea. On this evening the plaintiff’s mother and the defendant undertook the chore of washing and drying the used dishes and Marie set about making the tea. The plaintiff followed her mother into the kitchen but soon returned to the breakfast-room. When Marie had made the tea, she carried the teapot to the breakfast-room and placed it on the table at about four to six inches from the edge of the table; she then put a vividly-coloured tea cosy over the teapot.
At this stage the plaintiff’s mother was at the kitchen sink washing the dishes and the defendant was beside her drying them. From there the plaintiff’s mother could see, by reason of the open door, the plaintiff playing on the floor at the far side of the breakfast-room, with the table in between. Marie had just placed the brightly-coloured tea cosy over the teapot when the telephone rang in the hall; she went hurriedly from the breakfast-room to the hall to answer the telephone, leaving the plaintiff alone in the breakfast-room. The last view her mother had of the plaintiff before the accident showed her playing quietly on the floor on the far side of the breakfast-room from the kitchen, with the table in between. No sooner had Marie left the room to answer the telephone than she heard a scream from the breakfast-room. Running back in, she found that the plaintiff, probably allured by the brightly-coloured tea cosy, had managed to overturn the teapot of hot tea over herself. The plaintiff was badly scalded and unfortunately her injuries have turned out to be seriously disfiguring and incapacitating.
The plaintiff’s advisers have chosen to sue the plaintiff’s grandmother rather than the plaintiff’s aunt Marie; the claim is founded on an allegation that the defendant was negligent, through her agent Marie, in leaving the plaintiff unattended in the breakfast-room when it ought to have been anticipated that she would be allured to and injured by the teapot of hot tea. When the action came on for hearing in the High Court before Mr. Justice Murnaghan and a jury, counsel for the defendant applied at the close of the plaintiff’s case to have the case withdrawn from the jury on the ground that it would not be open to the jury, on the then state of the evidence, to find that the defendant was negligent, Having heard legal argument, the judge was persuaded that the submission of counsel for the defendant was correct; and thereupon the judge directed the jury to find for the defendant. This appeal is taken from that decision.
The first question to be considered is whether, even if Marie was negligent, the defendant could be held liable for that negligence. For the purpose of dealing with this question I assume that, in making and serving the tea, Marie was acting for her mother, the defendant, and that the jury would have so found if that point had been put to them as a question. On that assumption, counsel for the plaintiff submits that what Marie did in connection with making and serving the tea was done as the defendant’s agent; that there fell within the scope of that agency the negligent sequence of leaving the teapot on the table within reach of the child and then leaving the child unattended in the room when Marie went out to answer the telephone; and that for that negligence the defendant could have been held liable by the jury.
Behind this submission is the large implication that when a person chooses to do an act for another at his request or with his consent, that other becomes liable for any negligence committed in doing that act. In the present case it would seem that, if the defendant had received and accepted an offer from the plaintiff’s mother to make and serve the tea on the defendant’s behalf, and if the plaintiff’s mother in doing so had acted as Marie did, the defendant would be liable for the negligence of the plaintiff’s mother. One’s first reaction to the sweep of this submission, which implies a vicarious liability for negligence in the countless acts of that kind that are done in the course of the daily round, is that one would expect to find many cases illustrating the operation of such a rule. Yet, counsel for the plaintiff is unable to put forward any case in support of his proposition. He relies instead on the maxim qui facit per alium facit per se,and he says that the defendant is liable on the simple basis that the act of negligence was committed by her through her agent, Marie.
I am satisfied that the maxim qui facit per alium facit per se has no application in this case, for in the law of tort it is referable only to circumstances where a person has authorised or procured the commission of a specific tortious act by another, in which case the principal is just as liable as if he had committed the act himself. The maxim does not apply in a case such as this where the tortious act complained of has not been specifically authorised, but arose incidentally in carrying out an authorised act.
Therefore, since it was conceded both in the High Court and in this Court that Marie was not the servant of the defendant, the plaintiff’s case falls back on the proposition that the defendant is liable on the ground of agency. If, as I am prepared to assume, Marie was bringing in the tea at the tacit request of the defendant and on her behalf, it must be agreed that Marie was acting as the defendant’s agent when the act of negligence took place. But Marie was the defendant’s agent only in a very general sense, and Marie would have to be fitted into the more specific category of agency that is required for vicarious liability in the law of torts before the defendant could be held liable for Marie’s negligence.
While Marie may be said to have been acting for the defendant when the act of alleged negligence was committed, she was not acting under any contract of service so as to be the defendant’s servant, nor under any contract for services so as to be an independent contractor. She was simply a gratuitous obligor or undertaker who was carrying out an ordinary household chore on behalf of the defendant. As such, liability for Marie’s negligence could not fall on the defendant any more than if Marie had been an independent contractor, such as a caterer employed for the occasion. If Marie had been an independent contractor, responsibility for her negligence could have passed to the defendant as her employer only if the act of negligence arose in circumstances in which it could be said that the defendant herself was in breach of a duty owed by her to the plaintiff, e.g., a duty imposed by statute or a duty, because of the inherently dangerous nature of what was to be done, to see that care was taken. This was not such a case. If a permissible inference from the facts is that the defendant allowed Marie to make a pot of tea and to bring it into the breakfast-room, there were no special circumstances capable of taking that commonplace delegation of a normally harmless household chore out of the general rule that the negligence of an independent contractor or a gratuitous obligor does not fall on the employer or the person benefited.
The general rule was stated by Dixon J. (as Sir Owen Dixon then was) in Colonial Mutual Life Assurance Society Ltd. v. Producers and Citizens Co-operative Assurance Co. of Australia Ltd .6 as follows:
@”In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort. The work. although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore. identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.”
The exceptions to the general rule are to be found in cases where a primary dutyarising either under statute or at common lawrests on the defendant to take a particular precaution and there has been a breach of that primary duty. In Cassidy v. Ministry of Health 7, Denning L.J. said at p. 363 of the report:@”I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.”# Denning L.J. was there referring to cases of personal or non-delegable duty of care.
Here the act of negligence, if negligence it was, cannot be viewed as the breach of a primary duty resting on the defendant. It was a collateral or incidental act of negligence on the part of a person who was a gratuitous helper (and not a servant or an independent contractor) and whose services were accepted for the purpose of carrying out a simple and normally harmless domestic task. What caused the accident was the fact that the carrying out of that task became enmeshed in an unforeseeable sequence of fortuities the teapot being left near the edge of the table; the sudden ringing of the telephone; the unconsidered rush from the room by Marie to answer it, thus leaving the child alone in the room; and the failure of the plaintiff’s mother to see the plaintiff approach the teapot. Undoubtedly, what Marie undertook to do for the defendant was capable of causing injury if done negligently, but it was essentially a task of a routinely harmless nature which the defendant had no reason to think would not be carried out safely by Marie. It is conceded that Marie was not the defendant’s servant, and the circumstances of the accident do not fit into any of the exceptions to the rule that a principal is not liable for the negligence of an independent contractor or a gratuitous helper or a delegate who is not a servant.
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 likehe could not reasonably have been expected to be insured against the risk of that negligence.
Since in my view it would not have been open to the jury to hold that the defendant was liable for Marie’s negligence, it is not necessary to come to any firm conclusion as to how the jury might permissibly have dealt with the question of Marie’s negligence, having regard to the dicta of Devlin J. in Phipps v. Rochester Corporation 8 as to the degree of care that is owed to a child of tender years who comes accompanied by a pared or other custodian. I am prepared to hold, for the purpose of this judgment, that it would have been open to the jury to find that Marie was negligent. However, even if the jury were to make such a finding, they could not have gone on (for the reasons I have given) to hold the defendant liable for that negligence. I would therefore dismiss this appeal.
O’Keeffe -v- Hickey
[2008] IESC 72 (19 December 2008)
Court: Supreme Court
Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.
Judgment by: Hardiman J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Hardiman J.
Appeal dismissed – affirm High Court Order
Murray C.J.
Fennelly J.
Murray C.J., Denham J.
Geoghegan J.
Outcome: Dismiss
THE SUPREME COURT
Murray C.J. 174/06
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
LOUISE O’KEEFFE
Plaintiff/Appellant
and
LEO HICKEY, THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY GENERAL
Respondents
JUDGMENT delivered on the 19th day of December, 2008, by Mr. Justice Hardiman.
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.
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.
These defendants say that they are not liable. They did not own or run the school, or appoint the teachers. They did fund the managemecnt 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.
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 “managerial system”, which has prevailed in Ireland, for historical reasons, for more than 150 years.
In summary, 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? We have been told that a great many other cases await the result. If the question is answered in the negative, the plaintiff may have to be content with the award made to her by the Criminal Injuries Compensation Tribunal.
This is the plaintiff’s appeal against the decision of the High Court (de Valera J.) whereby he dismissed the plaintiff’s claim against the second third and fourth defendants. De Valera J’s judgment was delivered on the 20th January, 2006, and the order was perfected on the 24th October, 2006.
Factual background.
The plaintiff was born in November, 1964, and is now about 44 years of age. She was married but is now separated and has two young children.
The first-named defendant is a retired teacher who was born in the year 1939. In August of 1962 he was appointed as Principal of Dunderrow School near Kinsale in Co. Cork. This school is within the Catholic diocese of Cork and Ross. It was owned, on the evidence, by the trustees of that diocese. At the time material to this case, the patron of the school was the late Dr. Lucey, Bishop of Cork and Ross and the Manager of the school was an Archdeacon Stritch P.P. The latter, however, was an elderly gentleman and it appears that at all material times the actual functions of management came to be carried out by a Fr. O’Ceallaigh. The latter is described in the plaintiff’s submissions as “the de facto manager of the school.”
The abuse occurred in the latter part of the school year ending in the summer of 1973, according to the plaintiff’s pleadings, or at the latest up to September 1973, the judge found.
It would appear that there was considerable local concern about the first-named defendant’s behaviour leading to the parent of another child approaching Fr. O’Ceallaigh. In September of 1973 the first-named defendant resigned from his position. After a period of sick leave he was appointed as a teacher in a boys’ National School in Ballincollig where, on the evidence, he taught until his retirement in 1995. He did so without complaint, as far as the evidence goes.
The plaintiff made no complaint at the time of these events though a little later, when specifically questioned by her mother, she indicated that something of a sexual nature had occurred. This was a very brief conversation and, according to the plaintiff’s submissions on appeal did not go “further than that very minimal description”.
Many years later, in 1996, another former pupil of Dunderrow School complained to the gardaí about what had happened there. The gardaí contacted the plaintiff in November of 1996 and she made a statement in January, 1997. According to the plaintiff’s submissions, she was herself surprised at her reaction to giving this statement: “She was surprised at how much it meant to her to give the statement and describe what had happened to her… it struck her that this was something more important to her than she had hitherto imagined.”
The plaintiff was subsequently referred for counselling.
In the meantime, in June 1998, the first-named defendant was convicted on a plea of guilty to twenty-one sample charges of abuse in Dunderrow School. The plaintiff says that the sentencing hearing “was the first point at which [she] appreciated that the difficulties she had suffered in her life were to a very considerable degree the result of what the first-named defendant had done to her”. She was subsequently referred for a psychiatric assessment/counselling. The difficulties referred to were of a marital nature.
According to the plaintiff’s account, she was concerned that the first-named defendant had not, before the issue of these proceedings, been exposed as a paedophile. His name had not been published as a result of the criminal prosecution. His standing in the community did not seem, as far as the appellant could discern, to reflect the wrongs he did to numerous young girls placed in his care. This, far beyond any monetary compensation, was a significant purpose in instituting proceedings as was the aim of making people aware of what had happened to her and who it was that did this to her, she says.
On the 27th October, 1998, the appellant made an application for compensation to the Criminal Injuries Compensation Tribunal. She was awarded a sum of slightly more than £53,000. She issued the present proceedings on the 29th September, 1998. In November, 1999 she obtained judgment in default of defence against the first-named defendant, the perpetrator of the abuse. On the 24th October, 2006, damages were assessed against him in the total sum of €305,104.00 made up as follows:
(a) General damages – €200,000.00,
(b) Aggravated damages – €50,000.00,
(c) Exemplary damages – €50,000.00,
(d) Special damages – €5,104.00.
The trial of the action against the other defendants commenced on the 2nd March, 2004, and ended on the 12th March, 2004. The plaintiff’s claim against the State defendants fell into three headings as follows:
“(1) Negligence on the part of the State arising out of the failure of the State defendants to put in place appropriate measures and procedures to protect and to cease (sic) the systematic abuse which the first-named defendant had on the evidence embarked from 1962 in Dunderrow National School of which she was very much one of the latter victims.
(2) Vicarious liability in relation, not merely to the first-named defendant but also in relation to the curate Fr. O’Ceallaigh who was the de facto acting manager, to whom the evidence established that a complaint of sexual abuse of a pupil by that girl’s mother was made in or about 1971 on foot of which Fr. O’Ceallaigh took no action.
(3) The constitutional role and responsibility of the State defendants in the provision of primary education arising under Article 42 of the Constitution and the measures which the second-named defendant, the Minister, had adopted and the steps put in place to discharge those responsibilities.”
On the 9th March, 2004, the learned trial judge non-suited the plaintiff in respect of the claim in negligence but declined the defendants’ application for direction or non-suit in relation to the other issues. There was further extensive legal argument on those issues and a judgment was eventually delivered on the 20th January, 2006, whereby the plaintiff’s claims under the remaining two headings were dismissed. The plaintiff’s appeal is against this judgment and order.
Parties not sued.
It is notable that although the plaintiff has sued the actual perpetrator of the abuse, the first-named defendant, and the State defendants listed above – the Minister, Ireland and the Attorney General – she has not sued the patron of the school, Dr. Lucey, the diocese of which he was Bishop, his successors or his estate. Neither has she sued the owners of the school, stated in the papers to be the Trustees of the property of the diocese of Cork and Ross, nor the Manager of the school, Archdeacon Stritch, nor his de facto substitute, Fr. O’Ceallaigh or their respective estates or successors.
Legal standing of National Schools.
The history of national education in Ireland goes back to 1833 when the system was established by direct executive action. Subsequently the executive role was, under British rule, conducted by the Board of Commissioners of National Education. After the establishment of the Irish Free State, and later of the State itself, the Executive role devolved onto the Minister for Education. Arrangements were come to at a remote date which seem rather odd today and can only be understood in the context of Irish history in the early part of the 19th century.
The period between the Act of Union in 1800 and the concession of Catholic Emancipation in 1829 was one of acute denominational conflict and proselytism. The Established (Anglican) Church of that time undertook a considerable missionary programme, part of which took the form of the establishment of schools such as the Kildare Place Schools. Both the dissenting churches and the Roman Catholic Church were anxious that children of their respective denominations respectively be educated in schools controlled by those denominations respectively and not by the State or the Established Church. In the achievement of this objective they were remarkably successful and brought about, from the very beginning of the system of national education, a situation in which the Government authority, then the Irish Executive, paid for the system of national education but did not manage it or administer it at the point of delivery: this function was left to the local manager, usually (invariably in the case of Roman Catholic schools) a cleric, and usually appointed by the local Bishop who was the patron of the school. This situation forms an interesting contrast with the situation of the very few schools which the public authority did maintain and run itself. These “Model Schools” were indeed State schools in the full sense being supported, administered and staffed by public servants appointed by the public authority.
The principles underpinning the above situation are outlined in the very first document which might be regarded as illustrating the constitution of the national education system: the “Stanley letter” of 1833, so-called after the then Chief Secretary for Ireland who signed it. It may be recalled that both Lord Stanley and the Catholic Bishop of Kildare and Leighin, Dr. James Doyle, a well known controversialist under the name “JKL”, favoured a non-denominational state-run education for all, but were thoroughly overborne.
It is a remarkable feature of 19th century Irish history that, in a time during which, almost throughout Europe, a firmer distinction than previously was being made between Church and State, and Church influence in the provision of public services, including education, was ebbing, in Ireland the position of the clerical interest actually became stronger and more entrenched. I respectfully agree with what was said in evidence by one of the witnesses in this case, Professor Coolahan:
“The Managerial system stayed intact, and indeed the Managerial authorities, particularly the Catholic authorities, were very clearly articulate and very absolutely, shall we say, precise in how they interpreted what the situation was for national schools in the new Ireland, and I have the documentation in the book. It had to be Catholic Schools under Catholic management, Catholic teachers, Catholic children. It was a very clear enunciation of this.”
There, the Professor, who is the author of the standard work on the history on the Irish educational system, was describing the position after the inception of the Irish Free State. It was one of marked continuity from the previous regimes. He goes on to say that a very striking thing following the establishment of the Department of Education by the Ministers and Secretaries Act 1924 was the continuity of tradition. Going forward thirty years, to the early 1950s, the Professor described a dispute which arose when the Irish National Teachers’ Organisation sought the establishment of local committees to take responsibility for the maintenance and repair of school buildings and similar management functions, though not otherwise to interfere with the authority of the Manager. The attitude of the Roman Catholic Church, then led by Cardinal Dalton, was described by the Professor as follows:
“Eventually Cardinal Dalton took a very strong view on this issue and said there should be no interference whatever with the inherited tradition of managerial rights of schooling and it did not matter, because it was the thin edge of the wedge in his view, if local authorities [only] took control of the maintenance of schools. In due course, he said, it might intrude into other aspects of the Manager’s authority vis-à-vis the appointment and dismissal of teachers which was of course the key concern that had been fought for and won over the years.” (Emphasis added)
Between the times discussed in these two extracts from Professor Coolahan’s evidence, of course, the Constitution had been enacted. Article 42 thereof relates to education and is worth setting out in full:
“Article 42
1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
2 Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
3 1º The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2º The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
4 The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, to the rights of parents, especially in the matter of religious and moral formation.
5 In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and inprescriptible rights of the child.”
There is no suggestion, in this case, that Article 42.5 has any application. Considering, then, the balance of Article 42, it is asserted that children must receive “a certain minimum education” but the parents are recognised as the natural primary educators. It is said that the parents are free to provide that education “in their homes or in private schools or in schools recognised or established by the State”. This provision, in sub-Article 42.2, has a particular relevance because it disposes of a contention by the plaintiff that she was in some way obliged to attend Dunderrow School or a school of that type.
At Article 42.4 it is seen that the State is to “provide for” free primary education and in that connection to “endeavour to supplement and give reasonable aid to private and corporate educational initiative”. It is however obliged “to provide” other educational facilities when the public good requires it. The distinction between “providing for” and “providing” lies at the heart of the distinction between a largely State funded but entirely clerically administered system of education on the one hand and a State system of education on the one hand. This distinction will be further referred to in discussing the authorities on the subject. It is however made perfectly clear in the primary, Irish language, version of Article 42.4 where the relevant contrasting phrases are “socrú a dhéanamh chun bunoideachas a bheith ar fáil in aisce” (“to arrange that free primary education is available”) and “áiseanna nó fundúireachtaí eile oideachas a chur ar fáil” (“provide other educational facilities and institutions”).
Moreover, the reference to reasonable aid to “private and corporate educational initiative” aptly describes the practice already long established in 1937, which has continued since, whereby the State “provided for” the availability of free primary education very largely by making available to private groups, religious or otherwise, financial aid or assistance for the provision of primary education. The papers in this case suggest there are some 3,000 national schools: most of these are under the control of Roman Catholic patrons and managers, but others are under the control of religious or religiously appointed managers of different denominations and some are under the control of non-denominational groups. It has not to my knowledge been suggested, and certainly not suggested in this case, that the State’s operation and discharge of its obligations under Article 42.4 has resulted in unfairness to any one religious denomination by comparison with others, but in almost all cases the private group involved, usually a religious one, runs the school, not the State or the Minister.
The constitutional provisions quoted above are, of course, merely the foundation of the elaborate arrangements for the provision of primary education. In recent times, and after more than a century and a half, the provision of education has been placed at least partially on a statutory basis, very belatedly, by the Education Act 1998. At all times prior to that, and in particular at the time to which the plaintiff’s complaint relates, the role of the State, and of the Minister, in relation to the educational system (such as it was) was administered by and under the Rules for national schools and a great body of circular letters issued by the Department. In this, the authorities of the modern State were carrying on the traditions established in the 19th century under the Commissioners for National Education.
Some leading cases.
The only pre-independence and pre-constitution case which I consider it important to cite is that of Fox v. Higgins 46 I.L.T.R. 222. This was a judgment of Mr. Justice Gibson of the former High Court of Ireland. A teacher was suing a new manager for failure to reappoint him after the death or retirement of the manager who had first employed him. Mr. Justice Gibson held at p. 224 that “the National Board, the manager, and the teacher are put together in a kind of triangular pact”. The reference here to the “Board”, is a reference to the Board of National Education i.e. the Executive body, the predecessor of the Minister. The significance of the citation is that the phrase “triangular pact” has later been used in subsequent cases as a description of the relationship between the relevant parties.
In McEneaney v. Minister for Education [1941] 1 I.R. 430 at pp. 438 to 439, Murnaghan J. in this Court, in a judgment which was concurred in by his colleagues, sketched the history of the Irish National Education system very much as outlined above:-
“For now more than a century it has been recognised that the provision of primary education is a national obligation; and for very many years this duty was entrusted to a corporate body created by Royal Charter and called the Commissioners of National Education in Ireland.
The funds necessary for the purpose of primary education were provided by Parliament and handed over to this body to be administered, but in administering these funds the Board devised a mode of application known as the “managerial system”.
This system was adopted to obviate difficulties connected chiefly with religious belief. In most cases the schools were not the property of the Board but they were recognised by it as national schools. A manager, e.g., the parish priest or rector of the Church of Ireland, was nominated by an outside authority and the nomination was sanctioned by the Board – when sanctioned the duties and functions of the manager were minutely provided for in Rules and Regulations made by the Board.
The selection of the teacher, who should, however, have the prescribed qualifications, was left to the manager, but the salary of the teacher was in general provided by the Board…
By the Rules of the Board upon a change of manager the succeeding manager was under an obligation to reappoint the existing teachers under an agreement in writing in the same terms as the agreement by which they had been previously appointed. Further, whilst under the Rules the provision of salary for the teacher was made in the form of a grant to the manager and was paid to him unless he signed a request to have it paid direct to the teacher, the entire conditions as to remuneration usually depended upon the action of the Board.
As between the manager and the teacher legal rights and obligations depended upon the contract to which the Board was not a party, and it has been sought on behalf of the Department of Education to treat this contract as one in which, as to its legal effects, the Department was in no way concerned.”
(Emphasis added)
The judgment refers to the passage quoted above from Fox v. Higgins with approval and continues:-
“So far as the present case is concerned, as the manager did not own the school and was not carrying it on for his personal benefit, he is in the position of a trustee of an educational trust; but at the same time the Board, acting as an independent authority, has made published Rules by which it has made representations to both the manager and the teacher as to the way in which it would apply the funds entrusted to it by Parliament. In so far as Parliament has left to the Board a free discretion as to the application of these funds, the Board was legally bound by the representations which it had made.” (Emphasis added)
The legal and constitutional standing of national education was further explored in Crowley v. Ireland [1980] I.R. 102. This case arose out of an industrial dispute at Drimoleague National School. The teachers’ trade union instructed the teachers in neighbouring parishes not to enrol pupils from the Drimoleague parish. The pupils, relying on the constitutional Articles cited above, subsequently sued for the interference with their rights to free primary education. Speaking of Article 42 of the Constitution Kenny J. said, at pp.126 to 127:
“The effect of that Article is that each child in the State has a right to receive a minimum education, moral, intellectual and social; that the primary and natural educator of the child is the family; and that the State guarantees to respect the inalienable right and duty of parents to provide this education. They may provide it in their homes or in private schools or in schools recognised or established by the State. However, the State is under no obligation to educate. The history of Ireland in the 19th century shows how tenaciously the people resisted the idea of State schools. The Constitution must not be interpreted without reference to our history and to the conditions and intellectual climate of 1937 when almost all schools were under the control of a manager or of trustees who were not nominees of the State. That historical experience was one of the State providing financial assistance and prescribing courses to be followed at schools; but the teachers, though paid by the State, were not employed by and could not be removed by it: this was the function of the manager of the school who was almost always a clergyman. So s.4 of Article 42 prescribes that the State should provide for free primary education. The effect of this is that the State is to provide the buildings, to pay to the teachers who are under no contractual duty to it but to the manager or trustees, to provide means of transport to the school if this is necessary to avoid hardship, and to prescribe minimum standards.
The distinction between providing free education and providing for it is brought out vividly in the Irish version which is [as quoted above]…. I think that the change from Article 10 of the Constitution of the Irish Free State – “All citizens of the Irish Free State (Saorstát Eireann) have the right to free elementary education” – was intended to emphasize that the State’s obligation was not to educate but to provide for it. Thus, the enormous power which the control of education gives was denied to the State: there was interposed between the State and the child the manager or the committee or board of management.” (Emphasis added)
I respectfully agree with the foregoing dicta of Murnaghan J. and Kenny J. in this Court or its predecessor.
Vicarious liability.
We have seen, above, that the plaintiff’s case was presented under three headings, the second of which related to vicarious liability alleged to exist for the criminal and plainly unauthorised acts of the first-named defendant, but also for the alleged negligence of the curate Fr. O’Ceallaigh who was the de facto acting manager in respect of his alleged failure to take any step on foot of a complaint made to him of a similar nature, in relation to another child, in 1971. This is the only remaining claim.
The principles of vicarious liability are stated as follows in chapter 43 of the Law of Torts by McMahon and Binchy, 3rd Edition, (Dublin, 2000) at p. 1091:-
“The law is sometimes prepared to hold one person liable for the wrong committed by another person even though the person held liable is not at fault in the accepted sense of the word. Thus, the law may hold the employer liable for the wrongs of an employee, the principal liable for the wrongs of an agent or the firm liable for the wrongs of its partner in spite of the fact that the employer, the principal or the firm may not have been at fault in any way. When the law imposes liability in these circumstances we speak of an employer, principal or firm being ‘vicariously liable’.”
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’.”
I do not feel the unqualified enthusiasm which the learned authors evince for what they believe to be the modern theory of vicarious liability. The fact that a person or entity may have some resources (if only a private dwelling-house) does not in and of itself, in my opinion, convert him, her or it into a “deep pocket”. More fundamentally, even if the pocket is genuinely deep, that fact cannot in ordinary justice support the imposition of liability on such a person where it would not be imposed on a poorer person. And it is, with every respect, fatally easy for a writer in his study to dismiss another person as a “deep pocket” when that other is not such and does not so regard himself.
I do not consider that companies, institutions or even the State itself are necessarily to be considered in a different light than an individual. A finding of liability for perhaps very serious or gross injuries is not a light thing and has an effect quite separate from its consequences in damages. The fact or risk of such a finding may have a “chilling effect” even on State, private or charitable initiatives and will certainly have an effect on the cost of insurance. Nor can public funds, contributed originally by individual tax payers, be regarded as a separate type of fund, infinite in extent and invulnerable to an extension of the grounds of liability. Firstly, these funds are in fact finite, secondly justice surely demands that they, like private or charitably held funds, should be paid out only in response to a genuine claim and not have to meet a situation in which the very existence of the funds is a factor tending to expose them to a new species of liability. Finally, I do not consider that the second quotation from McMahon and Binchy, above, is at all apt to describe the factual circumstances of this case. That extract, on the contrary, deals exclusively with commercial ventures. I am not to be taken as agreeing with it, even in the commercial context. But in the circumstances of this case it is, in my opinion, nonsensical to speak of “risk creation”. I do not accept that the State, in performing its constitutional duty to provide for free primary education is creating a risk: this is further discussed below. Nor do I consider that the State is to be equated to an “enterprise” which “benefits from” the provision of free primary education. In other words I consider that, even if a new species of vicarious liability should be introduced in a commercial context based on a theory (surely not a legal one) of “risk creation”, of which I am utterly unconvinced at present, it would not apply in (what it has become fashionable to call) the factual matrix of the present case.
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.”
(Emphasis added)
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.
It is of course almost inconceivable that an infant plaintiff suing by her father would sue the father’s mother, the infant’s grandmother, if it were anticipated that that lady, a widow, would have to pay the damages herself. It seems inescapable that the action was taken in the hope of accessing an insurance policy, perhaps the grandmother’s household insurance. In any event, the majority judgment proceeded on the basis of an elaborate legalistic analysis of the entirely casual relationship whereby the defendant’s daughter had made a pot of tea in her mother’s house, where she herself lived. What, it is speculated, if the daughter were an employed domestic servant or a contractor? (But she was neither). An elaborate analysis, in my view highly artificial, took place of the relationship leading to an adult daughter making a pot of tea in her family home. I much prefer the more realistic analysis to be found in the dissenting judgment of Henchy J. at p.201:-
“If a permissible inference from the facts is that the defendant allowed Marie [the defendant’s daughter] to make a pot of tea and to bring it into the breakfast-room, there were no special circumstances capable of taking that commonplace delegation of a normally harmless household chore out of the general rule that the negligence of an independent contractor or a gratuitous obligor does not fall on the employer or the person benefited.”
It may be noted that the plaintiff in Moynihan had not sued her aunt, the person alleged to be directly negligent, but only the grandmother, hoped to be a “deep pocket”. The case appears to me to be an early example of the dismantling or muddying of the long established boundaries or limits of vicarious liability. This was done for the very humane reason of helping an innocent injured party to recover compensation, but it was done at a very considerable social cost, not often considered or discussed, as to which see the citation below from the judgment of Henchy J.
But even on the basis of the regime mandated by Moynihan, which has contributed to so much litigation in the intervening years, the essence of the liability is, as McMahon and Binchy agree, control. At p.1094 they say:
“The decision is important because it clearly indicates that the control concept is used, not as a justification for vicarious liability, but rather as a test to determine the persons for whose actions liability will be imposed on the defendant. In other words, if the control element is high then even in the absence of other features the subordinate may be considered a de facto employee and provided the “controlled person’s” acts relate to the “controller’s” business the latter will be vicariously liable for injury caused to third persons by such acts.”
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.”
(Emphasis added)
I wish to emphasise that we have not been invited to overrule Moynihan v. Moynihan and no argument to that effect was addressed to us on the hearing of this appeal. But the contrasting approaches of Walsh J. and Henchy J. in that case expresses and illustrates what must be a perennial theme in this area. No doubt there are many who would be happy to see, even at the cost of some “stretching” of the law, a situation in which the public purse or a vast insurance company, would have to pay compensation to an innocent party. They would not, perhaps, be so willing to accept this situation if the paying party is an ordinary householder who may not always be insured, or adequately covered, or if the effect of making the public purse an insurer of all, or almost all, forms of misfortune, is hugely to increase the cost of insurance to the point where it has an effect on the macro-economic position of the State, with obvious consequences to the individual taxpayer. Equally, there may be some reluctance to compensate at all costs and regardless of blameworthiness, if the paying party is a charity or benevolent association of some kind, or, still worse, an individual who has become involved with such an organisation and comes to be deemed, by the process of “stretching” the law, to be the employer or “controller” of some wrongdoer.
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.
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.
The foregoing are observations on vicarious liability as it is known in Irish law at present. Broader aspects of this concept, such as what the learned authors cited above describe as “enterprise liability” or “risk creation liability” will be discussed separately. But it is worth noting that the eternal quest for a “deep pocket” which can be made liable not merely proceeds apace, but at an ever increasing pace: one learns through the internet of Australian litigation directed at demonstrating that the manufacturer of a mobile phone has a vicarious liability for injury caused by a driver who loses control of his vehicle while speaking on a mobile phone. And on the 22nd October, 2008, it is reported in the Irish Times that a Circuit Court judge in Cork predicted that if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards.
Control.
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.
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] AC 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.” (Emphasis added)
This proposition is aptly illustrated in a case cited by Mr. Justice Fennelly in the judgment he is about to deliver, Cheshire v. Bailey [1905] 1 K.B. 237. There a silversmith hired a coach and coachman from the defendants in order to show his wares to customers around London. But the coachman entered into a conspiracy with others to steal the silver. The Court of Appeal dismissed the claim for damages against the defendant who grounded himself on the obvious proposition that the coachman’s activities had constituted a crime which is clearly outside the scope of his employment. The judgment said at p.241:-
“It is a crime committed by a person who in committing it severed his connection with his master, and became a stranger; and, as the circumstances under which it was committed are known, it raises no presumption of negligence in the defendant.”
Nevertheless, there are common law cases, including a fairly recent Irish case, where an employer was held liable for the criminal act of his employee. The first of these is another case discussed at length by Fennelly J., Lloyd v. Grace, Smith and Company [1912] 1 A.C. 716. There, a solicitor’s conveyancing clerk induced a client, who was a widow, to execute documents transferring title of two cottages to himself. He then sold them for his own benefit. The employer took no benefit at all from the transaction. Nevertheless he was held liable for the dishonesty of his clerk when the House of Lords held that the clerk had been acting in the course of his employment. Lord Shaw said, at p.740:
“I look upon it as a familiar doctrine as well as a safe general rule, and one making for security instead of uncertainty and insecurity in mercantile dealings, that the loss occasioned by the fault of a third person in such circumstances ought to fall upon the one of the two parties who clothed that third person as agent with the authority by which he was enabled to commit the fraud.”
An older English case was cited by Lord MacNaughten at p. 733, the judgment of Willes J. in Barwick v. English Joint Stock Bank [1867] L.R. 2 Exch. 259:
“In all these cases it may be said, as it was said here, that the master had not authorized the act. It is true that he has not authorized the particular act, but he has put the agent in his place to do that class of acts and he must be answerable for the manner in which that agent has conducted himself in doing the business which it was the act of his master to place him in.”(Emphasis added)
I think it is extremely important to understand the precise limitations of these decisions, and another to be discussed below. In the Lloyd case, the master had put the clerk into a position which enabled him, within the scope of his employment, to present to clients documents for signature in relation to conveyancing matters. This was “the authority by which he was enabled to commit the fraud”.
In the Barwick case, the bank had been requested by a supplier of goods to one of its customers to give a guarantee in relation to the customers liability. The supplier said the defendant’s manager had said he would do this and would pay the supplier when the customer was himself paid, via the bank. Notwithstanding this alleged assurance, however, when the customer’s money came into the bank it was appropriated to liquidate a liability of the customer to the bank. At the trial of the action by the supplier against the bank, the plaintiff was nonsuited. The issue before the Court of Exchequer Chamber was as to whether or not there should be a new trial: it was held that there should. The court expressly stated that it was not overruling the case of Udell v. Atherton [1861] 30 L.J. Ex. 337, which was cited for the proposition “that the principal is not answerable for the fraud of his agent”. More to the point, in directing a retrial the Court held that “it is true, he [the employer] has not authorized the particular act, but he has put the agent in his place to do that class of acts …”. (Emphasis added).
There is simply no question of the defendants or any of them in the present case as having put Hickey in his position as a national school teacher to do the class of acts in respect of which this action is brought. The State defendants did not in fact put him in that position at all: the manager did. The English Joint Stock Bank appointed the manager as their general agent to do business of a sort which included the giving of guarantees, the negotiation of such guarantees with the parties seeking them, and the promising of forbearance on behalf of the bank itself on occasions when that was necessary to give effect to the guarantee. Everything the manager did, on the plaintiff’s account, was within the scope of this employment. Indeed, it is not obvious to me that this was a case of fraud at all: certainly no fraud had been established at the time the Court of Exchequer Chamber dealt with it.
In the Irish case of Johnson & Johnson(Ireland) Ltd. v. C.P. Security Ltd. [1985] I.R. 362, the defendant provided specialist property protection services. A security officer employed by the defendant facilitated thefts from the premises he was supposed to be guarding. This seems to me to be a judgment which turns on its own facts. It is, clearly heavily influenced by the English decision of Morris v. C. W. Martin & Sons Ltd. [1966] 1Q.B. 716. There a company which had accepted a fur stole for cleaning was liable to the lady who owned the item when an employee stole the fur. It is clear from the report at p. 725 that the defendant’s liability was thought by Denning M.R. to arise from the act of bailment:-
“If you go through the cases on this difficult subject, you will find that, in the ultimate analysis, they depend on the nature of the duty owed by the master towards the person whose goods have been lost or damaged. If the master is under a duty to use due care to keep goods safely and protect them from theft and depredation, he cannot get rid of his responsibility by delegating his duty to another.”
It seems to me that the Court of Appeal in the case just cited found a non-delegable duty in the cleaner as bailee of the item stolen. It appears to me that Egan J. found a similar duty in the circumstances of Johnson and Johnson (Ireland) Ltd. arising from the fact that the dishonest agent had been specifically employed to guard the premises in question. He, too, seems to have regarded this duty as having the same effect as an act of bailment, i.e. the creation of a non-delegable duty. The distinction between a non-delegable duty of an employer and a vicarious liability of the employer for his employees is a subtle one which has created much confusion in the cases and has led, as we shall see below, to some savage English academic rebuking of the House of Lords. But the distinction must be borne in mind in the present case because the plaintiff’s surviving claim is wholly based on vicarious liability.
In my view passages such as the following illustrate the true basis of the decision in Morris v. C. W. Martin & Sons Ltd. The first is that cited above, Lord Denning, cited above.
At p.737 Diplock L.J. whose review of the preceding cases and whose departure from Cheshire v. Bailey was the most strongly expressed, said:-
“I base my decision in this case on the ground that the fur was stolen by the very servant whom the defendants as bailees for reward had employed to take care of it and clean it.”
Salmon L.J. actually adopted the words of Willes J. in Barwick, cited above, and said at p.740 that the defendants had “… put the agent in [their] place to do that class of acts … and must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to put him in”.
Salmon L.J. continued:-
“A bailee for reward is not answerable for a theft by any of his servants but only for a theft by such of them as are deputed by him to discharge some part of his duty of taking reasonable care.”
It therefore appears to me that the act of bailment is not merely a feature of Morris v. C. W. Martin & Sons Ltd, but was the decisive feature in the decision of the Court of Appeal.
Moreover, it appears to have been this aspect which influenced Egan J. in the Irish case referred to, Johnson & Johnson (Ireland) Ltd. v. C. P. Security Ltd. I.R. 362. There, the plaintiff had employed a security company to guard his premises: instead one of the defendant’s security staff had actually admitted a thief with a van and co-operated in the loading of the plaintiff’s property into the van by thieves. Egan J. reviewed many of the English cases cited above and quotes the passage from Lord Denning, as cited above, including the reference to “a duty to use due care to keep goods safely and protect them from theft and depredation”. Egan J. continued, at p.366:-
“Lord Denning, it will be seen, stated that some of the cases were baffling and I would be cautious in committing myself to a completely general proposition that a master would in every conceivable circumstance be held vicariously liable for the tort or criminal act of his servant committed in the course of his employment. I have no hesitation, however, in accepting that the principle of vicarious liability must apply in the present case, where the employers were specifically engaged to safeguard the plaintfiff’s property”.(Emphasis added)
I am therefore of the view the English cases cited, and the Irish case which followed them, are narrower in their focus than might appear at first glance. In particular, they appear to me to turn upon either (a) the proposition that the employee was engaged to do the very class of act which the tort or crime related as in the presentation of documents for signature in the dishonest clerks case, or (b) a bailment or something appearing to the judge to be analogous to bailment as in the Irish case.
Accordingly it seems to me that the State defendants cannot be liable for the first-named defendants’ tortious and criminal acts on the ordinary and established principles of vicarious liability. The perpetrator was not the Minister’s employee: the latter did not employ him or direct him. He was employed by the patron and directed and controlled by the manager. The latter, according to one of the expert witnesses at the trial “was the direct governor of the school”. The Minister laid down rules for national schools but they were general in nature and did not allow him to govern the detailed activities of any individual teacher. He inspected the schools for their academic performance, other than religious instruction, but it did not go further than that. He was, to paraphrase the words of Kenny J., deprived of the direct control of the schools, and of the enormous power which that brings, because “there was interposed between the State and the child the manager or the committee or board of management”. Equally, the Minister did not appoint the Manager or the teacher or directly supervise him. This, indeed, was the essence of the “managerial system”. I cannot see, on the evidence, that he had any scope whatever to make a personal judgement about either of these two individuals. Moreover, it seems to have been instinctively recognised by the parents who complained about the first-named defendant that those with direct authority to receive the complaint and do something about it was the clerical and clerically appointed Manager. No complaint, on the evidence, was directed to the Minister or to any State body. The matter was handled, so to speak, “in house” at the election of the complainants. The end result of the process was a voluntary resignation followed by the employment of the plaintiff in another school in the vicinity.
All these factors tending to distance the Minister and the State authorities from the management of the school and the control of the first-named defendant are direct consequences of the long established system of education, described above and mandated in the Constitution whereby the Minister pays and, to a certain extent, regulates, but the schools and the teachers are controlled by their clerical managers and patrons. It is not the concern of the Court either to endorse or to criticise that system but merely to register its existence and the obvious fact that it deprives the Minister and the State of direct control of schools, teachers, and pupils.
It must also be considered that there are limits in practise to what an authority in the position of the Minister, or even a much more empowered authority, can do. A good example of this is given in the Crowley case, cited above: the Minister was prepared to provide alternative education for those children whose school was involved in an industrial dispute but was stymied in doing so by the effective “blacking” of the children by the Teachers’ Union, whom the Minister could not control. The Minister lacked the legal authority to give a direction to the first-named defendant as to his activities, about which in any event he had no knowledge: no one told him.
Equally, I could not hold, on established principles, that the act of sexually abusing a pupil was within the scope of the first-named defendant’s employment. It was the negation of what he was employed to do, an act of gross and obvious criminality. At the time it was committed, in 1973, it was an unusual act, little discussed, and certainly not regarded as an ordinary foreseeable risk of attending at a school.
I am fortified in these conclusions by the judgment of O’Higgins J. in Delahunty v. South Eastern Health Board and Ors [2003] IEHC 132 There, the learned judge held that liability for sexual abuse perpetrated by a person working in the school rested solely with the religious order which managed the school. Speaking of the position of a nun called Sr. Joseph Conception, the manager of St. Joseph’s Industrial School, the learned judge said at p.388:-
“[I]t must be remembered that Sr. Joseph Conception was not appointed to the course by or on behalf of the third defendant [i.e. the Minister] nor was she employed by the Department of Health or Education. It was not the function of the Department to manage the institution; that function was undertaken by Sr. Joseph Conception’s religious order. In those circumstances the suggestion that the third defendant should have insisted on Sr. Joseph Conception being qualified in management and/or childcare, and that he is to be faulted for failing to ensure that Sr. Joseph Conception obtained the requisite qualifications by invoking, or threatening to invoke, his statutory powers to decertify the school, is not realistic”.
Very relevantly, O’Higgins J. also held at p. 391 to 392:-
“The functions of the third defendant [i.e. the Minister] are not management functions. The evidence was that the ownership and management of the school was in the hands of the religious order who ran the institution. The fact that the institution was used by the State as a means of fulfilling its constitutional obligations towards at least some of the children in the school does not automatically make the institution an agent of the State, still less an agent of the third defendant [i.e. the Minister].”
This judgment, delivered more than 5 years ago, might, one would have thought, have directed the mind of the plaintiff towards the need to implead those directly charged with the management and control of the school.
In The Health Board v. B.C. and the Labour Court, (unreported, High Court, Costello J., 19th January, 1994) a female employee of the Health Board had been sexually assaulted by two fellow workers. This was claimed to amount to discrimination, contrary to s.2 of the Employment Equality Act 1977, and the Labour Court made an award to her, against the Health Board, in respect of it. The Board appealed to the High Court and Costello J. (as he then was) set aside the award. In doing so he had this to say (at p.10 to 11):-
“In the absence of express statutory provision the law in this country in relation to the liability of an employer for the tortious acts (including statutory torts) of his employee is perfectly clear – an employer is vicariously liable where the act is committed by his employee within the scope of his employment. But this is not the test which the Labour Court applied in this case. Instead of considering whether in committing the assault on the claimant… the Board’s employees were acting within the scope of their employment the Labour Court applied in effect the statutory test of vicarious liability contained in section 41 of the British Sex Discrimination Act, 1975 to which I have referred earlier.
… What the Labour Court should have done was to consider whether the employees were acting within the scope of their employment when they committed the violent sexual assault on the claimant… This question admits of only one answer. An employer may, of course, be vicariously liable when his employee is acting negligently, or even criminally. It has not been shown either in the Equality Officer’s Report or in the Labour Court’s determination what was the nature of employment in which the claimant’s fellow workers were engaged… But I cannot envisage any employment in which they were engaged in respect of which a sexual assault could be regarded as so connected with it as to amount to an act within its scope. The Board is not therefore vicariously liable for what occurred.”
On the basis of these cases, which specifically relate to alleged sexual assaults, and on the basis, which I believe to be beyond argument, that the Salmond test for vicarious liability is that which applies in Ireland, and having regard to the very particular arrangements which exist here in relation to the control and management of national schools and national teachers, I have no doubt that the Minister and the other State defendants are not liable to the plaintiff for the actionable wrongs committed against her by the first-named defendant. I would therefore dismiss the appeal. But it is impossible to ignore the elaborate arguments addressed to the Court to the general effect that the law of Ireland in relation to vicarious liability ought to be different and that it lies within the power of the courts to alter it as, it will be seen, the courts of other common law jurisdictions have done. Because of the importance of the matter, and in deference to the elaborate arguments addressed to us, I proceed in the rest of this judgment to discuss the possibility of a broader basis for vicarious liability. I am not impressed with those arguments and, more fundamentally, I consider that if the law is to be altered as suggested, that should properly be done by the legislature and not by the courts.
There is no doubt, however, that the organs of government of the State; executive, parliamentary and judicial, will at no remote date be confronted by these arguments again, possibly in very aggravated circumstances. It is therefore important that all who exercise any of the powers of government of the State should consider and reflect upon what has been urged.
A broader basis of liability.
In order to circumvent the very obvious difficulties created by the state of the law as summarised above, the appellant here relies upon certain Canadian authorities, which have been very influential in England and elsewhere. They are said to support a broader formulation of the circumstances which may give rise to vicarious liability. These are not, of course, said to be binding upon this Court, indeed, the appellant’s view is that “the position in Ireland is unclear” (plaintiff’s submissions at p.105). Certain other decisions from elsewhere in the common law world, notably Australia, were also relied upon as well as certain English authorities.
The classic position.
In ST v. North Yorkshire County Council [1999] LGR 584, the Court of Appeal in England refused to find vicarious liability for acts of sexual abuse committed by a school teacher. This was on the basis of an application of the Salmond test quoted above. The teacher had sexually assaulted a mentally handicapped student during a school field trip. It was held that his actions were not an unauthorised mode of performing an authorised act but an independent act outside the scope his authority. The Court held at p.591 that:
“[I]n the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”
It was also held that the sexual assault was “far removed from an unauthorised mode of carrying out the teacher’s duties on behalf of his employer.”
This in my view is consistent with the established approach in Ireland and with certain other authorities. It also accords with common sense. However, the appellant places reliance on two Canadian cases, Bazley v. Curry [1999] 174 D.L.R. (4th) 45 and Jacobi v. Griffiths [1999] 174 D.L.R. (4th) 71.
The innovation.
In Bazley, the Court held a non-profit organisation which organised residential care facilities for emotionally disturbed children liable for the act of an employee who sexually abused the plaintiff. At the first instance, it was held that the abuse was an improper mode of doing an authorised act and the Childrens’ Foundation, the defendant, was held to be liable. This decision was upheld by the British Columbia Court of Appeal and by the Supreme Court of Canada. McLachlin J., speaking for the Supreme Court, held that the common thread in cases of this kind was that “the employer’s enterprise had created the risk that produced the tortious act”. It will be recalled that McMahon and Binchy spoke of “enterprise liability” in the passage, cited above, where they discussed the “modern view”, as it seemed to them, of vicarious liability. McLachlin J. somewhat added to the test by saying that the plaintiff must show that the employer significantly increased the risk of harm. She then proposed a further two stage test for determining whether an act of an employee should be characterised as an independent act under the Salmond test. Firstly, the court should examine whether precedent covered the sort of facts displayed by an individual case. If there was no clear precedent, favouring vicarious liability, the courts should determine whether vicarious liability should be imposed in light of the broader policy rationales. See para 28 of the judgments. In Bazley itself, the court held that there was no precedent mandating liability. However, the court upheld the decisions in favour of the plaintiff, stating vicarious liability to be a policy driven area of the law and identified the policy objectives as those of (1) fair compensation and (2) deterrence. The court went on to observe, somewhat blandly, that a guilty employee might often be a man of straw whereas his employer would often have deeper pockets. It must be emphasised that the court held that the employer should not be held liable simply because he has the ability to pay, and went on to hold that “effective compensation must also be fair, in the sense that it must seem just to place liability for the wrong on the employer”.
I have to say that, considered as a serious criterion of liability the last quoted phrase seems to me utterly lacking in rigour, and perhaps even in meaning. It is utterly useless as a predictive tool. It seems to me a modern version of the “Chancellor’s foot”, an old legal metaphor for an uncontrolled highly subjective discretion.
The court went on to hold that, in order to further the objective of deterring future harm, the law of vicarious liability may impose (strict) liability on an employer in cases where the employer 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.
Accordingly, the court found that the Children’s Foundation was vicariously liable on the basis that it had created the risk of the abuse. McLachlin J. held that “the opportunity for intimate private control and the parental relationship and power required by the terms of employment created the special environment that nurtured and brought to fruition Curry’s [the perpetrator’s] sexual abuse”. The learned judge said the test for vicarious liability for employee sexual abuse was “whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm”. She apparently regarded this test met if the employee and the child were put in intimate contact by the former’s employment.
The judgment in Jacobi v. Griffiths [1999] 174 D.L.R. (4th) 71 was delivered in the Supreme Court of Canada on the same day as Bazley. There however a majority of the Supreme Court of Canada declined to find the “Boys’ and Girls’ Club”, a non-profit organisation, vicariously liable for the abuse of a child by its employee. The object of the Club was to provide guidance to children and promote their health, social, educational, vocational and character development. Here, the majority judgment was delivered by Binnie J. who distinguished Bazley which, as we have seen, proceeded on the theory of “enterprise risk” as the rationale of vicarious liability. He held that the activities of the Boys and Girls Club were not of such a kind to create a relationship of power and intimacy but merely provided the offender with an opportunity to meet children. This was insufficient. McLachlin J., who had delivered the judgment of the court in Bazley, dissented in this case. She considered that the securing of a position of trust in intimacy and power was within the objectives of the Club and that the Club therefore assumed responsibility, especially given that it was dealing with disadvantaged children. The test, which was met in Bazley and not met in Jacobi is widely referred to as the “strong connection test”.
In Lister v. Hesley Hall Ltd. [2002] 1 AC 215 the House of Lords considered the same sort of issues. The facts of the case will be referred to below. However, the appellant has emphasised in particular a portion of the speech of Lord Millet at p.244:
“If the employer’s objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business.”
(Emphasis added)
In Lister, the House of Lords appears to me to have adopted a “close connection” test, clearly derived from the Canadian cases, as the criterion of vicarious liability. Any decision of the House of Lords deserves and always receives careful and respectful consideration in this Court. Having tried to accord this decision consideration of that sort, I have nonetheless concluded, with a number of English academic authorities, that the judgment seems guided by a perceived need to find for the plaintiffs rather than “any discernible sense of direction”. Apart from the very marked degree of enthusiasm for the Canadian cases, there is no development of a coherent legal principle nor is there even a clear articulation, which is certainly a feature of the Canadian cases, of what are said to be the “policy issues”. Indeed Lord Clyde, at paragraph 35, seems to doubt that there is, or ever has been, any clear logical or legal principle underlying vicarious liability:
“I am not persuaded that there is any reason of principle or policy which can be of substantial guidance in the resolution of the problem of applying the rule in any particular case. Theory may well justify the existence of the concept [of vicarious liability] but it is hard to find guidance from any underlying principle which will weigh in the decision whether in a particular case a particular wrongful act by the employee should or should not be regarded as falling within the scope of the employment.”
This, indeed, is a depressing picture. If there is no coherent theory of vicarious liability, there can be no principled development of the law on that subject, no predictability and no means for a person, plaintiff or defendant, to form proper view of his rights or liabilities. This would be a sad condition for any legal system to find itself in, seeming to justify Tennyson’s description of the English common law as
“… the lawless science of our law –
The codeless myriad of precedent,
The wilderness of single instances.”
The “close connection” theory is most strongly articulated, nevertheless, in the speech of Lord Steyn in which he says he has been greatly assisted by “the luminous and illuminating judgments of the Canadian Supreme Court in Bazley v. Curry 174 DLR (4th) 45 and Jacobi v. Griffiths [1999] 174 D.L.R. (4th) 71. These are strong adjectives indeed to apply to the latter case where the Court divided four to three on whether its own “close and direct connection” test had or had not been met.
Despite this marked attention to the Canadian jurisprudence, Lord Steyn said that he reached his own decision “employing the traditional methodology of English law” (at p.230). A line or two later this methodology was said, without further citation of authority, to consist of an inquiry as to whether the perpetrator’s “torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.” I simply cannot see that this arises either from the common law position (strongly stated in ST, which the House of Lords reversed in Lister) or from the methods usually employed by the common law.
Lister’s case was an action by some men who as boys had been sent to Hesley Hall, a school specialising in boys with emotional and behavioural difficulties, when they were between twelve and fifteen years of age. They lived in a place called Axeholme House, which was a boarding annex of the school and was situated about two miles away. It was specifically intended to be a home for the boys, and not an extension of the school. A man called Grain was employed as the warden of this place and his wife as the housekeeper. Grain’s duties were quite clearly more parental than school masterly. He carefully groomed some of the children by various indulgences and subsequently engaged in sexual conduct with them, in respect of which they later sought compensation.
The most rigorous of the speeches in the House of Lords seems to me that of Lord Hobhouse of Woodborough, reported at [2002] 1 AC 215 at p.238 789. His analysis, notably at pp. 238 and 239 rests squarely on the foundation of the employers having a non-delegable duty to take all reasonable steps to safeguard the plaintiffs and accordingly:
“The employers are liable for the employees tortious act or omission because it is to him that the employers have entrusted the performance of their duty. The employers liability to the plaintiff is also that of a tortfeasor (at p.239)”
A “tortfeasor” liability is plainly direct and personal, as opposed to vicarious, in nature, but Lord Hobhouse clearly says that the employer is being found vicariously liable.
These and other difficulties with this case have led the learned authors of the tort section of the All E.R. Rev. [2001] Mr. Mullis and Mr. Nolan, to go so far as to say at para. 29-30 on p. 426 that “their Lordships appeared unclear as to the distinction between personal and vicarious liability”. They also conclude that “For all its faults, it is submitted that Salmond test provided more guidance than the close connection test adopted in Lister … the decision looks set to create yet more uncertainty in this troubled corner of the law of tort.” I would hesitate to go so far as this, but I cannot regard the case as helpful in the task presently before the Court.
The ratio decedendi of the House of Lords in Lister did not appear to me to be easily ascertainable from the report. Nevertheless, in so far as it can be ascertained, it seemed to me to emerge from the speeches of Lord Clyde, Lord Millet in the passage cited above and Lord Hobhouse of Woodborough. Apart from the extract from the speech of Lord Millet, this appeared to coincide with the view of the learned English academic commentators cited above. However, having had the advantage of reading in draft the judgment of Fennelly J., I have become aware that an alternative ratio might be regarded as emerging from the speech of Lord Steyn, apart from the brief references quoted above.
Lord Steyn first traced the history of the case, showing that it stemmed from a finding of the trial court that although the employers could not on the then existing law, be held vicariously liable for the torts of the perpetrator, they were vicariously liable for the perpetrator’s failure to report to his employer “his intentions (before the acts of sexual abuse) and the harmful consequences to the children (after acts of abuse) at p. 221.”
This point, a version of which at one stage featured in the present case, was disposed of by the Court of Appeal in a single sentence of the judgment of Waller LJ. with which, in so far as it is relevant, I agree:
“The simple point in this case is that if wrongful conduct is outside the course of employment, a failure to prevent or report that wrong conduct cannot be within the scope of employment so as to make the employer vicariously liable for that failure when the employer was not vicariously liable for the wrongful conduct itself.”
This seems to me not only correct, but self evident. Lord Steyn, at p. 222 of the report, says that since the decision of the Court of Appeal the reports of “two landmark decisions in the Canadian Supreme Court” had become available. These of course are Bazley and Jacobi. This led Lord Steyn to adopt the “close connection” test and apparently to argue, over the following pages, that it is to be found (embryonically at least) in the Salmond test and in the English cases most of which have been cited above. Here too, with great respect, I cannot follow his approach.
In relation to the first of these matters, Lord Steyn at p.775 quotes the Salmond test, focusing, naturally on the second leg of it; is the act complained of:
“Is the act complained of a wrongful and unauthorised mode of doing some act authorised by the master”.
Lord Steyn then goes on to quote, from the first edition (1907) of Salmond on Torts at pp. 83-84passage which says “a master … is liable even for acts which he has not authorised, provided that they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them”.
(Emphasis in Lord Steyn’s speech)
He goes on to say that Salmond’s explanation “is the germ of the close connection test adumbrated by the Canadian Supreme Court”.
I do not believe that the passage quoted above from the first edition of Salmond is at all capable of being the “germ” of the close connection test. It is true Salmond in his first edition referred to acts which the employer had not authorised but which were “so connected with acts which he has authorised …”. But the result of this close connection, in Professor Salmond’s exposition, is that the acts in question are so connected with acts (a) which the employer has authorised, and (b) that they may rightly be regarded as modes – although improper modes – of doing them.
Properly understood, there is no rational connection between this formulation and the Canadian one of “close connection”, or a ground of vicarious liability, except that the word “connection” is used in both. But Professor Salmond’s “explanation” as Lord Steyn regards it, requires that the close connection be with acts which the employer has authorised and be such that what is actually done can be regarded as a mode, though an improper and unauthorised one, of doing what the employer has authorised. At the very least, the Canadian Supreme Court wholly dispensed with the second part of this test, requiring that what was in fact done must be a mode of doing what was authorised. The importance of the subject matter compels me to repeat, at the risk of tedium, that I cannot see anywhere in Professor Salmond’s treatment of this subject the smallest “germ” of what the Canadian Supreme Court did almost a century after Professor Salmond had first propounded his test.
Lord Steyn then goes on to consider cases such Lloyd v. Grace, Smith and Co. [1912] 1 A.C. 716 and Morris v. C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716. He interprets those cases, which have been sufficiently discussed earlier in this judgment, as leading to the conclusion at p. 226 that “[o]ur law no longer struggles with the concept of vicarious liability for intentional wrongdoing” but turning to the authoritative Salmond test and enquiring how vicarious liability for intentional wrongdoing fitted in with it, he conceded that “[t]he answer is that it does not cope ideally with such cases”. He expands this as follows, at p.226:
“It must, however, be remembered that the great tort writer did not attempt to enunciate precise propositions of law on vicarious liability. At most he propounded a broad test which deems as within the course of employment a wrongful and unauthorised mode of doing some act authorised by the master”
Lord Steyn then emphasised the connection between the authorised acts and the improper modes of doing them and stated that “In reality it is simply a practical test serving as a dividing line between cases where it is or is not just to impose vicarious liability.”
I have to say that it is not entirely clear to me what these passages mean. But Lord Steyn himself gives an example of a case – Rose v. Plenty [1976] 1 All ER 97 – which he considers illustrates them. This was a case where a milk roundsman who drove a float was prohibited from giving lifts to third parties and from employing children to help him with his work. Ignoring this, he employed a thirteen year old boy to run in and out of houses with milk bottles and drove him about so that he could do this. The boy was injured in the course of this prohibited activity and his action against the milkman succeeded but that against the employer was dismissed. The Court of Appeal reversed this decision in a passage summarised as follows in the All England Law Reports at p. 97:
“The employers’ instructions only affected the milkman’s mode of conduct within the scope of his employment and did not limit or define the scope of the employment. It followed that, although the milkman’s acts of employing the plaintiff and carrying him on the float were prohibited, they had been performed by the milkman within the scope of his employment having been performed for the purpose of the employer’s business. Accordingly the employers were vicariously liable for the milkman’s negligence and the appeal would therefore be allowed”.
This says no more than that a prohibited act may be an unauthorised mode of doing the employer’s business. There is a powerful dissenting judgment in the case by Lawton LJ. which suggests the contrary and which commends itself to me as an exercise in logic. But even if the law is as cited from the headnote, the case establishes only that a prohibited act may nonetheless within the scope a person’s employment, having been performed for the purpose of the employer’s business. I cannot see any logical way in which this feeds in to the decision in Lister since, as the Court of Appeal held in that case, the abuse could not possibly be regarded as having been performed for the purpose of the employer’s business. Indeed, the sexual abuse, in the words of Chadwick L.J. in the Court of Appeal “must be regarded as an independent act of self indulgence or self-gratification”.
But Lord Steyn links the facts of Lister to the case of Rose v. Plenty, discussed above, a passage which I find extremely difficult to follow, at p.227. Having cited extensively from the report of Rose v. Plenty he says:
“If this approach to the nature of employment is adopted, it is not necessary to ask the simplistic question whether in the cases under consideration the acts of sexual abuse were modes of doing authorised acts. It becomes possible to consider the question of vicarious liability on the basis that the employer undertook to care for the boys through the services of the warden and that there is a very close connection between the torts of the warden and his employment. After all, they were committed in the time and on the premises of the employers while the warden was also busy caring for the children”.
The majority in Rose v. Plenty found as they did on the basis that the acts were a mode of doing what the employee was paid to do. No one could say that about what Grain did in the English case and what Hickey did here. In any event, Hickey’s actions in this case were not done in the time of the Minister, or on his premises or while Hickey “was also busy caring for the children”, whatever that may mean.
As mentioned above, certain Australian authorities were also cited on the hearing of this appeal. These show a considerably more moderate view in general of the concept of vicarious liability, but do not exhibit the unanimity that the members of the Canadian Supreme Court found it possible, at least briefly, to achieve.
The High Court of Australia decided three cases on the 6th February, 2003, New South Wales v. Lapore and Another; Samin v. Queensland and Others and Rich v. Queensland and Others [2003] H.C.A. 4; 212 C.L.R. 511; 195 A.L.R. 412; 77; A.L.J.R. 558.
In these cases, the plaintiffs placed their primary reliance on a concept of a non-delegable duty of care owed by an education authority. I understood that, on the argument of this appeal, the plaintiff/appellant disclaimed any such argument. The Australian plaintiffs also relied on vicarious liability and references were made to the English and Canadian jurisprudence. It is not at all easy to find a consensus amongst the justices of the High Court, but one easily identifies two opposing viewpoints. Callinan J. espoused the view that because the commission of a criminal act by a teacher would be so far removed from his duties as an employee, vicarious liability cannot and should not be imposed on the employer. He said that “Nothing could be further from the due performance of a teacher’s duty than for him to molest children in his care.” I believe this is the true position at Common Law, and is true in fact.
Kirby J., on the other hand, said that “… in the face…” of so many decisions upholding vicarious liability in such circumstances, a general exemption from civil liability based on the deliberate or criminal character of an employee’s conduct cannot stand as good law”. Gleeson C.J. leaned in the same direction. The judgments of these two judges contain the suggestion, reminiscent of the judgment of McLachlin J. in Bazley that given the significant new problem of sexual abuse and the need to provide victims of sexual abuse in Australia with compensation, it is important for Australian law to march in step with the highest courts of England and Canada. All of these cases were teacher/student assaults and Gleeson C.J. held that where the teacher/student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy may provide “a sufficient connection” between the sexual assault and the employment to permit treating the abuse as occurring in the course of employment. This plainly derives from the Canadian cases.
In Lord Steyn’s speech in Lister, he overrules the earlier case of ST and in the course of doing so concedes at p. 223, that the case overruled was “a carefully considered and reasoned decision”. “Nevertheless”, he says “our allegiance must be to legal principle”. On the same basis, that of the need to adhere to legal principle, I must conclude 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 in step together. I would not at all belittle the desirability of this last consideration and would freely acknowledge the inspiration often to be found in English and other UK, American, Canadian and New Zealand decisions. These recent decisions have themselves overruled cases, like ST, firmly rooted in principle and in precedent. I would have less anxiety in following or accepting guidance from the overruling decisions if they substituted a similar coherent precedent or principle for those jettisoned. It does not appear to me that the “close connection” test can be regarded as a principled one and I think this is illustrated by the conflicting results arising from its application in very similar circumstances in the cases of Bazley and Jacobi.
It appears to me, moreover, that there is a significant difference of approach between Lord Steyn and the Canadian Court. The latter, as expounded earlier in this judgment, required that the court should examine whether precedent covered the facts of an individual case. Only if there was no clear precedent favouring vicarious liability should the courts have recourse to the “broader policy considerations” which allowed vicarious liability to be imposed in Bazley. In other words, the Canadian Court was unable to find a basis in precedent for imposing vicarious liability in that case. But that is precisely what Lord Steyn, as it appears to me, would claim to do: to find a basis in pre-existing English cases and academic writings leading seamlessly to the finding of liability in Lister.
I am not satisfied that it would be proper to ground vicarious liability on any of the theories expounded in the Canadian cases. I do not believe that the requirements of either fair compensation or deterrence justify the novel imposition of strict liability on an innocent employer for acts quite outside the well established Salmonds test. It seems to me, as I have already said in this judgment, lacking in fundamental justice to impose a liability on a person simply because he is, or is thought to be, in a position to pay compensation. Equally, and perhaps even more obviously, it is wrong to impose the status of wrongdoer and the liability to pay compensation without fault for acts outside the scope of employment on the basis of “pour encourager les autres”. Further, I am not satisfied that the fulfilment of the constitutional duty to make free primary education available by (in this case) supporting and financially assisting private and corporate endeavour is either an “enterprise” or a business, (to use Lord Millett’s word) carried on by the Minister. And I do not consider that it has been shown in this case or elsewhere that the risk of sexual abuse is one which experience shows is inherent in the nature of the “business” of providing for primary education. The fact that there have been notorious cases of sex abuse involving teachers does not demonstrate that things have got to the stage at which such abuse is an inherent risk of schooling: if it did, it would be a poor reflection indeed on the teaching profession.
Nor do I consider that the test set out in the Lister case by Lord Millett has been met. There is a total absence of evidence to suggest that the Minister’s duty of providing assistance to (in this case) private religious initiatives in the management of a national school “cannot be achieved without a serious risk of the employee committing” sexual abuse. The plaintiff seems to consider that a number of much publicised cases of sexual abuse by teachers proves that this condition is met. On the contrary, such actions are, even today, deviant, uncommon and attract the condemnation and disgust of the huge majority of the members of the teaching profession, who would never behave in this way. This is an important point, if the present case and others like it are to be approached in anything resembling a realistic fashion.
Role of the Legislature.
I have to say that I find some of the formulations in the Canadian cases in particular vague in the extreme and quite unhelpful. Asking “whether it is just” to impose no fault liability is not a constructive or a thought out approach, nor one likely to assist the discussion. It begs a huge number of questions. Imposing liability on an individual or entity on the basis of “broader policy rationales” smacks, with great respect, of political or social engineering rather than the administration of commutative justice. And if the law is to change towards the notably vague Canadian formulation, that is so great a change from our present concepts of justice in this area that, in my view, it should be changed by legislation. I say this on the basis of general separation of powers principles as outlined in my judgments in the Sinnott v. Minister for Education 2 I.R. 545 and T.D. v. Minister for Education [2001] 4 IR 259 cases, and out of respect for the legislatures exclusive power to make laws as expressed in Article 15.2 of the Constitution. This approach would also have the separate advantage of committing law reform in this area into the hands of those who will have to provide the wherewithal to fund the exceptionally generous regime of recovery which would be involved in following the Canadian model.
Apart from these general considerations I believe that the question of whether enterprise liability or some form of strict liability however denominated, should be introduced into the law of tort is an appropriate matter for legislative rather than judicial determination for the following reasons:
(1) It is, in my view, entirely inconsistent with the established common law basis of liability. If this is to be changed, it is best changed by legislation. See, for example, the comments of Walsh J. in his Foreword to the firs edition of McMahon and Binchy, Law of Torts, on the role of fault in tort.
(2) It would immediately raise the fundamentally social or political question of what constitutes an “enterprise” or an act of “risk creation”. Does this extend to public entities, to voluntary associations or to individuals involved in charitable or gratuitous services to relatives or neighbours? It must be understood that this has the potential to enormously extend the scope of liability especially if what Henchy J. calls “gratuitous obligers” are included.
(3) Depending on the answer to the foregoing question, the change may represent an enormous burden to enterprises, charities and individuals.
(4) It may also represent an enormous, and perhaps terminal, blow to voluntary charitable associations.
(5) The system of enterprise liability tends towards universal insurance, whose merits or demerits are fundamentally a political question. In a survey of the development of enterprise liability by Gregory Keating, Professor of Law at the University of Southern California Law School (2001) 54.3 Vand.L.Rev. 1285 the learned author points out that the workman’s compensation system was the first result of the rise of enterprise liability theory in the early part of the 20th century. He also observes that the workers compensation system was “founded largely upon a theory inconsistent with the common law of torts.” Apart from the intrinsic or political merits or demerits of this system, it has to be recognised that it would require to be supported by a system of insurance administered or funded (especially in the event of default) by the State and is therefore entirely apt for legislative initiative since legislation will certainly be required for the necessary, and necessarily compulsory, premiums required.
Control.
But, in the end, my views on the Canadian and Antipodean decisions are not central since I consider that even if they were to be followed here, except perhaps in their most extreme form, the Minister’s absence of direct control over the first-named defendant, (because such control had long since been ceded to the Manager and the Patron), prevents a finding against him. The first-named defendant was not an employee of the Minister and neither was he in any form of relationship with him which corresponds to any of the ordinary legal triggers for vicarious liability. Their relationship – a triangular one with the Church – is entirely sui generis, a product of Ireland’s unique historical experience.
In my view, both justice and the basic requirements of an ordered society require that the imposition of strict liability on a no fault basis be done (if at all) only on the clearest and most readily understandable basis. I do not regard the Canadian cases cited as providing such a basis: quite the opposite, as the two conflicting decisions cited demonstrate, in my view. I do not believe that the expanded basis of vicarious liability represents the law in this jurisdiction, or can be made to do so except by legislation. The consequences of doing this, social as well economic, would be immense; it is well to consider what was said in the Supreme Court of Canada about the potential for “chilling effect” of such a move, per Binnie J in Jacobi v. Griffiths [1999] 174 D.L.R. (4th) 71 at p.105:
“As to the nature of the enterprise sought to be held liable, the imposition of no fault liability in this case would tell non-profit recreational organizations dealing with children that even if they take all of the precautions that could reasonably be expected of them, and despite the lack of any other direct fault for the tort that occurs, they will still be held financially responsible for what, in the negligent sense of foreseeability, are unforeseen and unforeseeable criminal assaults by their employees. It has to be recognised that the rational response of such organizations may be to exit the children’s recreational field altogether. This is particularly the case with unincorporated groups, whose key members may find themselves personally responsible as the “employer” for the unforeseen criminal act of a deviant employee [the learned judge referred to authorities and continued] childrens recreation is not a field that offers monetary profits as an incentive to volunteers to soldier on despite the risk of personal financial liability.”
In Ireland, as in other countries, the decline in recent decades of the number of people performing voluntary activities on a local community basis has been much noted and deplored (see, in particular, Robert Puttman’s Bowling Alone). The Court’s decisions on issues such as the present are not without relevance to these issues.
It follows from the foregoing that I would not find the Minister or other State defendants vicariously liable in respect either of the first-named defendant nor of Fr. O’Ceallaigh. In relation to the latter it is worth pointing out that he was the nominee of the Patron, that is of a power other than the Minister and he did not inform the Minister of any difficulties with, or complaints about, the first-named defendant or of his resignation and appointment to teach elsewhere until they were faits accomplis. He was the agent not of the Minister, but of the Catholic Church, the power in whose interest the Minister was displaced from the management of the school.
I would comment as follows on the other two headings under which the plaintiff’s claim was put, though neither was proceeded with. The first was negligence in failing to put in place appropriate measures and procedures “to protect and cease [sic] the systematic abuse which the first-named defendant on the evidence embarked upon…”. In my view this is a claim which could more appropriately be made against the Manager. It was he who had the power to put in place appropriate measures and procedures governing the running of the school. The Minister can hardly be responsible for a failure to “cease” a course of action of whose existence he was quite unaware.
It is also claimed that by reason of the constitutional provisions of Article 42, cited above, he had a responsibility, presumably, to put measures described in the first paragraph in place.
I have already analysed the terms of Article 42 from which it will be seen that the Minister, in the case of this national school, was simply providing assistance and subvention to private and corporate (i.e. Roman Catholic) endeavour, leaving the running of the school to the private or corporate entities. The Minister is thereby, as Judge Kenny pointed out in Crowley v. Ireland cited above, deprived of the control of education by the interposing of the Patron and the Manager between him and the children. These persons, and particularly the latter, are in much closer and more frequent contact with the school than the Minister or the Department.
I do not read the provisions of Article 42.4 as requiring more than that the Minister shall “endeavour to supplement and give reasonable aid to private and corporate educational initiative”, to “provide for free primary education”. In the Canadian case of Blackwater v. Plint [2005] 3 S.C.C. 58, the much stronger statutory terms of a statute authorising the Minister “to establish, operate and maintain schools for Indian children” was found not to support “the inference of a mandatory non-delegable duty”. In my view the Constitution specifically envisages, not indeed a delegation but a ceding of the actual running of schools to the interests represented by the Patron and the Manager.
I wish to stress that nothing in this judgment should be interpreted as finding or suggesting that the Church Authorities in fact bear a liability for what happened to the plaintiff. It would be quite impossible to do this, in any event, because the Court has not heard those authorities, because the plaintiff has not sued them. They might, for example be in a position to lead evidence which would put an entirely different complexion on the facts to that urged upon us. We simply do not know.
I would dismiss the appeal.
JUDGMENT of Mr. Justice Fennelly delivered the 19th day of December, 2008
1. This appeal concerns legal liability for sexual abuse of children. The calamity of the exploitation of authority over children so to abuse them sexually has shaken society to its foundations. Cases of sexual abuse have preoccupied our criminal courts and this Court for many years. It is surprising that here for the first time this Court is confronted with questions relating to the liability of institutions, extending to the State itself, for sexual abuse perpetrated, as in this case, on schoolchildren in a national school, by a teacher. On the other hand, counsel have cited a number of authorities from other common-law jurisdictions to whose decisions we normally accord considerable respect.
2. The appeal is an attempt to develop traditional common law principles of vicarious liability for tortious acts in the very particular setting of the relationship between the State, on the one hand, and the managers of and teachers in national schools on the other. The appeal is from a judgment of de Valera J in the High Court. The learned judge dismissed the appellant’s claim for damages against the Minister for Education and Science, Ireland and the Attorney General, though the plaintiff secured an award of damages by default against the teacher who perpetrated the abuse.
The facts
3. The appellant was born in 1964. She was a pupil in Dunderrow National School, a mixed two-teacher school, at Kinsale, Co Cork, where the first-named defendant (“Mr Hickey”) was Principal. In 1973, when the appellant was eight years of age, Mr Hickey, at the request of the appellant’s mother, gave her individual music lessons (how to play the melodica). These music lessons took place in Mr Hickey’s classroom either during the play-break or in the afternoons after school. He used these occasions to perpetrate sexual abuse on the appellant. Commencing with the second music lesson, Mr Hickey gradually progressed from rubbing the appellant’s tummy outside her clothes to the point in about the fifth music lesson where he engaged in digital genital abuse of her. That digital genital abuse took place over the remainder of the lessons until the summer holidays of 1973.
4. Dunderrow was a Catholic school in the diocese of Cork and Ross. Its manager was Canon Stritch, who, according to the evidence, was then elderly and infirm. He died in 1975. Sometime in 1971, the mother of another child at the school complained to one Fr O’Ceallaigh that her daughter had suffered some form of sexual abuse at the hands of Mr Hickey. Fr O’Ceallaigh was said to have attended at the school, apparently in the absence of the manager. The appellant claims that he was de facto manager.
5. Some time in 1973 a number of other complaints of abuse by Mr Hickey of other children at the school came to light. Following a meeting of parents chaired by Fr O’Ceallaigh, Mr Hickey went on sick leave. On 14th January 1974, Fr O’Ceallaigh wrote to the Department of Education, on behalf of Canon Stritch, stating that Mr Hickey had given notice of his resignation from his post effective from 31st January 1974 and naming the teacher whom he planned to appoint to Mr Hickey’s post.
It does not appear that the Department was informed of the complaints against Mr Hickey.
6. Many years later a criminal prosecution was brought against Mr Hickey. In June 1998, he pleaded guilty to 21 sample charges out of a total of 386 relating to sexual abuse of twenty one girls who had been in his care at Dunderrow School.
7. The present civil proceedings were commenced on 29th September 1998. The plaintiff claims damages for sexual assaults committed on her between January and “the summer holidays” of 1973. The plaintiff obtained judgment by default against Mr Hickey, who has taken no part in the proceedings.
8. The action against the other defendants was heard from 2nd to 12th March 2004. For convenience, I will describe those defendants as the State. The appellant’s claim is that the State is vicariously liable for the sexual assaults perpetrated on her by Mr Hickey. The statement of claim also alleges that the State was negligent, as distinct from being vicariously liable, in a number of respects in relation to the recognition, examination and supervision of the school and in failing to put in place appropriate measures and procedures to detect and prevent sexual abuse by Mr Hickey.
9. De Valera J rejected two arguments in defence advanced by the State: he held that the appellant’s claim was not statute barred and that it should not be defeated on the grounds of excessive delay. The learned judge also ruled, at the conclusion of the plaintiff’s case, that the State had no case to answer in respect of the allegations of negligence (other than on the basis of vicarious liability). There is no appeal against any of these rulings.
10. On 20th January 2006, de Valera J delivered judgment dismissing the claim of the appellant. He held that the State was not vicariously liable for the acts of sexual abuse committed by Mr Hickey against the appellant.
11. The appeal is limited to the issue of vicarious liability. The appellant included, under that heading, a complaint that the learned trail judge failed to deal with the plaintiff’s complaint that the second-named defendant was vicariously liable for the failure of the school manager to act on a complaint of earlier acts of sexual abuse. This is a reference to the complaint of a mother of a different child made to Fr O’Ceallaigh in 1971. This ground of appeal has not been pursued, though I will refer to it briefly later in this judgment.
12. The only issue on the appeal is whether the State is vicariously liable for the acts of Mr Hickey, who was, at all relevant times, a teacher employed and working in a national school under the management of the local Catholic priest.
National schools
13. De Valera J summarised the factual relationship between the State and national schools in Ireland very succinctly as follows:
“The selection and appointment of any person as a teacher was a prerogative of the manager as was such a teacher’s appointment as principal. It was the function of the Department of Education (and hence the Minister) to pay the salary of such teachers and to ensure that they had the necessary qualifications. The Department also exercised a supervisory role in the overseeing of teacher’s activities in the school. Mr. McG.,[ McGleannain] in his evidence, stated in general terms “the manager was the direct governor of the school” and I accept this as being the situation.”
14. The learned trial judge applied the reasoning of O’Higgins J in Delahunty v. South Eastern Health Board and Others (High Court [2003] IEHC 132, 30th July 2003). He noted that the ownership of the school was vested in the Roman Catholic Diocese, which stood in a similar position in relation to the school to that of the religious order in the Delahunty case to the industrial school. The State funded salaries in a similar manner in both institutions and the requirements imposed on the Department in relation to inspection were more onerous in respect of the industrial school than national schools and Dunderrow in particular.
15. The High Court had the benefit of the evidence of Professor John Coolahan, formerly of the National University of Ireland at Maynooth, a leading expert in the history of education in Ireland and author of “Irish Education; History and Structure.” Professor Coolahan explained that history in a way which is highly relevant to the present appeal. Hardiman J has related that history in detail in his judgment. I will give a brief outline.
16. I will commence with a famous letter of October 1831, the “Stanley letter,” written by Lord Stanley, Chief Secretary for Ireland, which is the foundation document of the national school system. A new Board of Commissioners of National Education was to be the agency through which resources would be deployed to the schools. It was fundamental, according to Professor Coolahan, that there was not to be a state system of schools, other than in the case of a small number of “model” schools. There was to be a state-supported system. Schools would be independent but could obtain state support, provided that they agreed to abide by regulations drawn up by the Board.
17. The different religious denominations were determined to preserve and guard their independence and their own distinct religious education. Although the Board had wished to promote a concept of mixed education, the national schools developed into a predominantly denominational system in terms of managers, pupils and teachers. A school was owned by a patron (in the case of Catholic schools usually the bishop) who appointed the manager. The manager had day-to-day responsibility.
18. The division of power was very clear. The Commissioners laid down regulations for control of the curriculum and such matters as textbooks and teacher training. On the other hand the appointment and dismissal of teachers was the prerogative of the manager, who was almost always a clergyman and hence responsible for the “moral probity” of the school. The manager also had responsibility under regulations for the maintenance and upkeep of the school.
19. Neither national independence nor the Constitution of 1937 led to any essential change to this structure, which, at the date of the events with which this case is concerned, had endured for more than one hundred and forty years. Following independence, there was, of course, greater emphasis on nationalism, and on Irish language and culture. But there was little or no change in the system. In the case of Catholic schools, in particular, there were Catholic managers, Catholic teachers and Catholic children. The constitutional obligation of the State to “provide for” free primary education tended to emphasise the original objective of State support for, as distinct from direct State provision of education. Hardiman J has cited tellingly in the judgment he has delivered today from a number of relevant judicial decisions. Kenny J stated, in his judgment in Crowley and Ors. v. Ireland and Ors. [1980] IR 102 at 126:
“That historical experience was one of the State providing financial assistance and prescribing courses to be followed at schools; but the teachers, though paid by the State were not employed by and could not be removed by it: this was the function of the manager of the school who was almost always a clergyman.”
20. In more recent times, changes have included the appointment in the case of almost all schools of boards of management to include representatives of parents and teachers. State financial provision has greatly increased. The state now pays the teachers directly. The State prescribes the qualifications of teachers.
21. Inspection of schools has always formed a crucially important part of the system of State oversight and maintenance of standards. It enables the Minister to be satisfied about the quality of the system. Schools are regularly inspected by department-appointed inspectors who are assigned to particular areas and schools. The inspector would report generally to the Department on the efficiency of the school in all its aspects. This would extend to informing the manager of weaknesses or problems. Geoghegan J, in his judgment delivered today, quotes extensively from the evidence of the experts regarding the inspection system.
22. The current Rules for National Schools continue the national school system as described by Professor Coolahan. Many matters are, to borrow from the language of Murnaghan J in his judgment in McEneaney v. Minister for Education [1941] IR 430 at 439, “minutely provided for in Rules and Regulations made by the Board [now the Minister].” These rules constitute a comprehensive system of regulation of almost all aspects of schools, including school buildings, hours and time-tables and the qualifications of teachers. They provide for the recognition of patrons. A patron may “may manage the school himself or may nominate a suitable person to act as manager.” Rule 15 provides:
“The manager of a national school is charged with the direct government of the school, the appointment of the teachers, subject to the Minister’s approval, their removal and the conducting of the necessary correspondence.”
23. Managers are “required to submit without delay all proposed changes of teachers to the Department for approval.”
24. Much importance was attached at the hearing of the appeal to Rule 108, which provides (in Part):
“Where the minister is satisfied that a teacher has conducted himself improperly, or has failed or refused to discharge his duties under the School Attendance Ac 1926……………………………………
the teacher is dealt with as the Minister may determine. Penal action including prosecution, withdrawal of recognition in the capacity in which the teacher is serving, or in any capacity as a teacher, withdrawal or reduction of salary, may be taken when in the opinion of the Minister such action appears warranted.”
25. In substance, the Rules follow the system of allocation of responsibility which has existed since 1831, even if, in modern times, the State plays a more intrusive role. Responsibility for day-to-day management and, in particular, the hiring and firing of teachers remains with the manager. In this latter respect, it is important to distinguish between, on the one hand, recognition and, on the other, employment of a teacher. A teacher may not be employed if his qualifications are not recognised by the Minister and, if the Minister withdraws recognition, he may be unemployable. Nonetheless, it is the manager and not the Minister who decides on which teacher to employ. The contract of employment is between the manager and the teacher. The manager may dismiss a teacher without the sanction of the Minister.
Vicarious liability
26. In order to fix the State with responsibility for the criminal assaults committed upon her by Mr Hickey, the appellant invokes the principle of vicarious liability as it has been developed in the common law. Assuming Mr Hickey, as the principal teacher of a national school, to have been acting in the capacity of a servant or employee of the State, it is claimed that vicarious liability is sufficiently capacious to bring the claim home against the State. It will be necessary to test the assumption mentioned in the preceding sentence.
27. Firstly, however, I will discuss the principles which apply to vicarious liability for acts of the sort at issue in this case.
28. The notion that a person should be made responsible to an injured party for the effects of acts he has expressly or impliedly authorised provides the original basis for vicarious liability. Over time, the master’s liability for his servant’s acts ceased to be based on any assumption that he had authorised the wrongdoing. It sufficed if the servant had been acting in the course of his employment. Courts have on occasion explained the principle in terms of the Latin maxims, respondeat superior and qui facit per alium facit per se. These have been criticised as unhelpful (see Salmond on Torts, Fourteenth Edition, R.F.V. Heuston, Sweet & Maxwell, London 1965, page 644 for a selection of comments). Nonetheless, they are, to my mind, useful brief statements. They enshrine the notions of responsibility—respondeat–of a principal for the acts of an agent and action carried out on behalf of another. A person in authority may be answerable for the acts of his servant.
29. Lord Brougham explained the matter (in Duncan v Finlater) (1839) 6 Cl & F 894 at 910:
“The reason that I am liable is this, that by employing him I set the whole thing in motion; and what he does, being done for my benefit and under my direction, I am responsible for the consequences of doing it.”
30. The law, as it developed, dispensed with the need for either benefit to or direction by the master. On the other hand, Lord Brougham’s dictum contains an element of the idea of “enterprise liability” upon which the appellant places such store, relying on the decision of the Supreme Court of Canada in Bazley v. Curry [1999] 2 S.C.R. 534, 1999 Can LII 692 (S.C.C.).
31. The essentials of the principle, as understood in the very early twentieth century, were expressed in a much quoted and discussed passage from the first edition of Salmond (Salmond, Law of Torts, 1st ed (1907), p 83):
“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.
“But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them.”
32. It is the second part, (2), of the Salmond test, concerning an “unauthorised mode of doing some act authorised by the master,” which is material for present purposes. At the same time, the time-honoured Salmond passage puts forward the notion of “connected” acts. However, the cases show that what acts were performed in the course of a servant’s employment could, on occasion, be interpreted quite narrowly.A test based on “connection,” as suggested by Salmond, has, more recently, been treated as central by both the Canadian Supreme Court in Bazley and the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215.
33. Before considering these two very important cases, however, it is essential to note two points which are by now very well established in the case law. Firstly, a master may, in principle, be made liable even for criminal acts which he has not expressly authorised, provided the acts were committed in the course of the servant’s employment. Secondly, the master may, in certain circumstances, even be responsible for acts which he has expressly prohibited. Everything depends on the circumstances.
34. The first of these propositions can be traced back to the beginning of the twentieth century. In Cheshire v Bailey [1905] 1 KB 237, a silversmith hired a brougham and coachman from the defendant to show his wares to potential customers around London. The coachman, the employee of the defendant, helped confederates to steal the samples. The Court of Appeal rejected the claim for damages against the defendant. Collins MR held (at page 241) that the “the crime committed by the driver…… was clearly outside the scope of his employment,…” He ruled:
“It is a crime committed by a person who in committing it severed his connection with his master, and became a stranger; and, as the circumstances under which it was committed are known, it raises no presumption of negligence in the defendant.”
35. That dictum acts on the premise of strict logic. The act of theft was not authorised by the master and could not be considered to be within the scope of the authority conferred on the servant. I venture to suggest that no court would so decide today. The notion that I suffer the loss of my property which I have confided to a trader whose servant steals, with no recourse to the master, would offend both justice and commonsense.
36. The decision of the House of Lords in Lloyd v Grace Smith & Co [1912] AC 716 placed a different complexion on the matter. A widow, a client of a firm of solicitors, was defrauded by the managing clerk of the firm. The clerk fraudulently induced her to execute deeds transferring title in two cottages to himself and he then sold them for his own benefit. The Law Lords were unanimously of the view that the clerk had been acting within the course of his employment by the solicitor. The case is, in addition, clear authority for the proposition that the liability of the principal is not dependant on the principal having received any benefit from his servant or agent’s wrongdoing. Lord Shaw, at page 740, addressed the doubts that had been raised in that and other cases about the fact that the principal, a respected solicitor, was innocent of any involvement in the fraud as follows:
“I look upon it as a familiar doctrine as well as a safe general rule, and one making for security instead of uncertainty and insecurity in mercantile dealings, that the loss occasioned by the fault of a third person in such circumstances ought to fall upon the one of the two parties who clothed that third person as agent with the authority by which he was enabled to commit the fraud.”
37. Cheshire v Bailey was cited in argument befor the House but not expressly overruled. In the course of his speech, Lord Macnaghten cited a passage from the judgment of Willes J in Barwick v. English Joint Stock Bank L.R. 2 Ex 259, which has been treated as authoritative before and since:
“In all these cases it may be said, as it was said here, that the master had not authorized the act. It is true he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which that agent has conducted himself in doing the business which it was the act of his master to place him in.”
38. In Johnson & Johnson v C.P. Security [1986] I.L.R.M. 560 Egan J, in the High Court, awarded damages to the plaintiff against the defendant, a company providing specialist protection, when their own security officer facilitated thefts from premises he was supposed to be guarding. Egan J considered that Cheshire v Bailey was no longer good law in England. He referred to Lloyd v Grace Smith & Co and also cited Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716., where a company which had accepted a fur stole for cleaning, was held liable to the owner when one of its employees stole the item. While the judgments in the latter case turn very much on the law regarding bailments, it is notable that Lord Denning regarded the law as having been “revolutionised” by the House of Lords in Lloyd v Grace Smith & Co which Diplock LJ, in his judgment, described as a “landmark in this branch of the law.”
39. It is, therefore, a recurring theme that the vicarious liability of the master is explicable by reference to the fact that the master has put the servant in place to carry on a particular activity. It is not necessary that the master have authorised the particular act complained of and he need not have derived benefit from it. In Imperial Chemical Industries v Shatwell [1965] 1 AC 685, Lord Pearce stated:
“The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it.”
40. The second point which has been established in the cases is that an employer is not necessarily (necessarily being the key word) protected against liability merely because he has prohibited his employee from carrying out his work in a particular way. In Canadian Pacific Railway v. Lockhart [1942] AC 591, an employee drove his own uninsured motor car for the purposes of his work, in contravention of express orders to the contrary. However, his driving of the car was incidental to work which he was employed to do. (see also Limpus v London General Omnibus Co ((1862) 1 H & C 526). In Williams v A & W Hemphill Ltd 1966 SC(HL) 31, a lorry driver deviated substantially from his route contrary to instructions. An accident occurred on the detour due to the negligence of the driver. Lord Pearce on behalf of a unanimous House of Lords assessed the issue of vicarious liability by balancing the extent of the deviation against the connection with the work of the employer as follows, at p 46:
“Had the driver in the present case been driving a lorry which was empty or contained nothing of real importance, I think that so substantial a deviation might well have constituted a frolic of his own. The presence of passengers, however, whom the servant is charged qua servant to drive to their ultimate destination makes it impossible (at all events, provided that they are not all parties to the plans for deviation) to say that the deviation is entirely for the servant’s purposes. Their presence and transport is a dominant purpose of the authorised journey, and, although they are transported deviously, continues to play an essential part. It was said in argument that there must be some limits to that contention and that one could not hold that, if the driver had gone to Inverness, he would still be acting on his master’s business. No doubt there are such limits to the argument as common sense may set on the facts of each case. But when there are passengers whom the servants on his master’s behalf has taken aboard for transport to Glasgow, their transport and safety does not cease at a certain stage of the journey to be the master’s business, or part of his enterprise, merely because the servant has for his own purposes chosen some route which is contrary to his instructions.
“The more dominant are the current obligations of the master’s business in connection with the lorry, the less weight is to be attached to disobedient navigational extravagances of the servant. In weighing up, therefore, the question of degree, whether the admittedly substantial deviation of the vehicle with its passengers and baggage was such as to make the lorry’s progress a frolic of the servant unconnected with or in substitution for the master’s business, the presence of the passengers is a decisive factor against regarding it as a mere frolic of the servant. In the present case the defenders remained liable, in spite of the deviation, for their driver’s negligence.”
41. I pause at this point before considering the more recent authorities, to take stock of the ordinary rule concerning vicarious liability for the illegal acts of an employee. The second leg of the Salmond test has served the law well. It asks whether the act complained of is an unauthorised mode, adopted by the servant, of performing the work of the employer. Strict logic might suggest that fraud on the client (as in Lloyd v Grace Smith) or theft of the customer’s goods (as in Morris v C.W. Martin & Sons Ltd) could not be so considered. The law adopts a solution which is not strictly logical in this sense. Clearly theft of the customer’s property is not, in the ordinary sense, a mode of performing a service for that customer. The law asks, however, whether the act of the servant is “closely connected” to the employer’s work. It says that, where two parties (the cheated customer and the employer of the dishonest servant) are innocent, it is just, when assessing whether the servant was acting within the scope of his employment, that the employer, who employed the dishonest servant, rather than the customer should bear the loss.
42. The decision of the Supreme Court of Canada in Bazley v Curry 174 D.L.R. 45, delivered in June 1999, represents a significant development in this branch of the law. It raises directly the issue of liability for acts of sexual abuse committed by an employee. The case involved a non-profit organisation, which operated two residential care facilities for the care of emotionally disturbed children. The foundation authorised its employees to act as parent figures for the children. They were to do everything a parent would do, from general supervision to intimate duties like bathing the children and putting them to bed. The foundation had unwittingly employed a paedophile. He sexually abused one of the children. The abused child sued the foundation. The claim was based, not on any negligence in hiring the employee, but on vicarious liability. The Supreme Court of Canada upheld a finding by a lower court in favour of the plaintiff.
43. McLachlin J took the Salmond test as her starting point. She then engaged in a critique of the utility of the test. She considered that, in the absence of clear precedent, the courts should turn to policy for guidance. She adopted a two-stage approach to the second branch of the Salmond test:
“First, a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of broader policy rationales behind strict liability.”
44. She conducted a critical review of a number of the authorities, seeking to discern some underlying logic or unifying principle. For example, she speculated as to whether sexual torts are closer to physical assaults or, as she seemed to suggest, to financial dishonesty (because of its “trust-abusing” character). She criticised the Court of Appeal in England (in S.T. v North Yorkshire County Council [1999] IRLR 98) for engaging in semantics. The first-instance judge in Bazley itself had found for the plaintiff on the basis of the second leg of the Salmond test. He said:
“If a postal clerk’s theft and a solicitor’s clerk’s fraud can be said to have been committed in the course of their employment, I can see no sound basis in principle on which it can be concluded that Curry’s criminal conduct should not attract vicarious liability.”
45. McLachlin J then concluded that precedent did not resolve the issue, though the passage just quoted suggests that only an “unambiguous” precedent could satisfy the question she had posed for herself. It seems to me that it might well have been possible to decide for the plaintiff, as the first-instance judge had done, in reliance on the second part of the Salmond test. There was a close connection between the abusing acts and the work which the employees was required to perform. That approach accords more with the normal common-law method of incremental development of law based on precedent, resorting, where appropriate to analogy and distinction and applying commonsense of the sort described by Lord Pearce in the passage quoted at paragraph 39 above. McLachlin J considered that she must proceed to the second stage and inquire into “policy reasons for vicarious liability, in the hope of discerning a principle to guide courts in future cases.”
46. The learned judge proceeded to engage in a sophisticated analysis of the policy considerations which should underlie vicarious liability. The principal policy considerations were: “(1) provision of a just and practical remedy for the harm; and (2) deterrence of future harm.” In respect of the first, she referred to the employer being a “more promising source of compensation” and to the fact that the employer had created the enterprise which carries with it certain risks. Ultimately, and strikingly she came to the conclusion that:
“The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires.”
47. Finally, when applying the principles developed in her extensive review of policy considerations, she posed the question:
“The appropriate inquiry in a case such as this is whether the employees’ wrongful act was so closely connected to the employment relationship that the imposition of vicarious liability is justified in policy and principle.”
48. In the final analysis, it does not seem to me that the Supreme Court of Canada reached a result far removed from that attributed to the first-instance judge or which could have been derived from the existing case law based on the second part of the Salmond test, although, along the way, policy considerations played an important role. On the whole the named policy considerations all seemed to weigh in favour of an award to the plaintiff.
49. The central question before the House of Lords in Lister was succinctly summarised by Lord Steyn as being whether “as a matter of legal principle the employers of a warden of a school boarding house, who sexually abused boys in his care, may depending on the particular circumstances be vicariously liable for the torts of their employee.” (emphasis added). The claimants were residents in a boarding house attached to a school owned and managed by the defendants. The headnote to the report summarises the unanimous decision of the House as follows:
“…that having regard to the circumstances of the warden’s employment, including close contact with the pupils and the inherent risks that it involved, there was a sufficient connection between the work that he had been employed to do and the acts of abuse that he had committed within the scope of his employment and the defendants should be held vicarious liable for them.”
50. Lord Steyn regarded the decision of the Supreme Court of Canada in Bazley as having established a principle of “close connection.” While tributes are paid to the great advance wrought by Bazley, the House of Lords laid more emphasis, as I would, on justice, precedent and practicality. Lord Steyn, in particular, at page 223, took the Salmond test as having been adopted by English judges for nearly a century. He thought it was the “germ of the close connection test adumbrated by the Canadian Supreme Court…” He continued, at page 224:
“A preoccupation with conceptualistic reasoning may lead to the absurd conclusion that there can only be vicarious liability if the bank carries on business in defrauding its customers. Ideas divorced from reality have never held much attraction for judges steeped in the tradition that their task is to deliver principled but practical justice. How the courts set the law on a sensible course is a matter to which I now turn.”
51. Lord Steyn reviewed authorities, including Lloyd v Grace Smith & Co, which was a “breakthrough,” before emphasising the need for “an intense focus on the connection between the nature of the employment and the tort of the employee…” Lord Steyn’s concluded that vicarious liability existed in the case before the House as follows:
“Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.”
52. Lord Clyde also sought a “close connection” to establish vicarious liability and thought that, “in considering the scope of the employment a broad approach should be adopted…” In that way, (see page 234) an act “may be seen to be incidental to and within the scope of [the] employment.”
“If a broad approach is adopted it becomes inappropriate to concentrate too closely upon the particular act complained of. Not only do the purpose and the nature of the act have to be considered but the context and the circumstances in which it occurred have to be taken into account.”
53. Some greater connection than mere opportunity is needed, though one kind of employment situation is “where the employer has been entrusted with the safekeeping or the care of some thing or some person and he delegates that duty to an employee.” In such cases, “it may not be difficult to demonstrate a sufficient connection between the act of the employee, however wrong it may be, and the employment.” In particular, Lord Clyde stated at page 236:
“Cases which concern sexual harassment or sexual abuse committed by an employee should be approached in the same way as any other case where questions of vicarious liability arises. I can see no reason for putting them into any special category of their own.”
54. The decisions in Bazley and Lister constitute a development of the common law of vicarious liability. Those authorities would enable liability to be imposed, depending on the facts of the individual case, on employers for wrongful criminal acts of employees and thus for acts going beyond any theory of authority or of a merely wrongful mode of doing the employer’s work. While Bazley explores policy considerations, Lister clings to the incremental tradition of the common law. The test is to be the closeness of the connection between the abuse and the work which the employee was engaged to carry out. Lord Clyde said at page 237:
“In addition to the opportunity which access gave him, his position as warden and the close contact with the boys which that work involved created a sufficient connection between the acts of abuse which he committed and the work which he had been employed to do. It appears that the respondents gave the warden a quite general authority in the supervision and running of the house as well as some particular responsibilities. His general duty was to look after and to care for, among others, the appellants. That function was one which the respondents had delegated to him. That he performed that function in a way which was an abuse of his position and an abnegation of his duty does not sever the connection with his employment. The particular acts which he carried out upon the boys have to be viewed not in isolation but in the context and the circumstances in which they occurred.”
55. Lord Millett’s conclusion, at page 250, on the same issue is also important:
“In the present case the warden’s duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that in itself is not enough to make the school liable. The same would be true of the groundsman or the school porter. But there was far more to it than that. The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school’s responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys.”
56. The theoretical underpinnings of the doctrine of vicarious liability are much debated but no clear conclusion emerges. The result is that strict liability is imposed on an employer regardless of personal fault, which is especially striking when the acts are criminal and could not conceivably have been authorised even impliedly. Lord Steyn thought the imposition would be fair and just, if the necessary circumstances existed. Among the reasons suggested in the cases mentioned above is that the employer should bear the burden because he has “set the whole thing in motion” (Lord Brougham) or “has put the agent in his place…” (Willes J) or is“better able to make good any damage…” (Lord Pearce).
57. The High Court of Australia considered both Bazley and Lister in New South Wales v Lepore [2003] HCA 4; 212 CLR 511; 195 ALR 412; 77 ALJR 558 (6 February 2003). Although that case was not cited in argument on the hearing of the present appeal, I think it appropriate to refer to it as evidence of convergence of view between the final courts of important common law jurisdictions. Gleeson C.J., having referred to Bazley and Lister, stated that he did not accept that they showed that “in most cases where a teacher has sexually abused a pupil, the wrong will be found to have occurred within the scope of the teacher’s employment.” He added (at paragraph 73 of the judgment):
“ However, they demonstrate that, in those jurisdictions, as in Australia, one cannot dismiss the possibility of a school authority’s vicarious liability for sexual abuse merely by pointing out that it constitutes serious misconduct on the part of a teacher.”
58. He then commented further, at paragraphs 74 and 75, on the issues that would arise:
74. One reason for the dismissiveness with which the possibility of vicarious liability in a case of sexual abuse is often treated is that sexual contact between a teacher and a pupil is usually so foreign to what a teacher is employed to do, so peculiarly for the gratification of the teacher, and so obviously a form of misconduct, that it is almost intuitively classified as a personal and independent act rather than an act in the course of employment. Yet it has long been accepted that some forms of intentional criminal wrongdoing may be within the scope of legitimate employment. Larceny, fraud and physical violence, even where they are plainly in breach of the express or implied terms of employment, and inimical to the purpose of that employment, may amount to conduct in the course of employment.
75. If there is sufficient connection between what a particular teacher is employed to do, and sexual misconduct, for such misconduct fairly to be regarded as in the course of the teacher’s employment, it must be because the nature of the teacher’s responsibilities, and of the relationship with pupils created by those responsibilities, justifies that conclusion. It is not enough to say that teaching involves care. So it does; but it is necessary to be more precise about the nature and extent of care in question. Teaching may simply involve care for the academic development and progress of a student. In these circumstances, it may be that, as in John R, the school context provides a mere opportunity for the commission of an assault. However, where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment. The degree of power and intimacy in a teacher-student relationship must be assessed by reference to factors such as the age of students, their particular vulnerability if any, the tasks allocated to teachers, and the number of adults concurrently responsible for the care of students. Furthermore, the nature and circumstances of the sexual misconduct will usually be a material consideration.”
59. The last sentence of paragraph 74 places liability for acts of sexual abuse within the established common-law canon. Paragraph 75 explains that liability is by no means automatic.
60. Both Bazley and Lister were considered by O’Higgins J in the High Court in Delahunty v. South Eastern Health Board and Others, cited above. An attempt was made to fix liability on a religious order, which ran an orphanage, for a sexual assault perpetrated by a housemaster or, alternatively, on the Minister for Education and Science by virtue of the latter’s statutory responsibility. The facts were unusual. The plaintiff was not an inmate but a visitor to the orphanage. O’Higgins J held that that there was no such connection between the employment of the housemaster and the assault on the plaintiff as would justify the imposition of vicarious liability. He held that a fortiori the Minister could not be liable: the housemaster was not his employee and had no role in his hiring or firing. O’Higgins J appears, provisionally at least, to have accepted the authority of Bazley and Lister. I say “provisionally,” because O’Higgins J recalled that Costello J, in The Health Board v B.C. [1999] had said that he could not envisage any employment in which the vicarious liability would be engaged “in respect of a sexual assault could be regarded as so connected with it as to amount to an act within its scope.” That case is analysed the judgment of Hardiman J delivered today. The case did not concern common-law principles of liability but statutory provisions of the Employment Equality Act. In my view, the statement of Costello J has to be treated as obiter.
61. For the sake of completeness, I should mention that the issue of vicarious liability for damages arose in a very special and particular context in Shortt v The Commissioner of an Garda Síochána & ors [2007] IESC 9 . The defendants argued that the liability of the state for exemplary damages should be limited or modified where the primary liability was purely vicarious. Murray CJ held that there was no basis in law for limiting the liability of the State to pay exemplary or punitive damages by reason of the vicarious nature of its liability. The decision is of limited relevance in the present context. The primary liability of the State defendants arose from statute and was not an issue.
62. 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 & Co); the employee stealing the fur stole left in for cleaning (Morris v C.W. Martin & Sons Ltd) and the security officer facilitating thefts from the premises he was guarding (Johnson & Johnson v C.P. Security). 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] IEHC 132, O’Higgins, rightly in my view, held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.
63. The close-connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J provides an excellent example of practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley, the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.
64. In the present case, there is no claim against the manager or patron of the school. It is not, therefore, appropriate to decide whether vicarious liability should be imposed on the direct employer of the first-named defendant. In such a case, all the facts would have to be carefully considered or, to recall the words of Lord Steyn already quoted, there must be “an intense focus on the connection between the nature of the employment and the tort of the employee…” It may be relevant to consider whether it matters that the music lessons were not part of the ordinary school curriculum and were provided outside normal hours. Mr O’Driscoll Senior Counsel, on behalf of the second to fourth defendants referred to the residential setting of the abuse in both Bazley and Lister. Clearly, that may be a material factor. However, I express no concluded view.
65. The important question in the present appeal is whether liability can be imposed on the second to fourth-named defendants or on any of them, in other words, on the State. It is immediately necessary to note that, in each and every one of the cases on close connection, a direct employment relationship existed. The first-named defendant was not employed by the second-named defendant or by any of the other defendants. He was, in law, the employee of the manager, Canon Stritch. It is true that he was required to possess qualifications laid down by the second-named defendant and to observe the detailed and minute provisions of the Rules for National Schools. The State had disciplinary powers in relation to him pursuant to those Rules. However, the State did not have the power to dismiss him; nor was he originally engaged by the State. The scheme of the Rules and the consistent history of national schools is that the day-to-day running of the schools is in the hands of the manager. The inspection regime does not alter that. The department inspectors do not have power to direct teachers in the carrying out of their duties.
66. All of this is quite graphically confirmed by the facts of this case. It seems clear that no report was ever made to the second-named defendant or his Department of the complaints of sexual abuse against Mr Hickey, either the original single complaint made to Fr O’Ceallaigh in 1971 or the many complaints which surfaced in 1973. All that happened was that Fr O’Ceallaigh wrote a letter to the second-named defendant on behalf of Canon Stritch on 14th January 1974 informing him that the Mr Hickey had “given notice of his resignation…effective from Jan 31st 1974.” The same letter named the proposed replacemet teacher: Fr O’Ceallaigh said: “I plan to appoint…” All this further implies that the parents made their complaints, not to the second-named defendant, but to the manager, i.e., either Canon Stritch or, more likely, Fr O’Ceallaigh who was considered to be acting as de facto manager.
67. There was no employment relationship between Mr Hickey and the second-named defendant. Hardiman J discusses the principles concerning the degree of control over a person’s actions for the purposes of establishing vicarious liability. I prefer to express no opinion on the decision of this Court in Moynihan v. Moynihan [1975] IR 192, other than to observe that it is based on highly unusual facts. This Court was not asked, at the hearing of the appeal, to over-rule it. I cannot see that it establishes any precedent capable of being applied to the present case. On normal principles, the State has 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. I do not, of course, exclude the possibility of liability if it were to be established that, for example, an inspector was on notice of improper behaviour by a teacher and neglected to take action. That would not, however, be vicarious liability.
68. There is no legal basis in this case for the imposition of vicarious liability. For the same reason, insofar as it is necessary to say so, there can be no liability for the failure of Fr O’Ceallaigh to report the 1971 complaint. Fr O’Ceallaigh was not the employee of the second-named defendant.
69. For these reasons, I would dismiss the appeal.
Judgment of Mr. Justice Geoghegan delivered the 19th day of December 2008
This appeal is brought in an action for damages for personal injuries arising from a series of sexual assaults committed by the first-named defendant/respondent in the course of giving some out of hours lessons in a musical instrument to the plaintiff/appellant in the year 1973 in the national school then being attended by the appellant and of which the first-named respondent was the Principal. The appellant was born on the 20th November, 1964. The school was Dunderrow National School, Kinsale, County Cork and within the diocese of Cork and Ross. Although Leo Hickey has been named on the notice of appeal as a defendant/respondent, he is not in reality a respondent to this appeal in that a judgment in default of appearance was obtained against him and the damages have been assessed as against him by the High Court.
For convenience, I will henceforth refer to the second, third and fourth-named defendants as simply “the State”. The appeal is, essentially, against the finding by the High Court (de Valera J.) that the State was not vicariously liable for the above-mentioned acts of sexual abuse.
The school in question was an ordinary national school. I have deliberately included the adjective “ordinary” so as so make clear that any views which I will be expressing on the relevant law are intended to apply only to schools which are subject to the patronage of the local Catholic Bishop and of which he, or more usually the local parish priest, is manager. I suspect that the legal position would be exactly similar in relation to say the Church of Ireland national schools but because there is no information before the court relating to their exact status, I would prefer to confine my views to Catholic national schools of the kind I describe. I am, therefore, excluding from the ambit of this judgment national schools which are owned by religious orders such as, for instance, the Christian Brothers. Different principles may or may not apply to them. Needless to say, no view which I will be expressing should be taken as applying to secondary schools funded by the State.
In considering the issue of vicarious liability (if any) on the part of the State, it is not in dispute that a teacher in an ordinary national school of the kind that I have described including the principal of that school is in a contractual relationship with the manager of the school. In other words, the Manager is the employer. Under the law of contract, it is, of course, conceptually possible in some instances for a party who enters into a contract as an agent (whether disclosed or undisclosed) to become personally liable on the contract in addition to his principal. It may not be beyond argument therefore, that the manager of an ordinary national school is contracting as agent for the patron, i.e., the Bishop and that the Bishop could himself be liable. What is certainly beyond argument is that the State is not in a contractual relationship of any kind with the teacher including the principal.
It seems clear, however, on the authorities that vicarious liability is not necessarily confined to the tortfeasor’s employer in the contractual sense. But even in the case of an employer, an employer will not be liable for acts done wholly outside the scope of authority. However, as MacMahon and Binchy point out in the 3rd edition of “Law of Torts” at p. 1102 there is good authority for saying that “within the scope of authority” is a phrase which must be interpreted liberally in favour of the injured plaintiff. The learned authors cite in particular in support of this proposition an unreported judgment of this court delivered the 29th July, 1955 in Doyle v. Fleming’s Coal Mines. In the context of sexual assault, a useful discussion of the “scope of employment” issue is contained in the judgment of Gleeson C.J. in an appeal to the High Court of Australia in the case of New South Wales v. Lepore 212 CLR 511 and which is, I think, the leading case on this subject in Australia. Gleeson C.J. commences his judgment as follows:
“If a teacher employed by a school authority sexually abuses a pupil, is the school authority liable in damages to the pupil? No one suggests that the answer is ‘no, never’. In Australia, at least until recently, an answer ‘yes, always’ would also have been surprising. More information would have been required.”
What seems clear from that case and from others is that common law jurisdictions such as Australia, Canada and England have long abandoned the principle (if it ever existed) that there cannot be vicarious liability for deliberate unauthorised acts. Indeed in this particular appeal, as I understand it, the issue of scope does not really arise. The issue is whether under the national school arrangements, the State is so disconnected from the individual teacher including a principal that it cannot in any circumstances be vicariously liable for torts committed by those teachers.
My reason, however, for diverting into the issue of scope is to make it clear, as I will be doing later, that there can be no circumstances whatsoever in which the State would be vicariously liable for a teacher’s tort where the manager and/or patron were not.
Regrettably, this court has become aware through the numerous judicial review cases seeking to stop criminal trials that in many instances there have been alleged sexual assaults by teachers in a semi-concealed fashion in the actual classroom while teaching. That is an extreme case and is surely one in which under the modern jurisprudence, the manager and/or patron would be vicariously liable. At the other end of the spectrum, however, there may be cases where a teacher, say, arranges to meet with a pupil during holidays, takes that pupil to bed with him and sexually assaults the pupil. That may arguably be so outside the scope of the employment that there would be no vicarious liability on the part of the Church authorities and, of course, ipso facto none on the part of the State. Obviously, there can be grey areas in between. But in my view, this case would not be one of them. I do not think it is or could be seriously contested that music lessons given on a voluntary basis out of hours in the school premises by no less a person than the principal could be regarded as outside the scope of employment for the purposes of vicarious liability.
In both sets of written submissions on this appeal, the case of Fox v. Higgins (1912) 46 I.L.T.R. has been referred to. Gibson J., sitting at nisi prius in the then High Court had to grapple (which he did with great difficulty) with the interaction of the relationship between teacher and Manager on the one hand and the relationship between the then National Board of Education (now the Minister for Education and Children) on the other hand. At the end of his judgment, he observed as follows:
“On this somewhat confused legislation the fair inference is that the National Board, the Manager and the teacher are put together in a kind of triangular pact, and if the Manager accepts the terms of the National Board for the School, and undertakes for the teacher that he shall have the benefit of the National Board Rules, and if the teacher is assigned a contract which would bind him, then the Manager is bound, in my opinion in the same way and to the same extent as if he had signed the contract.”
That last part of the quotation refers to the quite different context in which Gibson J. had to consider the relationship. But his reference to a “triangular pact” is useful and, in my opinion, relevant to this case, for reasons on which I will elaborate later. I am in broad agreement with paragraph 7.8.4. of the appellant’s submissions to this court which reads as follows:
“The employment context of a national school teacher cannot be fully explained by reference to a simple contractual relationship between the national school teacher and a manager or, more recently, a Board of Management. The true relationship has been described as a complex tripartite legal relationship – or, by Gibson J. in Fox v. Higgins ‘a kind of triangular pact’. Ultimately when one applies the legal test set out above (for ascertaining whether or not there exists a relationship of vicarious liability) to this triangular pact it appears that vicarious liability should be imposed on the respondents for the acts of the first-named defendant.”
I would accept that even if the State can be vicariously liable in some circumstances for the torts of a teacher or especially a principal of a national school, the manager and possibly the patron would also be vicariously liable. The converse however would not be true. I would not contend that the State could be liable for ordinary negligent accidents that may occur in the day to day running of a school such as, for instance, the neglect by a teacher properly to supervise a recreation. Unless there was some kind of consistent pattern of such accidents, events of that kind would be wholly outside the ambit of the State’s role in primary education. Whilst therefore in such a situation there would be vicarious liability on the part of the Manager there would be no such liability on the part of 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.
It is important now to examine in some depth both the factual position as to the relationship between the State and the school on the one hand and the factual context in which the sexual assaults occurred.
The State has an obligation to provide for free primary education under Article 42.4 of the Constitution which paragraph provides as follows:
“The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.”
Under the terms of the previous paragraph, i.e., paragraph 3, the State must not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State or to any particular type of school designated by the State. But the paragraph goes on to provide:
“The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.”
The School Attendance Acts form part of the compliance by the State with that last mentioned obligation. For all practical purposes, most of the primary education in this country has taken the form of a joint enterprise of Church and State. By “joint” I do not mean that each has the same function but rather that a school system resulted from complementary functions carried out together by the Church and State. As was made clear in the evidence in the High Court the primary system of education in Ireland has its origins in the early part of the 19th century and it also has its roots in the concerns of the different churches that their particular ethos would be reflected in schools of that ethos. I have already postulated at least the possibility of a relevant difference between primary schools owned by the Bishop on the one hand and primary schools owned by a religious order running a school on the other. I think it would be fair to say that the Bishops’ concerns have been essentially directed towards the religious aspect and their desire to control education is incidental to that end. On the other hand, an order like the Christian Brothers are professional educators as well as religious evangelists. If there were no constitutional difficulties about the State entirely withdrawing its role in relation to traditional national schools and if it did so, I would rather doubt that a Bishop, to say nothing of an ordinary parish priest, could cope with the running of schools on their own. In my view, the State plays a crucial role and this is reflected by the expert evidence given in the High Court. I will, in due course, return to the question of whether in these circumstances there should be vicarious liability on the part of the State for the acts complained of in this case. For the present, I will continue with the facts.
In the High Court there were two key witnesses in relation to State involvement called by the State. One was Professor Coolahan, Professor of Education at NUI, Maynooth and the other was Mr. McGleannain, a retired school inspector who in fact had ended his period in the Department as Chief Inspector. Professor Coolahan not only gave fascinating evidence as to the history of the national school system but gave it with quite outstanding clarity. He explained that at the beginning of the 19th century there were various types of schools. In particular there were the so-called “hedge schools”. From time to time there was agitation in the U.K. parliament that the State should give support to educational endeavours in Ireland particularly for Catholics who were the poorest of the population. In October, 1831, the Chief Secretary for Ireland, Lord Stanley took action. A famous letter issued at that time formed almost the only legal basis (apart from the Constitution itself) for the primary education system for over a hundred and fifty years. However, the churches expressed concern about the undenominational nature of the intended education. The Commissioners of National Education, the predecessors of the Minister for Education were established and they made it clear that they were not running a state system of schooling but a state support system, though they did establish a few schools of their own. However, the State support schooling was not simply confined to funding but was conditional on the compliance with circulated rules and regulations. Professor Coolahan, however, made it clear that the school manager appointed the teachers more or less in whatever manner he thought fit but when asked in direct examination did the hierarchy ever acknowledge that the Minister had a role in choosing a school manager or school principals or school teachers, the professor replied as follows:
“Not in the choosing, but, yes, in the question of credentials and teaching qualifications. The rules and regulations set down by the State would have set down that you could not be appointed a principal unless you were a qualified teacher, so much experience, and things like that. These would be laid out and it would be expected that the manager would have to comply with this, and also inform the Department of the situation.”
I will return later to the question of what might be regarded as “credentials and teaching qualifications”. At this stage the cross-examination of Professor Coolahan becomes important. Having given interesting but not particularly relevant evidence relating to the teaching of religion in the schools and the original difference of opinion between the Bishops and say the Christian Brothers as to the rigid division between secular and religious teaching, Professor Coolahan was then asked about secular inspection. He had already given evidence about diocesan inspectors in relation to religious teaching. When asked were there inspectors “in other areas” his answer was:
“Oh, yes. The Inspectors, right from the beginning in 1833, you got an inspection system established as soon as the national system was established, really, and by the 1850s you got a very elaborate structure of inspection established for primary schools, which tended to be very interventionist. Each Inspector had so many schools allocated to him or her and then there were district and Head Inspectors established to oversee the routine inspection. The Inspector would visit the school on a fairly regular basis and sometimes carry out more extended examinations than other times, but the inspector also, be it he or she, mainly he in the early years, would carry out probation of the teachers newly appointed and so on.”
In passing, I would make the comment at this stage that it must have been always inconceivable that an inspector, who learned about inappropriate assaults whether sexual or otherwise on pupils, would not have taken up the matter with the powers that be and I doubt very much that it would have stopped with the Manager. Essentially, the Inspector was there to report back to the Department in the new state or the Board in the old state. Later on in his evidence under cross-examination, Professor Coolahan, referring to these inspections made the following interesting comment:
“Reportage was a remarkable feature. I suppose the whole Victorian tradition. Reportage of the inspectors on their school visitations was very extensive all through the years and it has continued. The Primary School Inspectors – well, now it is primary and secondary, it is one inspectorate, but up till fairly recent times the primary school inspectorate was a distinct cadre of inspection which was much more closely linked to the schools and much more authority in the schools than would have been the case, say, in the secondary school inspectorate.”
Professor Coolahan was then asked to expand on the distinction between the primary and secondary inspectorates before the merger. He said he could explain it and he went on to observe as follows:
“It lies in this context, that the rules and regulations for national schools were established very early on and the Inspector was appointed as the key agent to ensure, from the point of view of the Commissioners at first and later the Department, that rules and regulations were fulfilled and that teachers were efficient in the carrying out of their professional duties. That got readily established and was accepted by all concerned, right through the 19th century, so a tremendous tradition was built up in the Irish national school inspectorate. In terms of international terms, it is remarkably interesting. But anyway the situation in post-primary inspectorate for secondary schools was very, very different. The secondary schools were purely private institutions, denominational, as well and when the Inspectorate was appointed, it began in 1908/09, the Secondary School Inspectorate really became established – they were not always, shall we say, treated with open arms by some of the school authorities, because particularly some of the Church still felt this was an intrusion by the State in their patch, if you like. Some inspectors have on record, even in the 1920s, secondary school inspectors visiting secondary schools and being tolerated rather than, shall we say, warmly welcomed. There was always a different tradition and very much tentative at secondary level. The primary inspectorate had a much more engaged role and responsibility and much more widely accepted. Of course it has changed now more or less at all levels.”
I make no apologies for continuing with Professor Coolahan’s evidence at this point because I think it is highly relevant to the issues on this appeal. The questioning and answers continued as follows:
“Q. How do you mean ‘changed now’?
A. The Inspectorate has been restructured now and they are much more accepted at post-primary schools, as well.
Q. How important is the Inspectorate or was the Inspectorate until – I suppose things changed a bit with the introduction of the Boards of Management?
A. Yes.
Q. Up to the mid-1970s, how important was the Inspectorate?
A. Indeed, right up until now, it is still very important. Inspectors are a key agency by which the Minister satisfies him or herself about the quality of the system. Indeed, a National Education Convention that I was involved in, in 1993/94 – I suppose it was the biggest, shall we say, consultative discussion on Irish education in a structured format. One of the striking things that emerged a thing that stays in my mind was the regard and concern for the Inspectorate by all parties. It was quite a striking feature, how much teachers, managers and parents and so on wanted the Inspectorate to stay as a key agency within the Irish school system. The Irish Inspectorate, particularly at the primary level, coming back to your question, was a very vibrant and active agency within the system and the Commissioners and Ministers relied a lot on the Inspectorate to keep it informed of the progress of the system in regard to secular instructions.”
The Professor went on to state that they never interfered with religious instruction. But when it was put to him that it would be fair to say that in relation to education outside religious instruction the role of the Inspector would be fairly wide ranging he agreed. Later again in his evidence, the Inspector agreed with Mr. Callanan, S.C. in cross-examination that the Inspector’s remit “would not be a narrow one, simply to ensure say that the curriculum was being taught, it would not be formalistic, it would be an assessment of the overall effectiveness of a teacher and the suitability of a teacher.” Professor Coolahan broadly agreeing with that proposition went on to explain that the Inspectors would also enquire about issues that might occur locally in relation to schools such as sites of schools, the efficiency of the school, the tone of the school, the efficiency of the teaching whether there were good relationships etc., but also whether there were poor conditions. It would not just be a question however of an inspector writing these matters down and reporting to his Department, he would take these matters up directly with the Manager. Mr. Callanan put to the Professor a particular extract from a particular Inspector’s report translated from the Irish reading: “The teacher has a good personality …”. It then emerged that this was a reference to Mr. Hickey, the first-named defendant in this case. The next extract is significant: “The teacher has a good personality but does not sufficiently try to encourage the pupils to participate in the learning. It appears that he should be able to do that.” Mr. Callanan suggested that a kind of assessment of personality and the suitability of the teacher were relevant to an inspector’s report. The actual answer of Professor Coolahan to that suggestion is of some significance:
“Certainly, yes, and mode of relating with pupils and engaging with them. I think that would be quite usual to get comments like that.”
The dialogue between Mr. Callanan and Professor Coolahan then continued as follows:
“Q. If a serious issue arose in relation to a teacher, that is something that would go to the Inspector?
A. I think if a serious issue arose about a teacher .. now whether it would automatically go to him is another matter, but certainly if it was drawn to his attention he would take an interest in that and explore that issue.”
Essentially, the Professor agreed with the questions being put to him and the effect of his answers was that the Inspector would become involved in these issues both with the manager and the Department. The Professor explained that undoubtedly the Inspector was a major conduit between the Department and the local school and that from a practical point of view this precluded parents from writing to the Minister “which happens a lot.”
I would merely comment at this stage that it would beggar belief that if parents were aware of any kind of systematic sexual assaults by a principal in a school which was not being attended to by the Manager, the matter would not be taken up with the Department. Of course, the Department could reply “we have no role”. But I do not think that is the thrust of the evidence of Professor Coolahan.
One of the extraordinary features of this case is that the charges to which the first-named defendant pleaded guilty on the criminal side in relation to this plaintiff were sample charges. The plaintiff was only one of a number of children at the time who were allegedly sexually assaulted by the first-named defendant. Nevertheless, it is accepted that no fault whatsoever attaches to the Department in the sense that the Department had no knowledge of any such assaults and that includes the Inspector. There is, therefore, no question of any vicarious liability on the part of the State for some negligence on the part of the Inspector. In the High Court, there was a suggestion that the curate in the parish who was, for all practical purposes, the acting Manager (the Parish Priest, Archdeacon Stritch being indisposed) did receive some form of complaint and that depending on whether that complaint was reported on to the Department or not, the Department was either directly or vicariously liable. That suggestion is now abandoned.
Professor Coolahan went on to further agree that it would be his surmise at least that if an inspector in the course of his duties in a school discovered there was a serious issue of misconduct operating there, that would be an issue he would report back to the Department as well as to the Manager. When asked whether, for example, if a parent had complained about a teacher that would be something that might be raised with the Inspector or indeed for the School Manager to raise with the Inspector, Professor Coolahan agreed that that would be true and went on to make the following interesting comment:
“What would be more likely to happen, however, in the tradition was that the parent to a good extent was external of the system up until recent times and he or she would have no awareness of Inspectors’ time or duties or calling in any way. What would happen more often would be that the parent would send a complaint to the Minister .. that used to be a strong tradition, actually, probably much more so in the older days than today and then it would be likely drawn to the intention of the Inspector to investigate it.”
Mr. Callanan then went on to suggest that the School Manager would not have a particular qualification in relation to education or teaching or indeed the management of schools. The Professor, however, explained that this was largely chance. Some would have a huge interest and some would not.
The evidence of Professor Coolahan then went on to establish that under the Department of Education Rules, where the Minister was satisfied that a teacher had conducted himself improperly or had failed to comply with the Rules, penal action including prosecution, withdrawal of recognition and reduction of salary might be taken when in the opinion of the Minister such action was warranted. Indeed the evidence established that the State does have the right to impose very significant sanctions including withdrawal of recognition which could affect employment in other schools. Furthermore, although the Manager appoints a teacher including a principal, that appointment is subject to the approval or the sanction of the Minister or the Department. Mr. Callanan then put to Professor Coolahan Rule 121 of the 1965 Rules sub-rule (2) which provided as follows:
“Teachers should pay the strictest attention to the morals and general conduct of their pupils.”
The Professor went on to explain that in early days the teachers were very much seen as role models and as he put it “they were not to be questioned, people of Christian sentiment, quiet disposition, obedient to authority and so on and so forth.” Counsel pointed to Rule 68 which required that the teacher should constantly “inculcate moral virtues, including purity”. The Professor agreed. He was then asked a significant question:
“Q. To what extent do you consider that the fact the national school system is backed by the State and the Inspectorate is important to the public confidence, the confidence of parents in particular, in the national school system in Ireland.”
Professor Coolahan said he thought it was very important, in particular he considered that a striking feature of the system was the confidence the public had in the system at different levels. He thought that at primary level there was a confidence “that the Department knows what it is about, in that it has a tradition established to its Inspectors and its policy makers and so on and so forth of being a caring Department and a progressive Department.”
After Professor Coolahan had ended his evidence, the learned trial judge asked a number of questions. In particular he asked whether there was any structure or machinery whereby parents could contact the Inspector. The witness did not think there were but possibly a special appointment could be made. In relation to what the judge called “the 1970 to 1974 period” the Professor made the following observation:
“I think what was happening there was that parents themselves, at least middle class parents, anyway, were getting much more articulate about their roles and rights and much more exercised about this. There were parent movements and their pressure for parent involvement in management boards was coming to the fore. In the Irish tradition, my honest view is that parents had a tradition of contacting the Department about any grievances they had or problems, and that could include teachers or Inspectors. As a matter of fact, I think there is a great amount of documentation in the Department about that, Irish parents writing into the Department about problems.”
Just before the witness withdrew, it emerged not only would parents contact the Department on quite a regular basis but teachers would also do so.
I turn now briefly to the evidence of Mr. McGleannain, the Inspector. He made clear that no complaint was ever made to him about any of the alleged misbehaviour of the Principal, Mr. Hickey. Under cross-examination however, he was asked the following question and gave the following answer.
“Q. If, for example, it came to your attention that a teacher was of bad character, for whatever reason, that would be something which within the rules you would feel it appropriate to report upon to the Department. You might almost report upon it to the Manager, but it would be appropriate to report it to the Department?
A. The procedure would be you would visit the school to try to establish for oneself whether in fact there was any possible substance in the complaint or the report, and you would next bring it to the attention of the Manager of the school, and then you would prepare a report and a recommendation and send it to the Department.”
He explained that the reporting to the Department would, in practice, be to the Deputy Chief Inspector. Mr. McGleannain then agreed with counsel that the Department, through the Deputy Chief Inspector, would take an interest in the report and would consider a number of alternatives possibly further investigation by Mr. McGleannain but, ultimately, would consider whether or not action was required. It was then also put to the Inspector that another channel to which complaints could be made would be direct complaints to the Minister. He confirmed that that was so. He also confirmed that in such a situation he would be required to investigate the complaint with the teacher, the Principal and the Manager. When asked whether if a teacher was guilty of misconduct of any kind there could result a disciplinary action under Rule 108 of the relevant Rules, Mr. McGleannain explained that if the misconduct was within the area of the curriculum that would be so but otherwise would have to be “referred onwards”. That expression was explained later as meaning superiors within the Department of Education. However, the Inspector accepted that if he had become aware of sexual abuse of a pupil or a serious allegation of such abuse, he would “certainly” have reported that to the Department. He went on to say that the first line of investigation would be by the Manager and from there it would go to the Department. There then followed the following questions and answers:
“Q. If the Manager failed to act – assume for a second that there was sexual abuse – if the Manager failed to act appropriately, the Department would have within its power to take the necessary action by, for example, withdrawing recognition of the teacher; is that not correct?
A. There would be a formal investigation.
Q. Conducted by the Department?
A. Conducted by a DCI (Deputy Chief Inspector).
Q. I think the last witness mentioned that the Department retained to itself, or the Board perhaps in the older days, the right to suspend a teacher for whatever reason might arise, and presumably that might arise in the context of an investigation of a sexual nature?
A. The withdrawal of recognition is what the Minister would have now, the suspension would be a managerial function.”
Under further questioning, the Inspector made it clear that if an allegation of sexual assault by a teacher on a national school pupil was considered well-founded by the high powered inquiry set up by the Department, it could lead to withdrawal of recognition or to a garda investigation but if the option of a garda investigation was adopted and if the gardaí found the complaint justified then there would be withdrawal of recognition. Indeed, Mr. McGleannain accepted that it was “really inconceivable to imagine that there could be any other result”. The Inspector then accepted that for all practical purposes withdrawal of recognition was a dismissal from the school. In this connection, there was a major difference between dismissal by the Manager and withdrawal of recognition by the Department. If there was an ordinary dismissal by the Manager, the teacher might obtain an alternative position in another school. If, on the other hand, recognition was withdrawn that in effect meant that his licence to teach was withdrawn.
My reason for covering in such detail the evidence of Professor Coolahan and Mr. McGleannain is to demonstrate 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.
With that factual background, I turn now to the question of law as to whether this State could be held to be vicariously liable of the sexual assaults complained of.
Although it is trite law, it is nevertheless useful to reiterate that a person or body who is vicariously liable is not by definition himself or itself at fault. In other words, vicarious liability is a form of strict liability. I think it is fair to say that in the common law world generally there is a pragmatic element involved as to when and where vicarious liability is imposed. Two passages from MacMahon and Binchy on the Law of Torts 3rd edition neatly summarise the position. The first is at paragraph 43.02 and reads as follows:
“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 17th 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 to distribute the loss by price controls and through proper liability insurance. Liability in these cases should, it is felt, follow ‘the deep pocket’.”
The authors go on to point out, of course, as I have done that the wrongs must arise out of or be within the scope of tortfeasor’s “employment”. This condition has given rise to much litigation but I do not think it is an issue on this appeal. The second passage is contained in paragraph 43.04 of the same work:
“The instance given above where vicarious liability can arise – between employer and employee, principal and agents, and firm and partner – do not constitute an exhaustive list. 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.”
The learned authors go on to deal with a decision of this court which they described as having “strikingly illustrated” the above principles. This is the case of Moynihan v. Moynihan [1975] I.R. 192. Bearing in mind the wholly different factual situation in that particular case and indeed at any rate, I am not placing any reliance on it in the views which I will be expressing. As I see it, that was a sui generis decision if ever there was one. It was vicarious liability for the turning over of a teapot by a young child in a private family house. I would prefer to base my judgment on the broad principles, as referred to in MacMahon and Binchy and as adopted by the mainstream common law courts.
Perhaps the leading modern case in common law jurisdictions is Bazley v. Curry 174 D.L.R. 45 which was a decision of the Supreme Court of Canada delivered on the 17th June, 1999. The judgment with which the other members of the court concurred was delivered by McLachlin J. In that particular case a children’s foundation, a non-profit organisation, operated two residential care facilities for the treatment of emotionally troubled children. The Foundation authorised its employees to act as parent figures for the children. The Foundation hired a paedophile to work in one of its homes without knowing he was such. In fact it had checked him out and had been informed he was a suitable employee. The Supreme Court of Canada upheld the decision of the Court of Appeal to the effect that the Foundation was vicariously liable notwithstanding no fault on its part. At page 14 of the internet version of her judgment McLachlin J. under the heading “Policy Considerations” says the following:
“Vicarious liability has always been concerned with policy: Fleming (Law of Torts) at pp 409 et seq. The view of early English law that a master was responsible for all the wrongs of his servants (as well as his wife’s and his children’s) represented a policy choice, however inarticulate, as to who should bear the loss of wrongdoing and how best to deter it. The narrowing of vicarious responsibility with the expansion of commerce and trade and the rise of industrialism also represented a policy choice. Indeed, it represented a compromise between two policies, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant and a concern not to foist undue burdens on business enterprises: Fleming, ibid. The expansion of vicarious liability in the 20th century from the authorisation – based liability to broader classes of ascription is doubtless driven by yet other policy concerns.
‘Vicarious liability cannot parade as a deduction from legalistic premises but should be frankly recognised as having its basis in a combination of policy consideration.’ (Fleming at p. 410)
The focus on policy is not to diminish the importance of legal principle. It is vital that the courts attempt to articulate general legal principles to lend certainty to the law and guide future applications. However, in areas of jurisprudence where changes have been occurring in response to policy considerations, the best route to enduring principle may well lie through policy. The law of vicarious liability is just such a domain.”
Later on in the judgment, the learned judge further observes as follows:
“First and foremost is the concern to provide a just and practical remedy to people who suffer as a consequence of wrongs perpetrated by an employee. Fleming expresses this succinctly (at p. 410)
“A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.”
…. This principle of fairness applies to the employment enterprise and hence to the issue of vicarious liability. While charitable enterprises may not employ people to advance their economic interests, other factors discussed below, make it fair that they should bear the burden of providing a just and practical remedy for wrongs.”
In a later decision of the Supreme Court of Canada in Blackwater v. Plint [2005] 3 S.C.R. 3, the court approved in a sexual assault case a trial judge’s finding of joint vicarious liability against the Church and the State. In that particular case fault was apportioned 75 per cent to Canada and 25 per cent to the Church.
The relevant Canadian cases have all been put before this court but I do not want unnecessarily to lengthen this judgment by going into them in more detail than I have done. It is sufficient at this stage to note that in the leading House of Lords decision in Lister v. Hesley Hall Limited [2002] 1 AC 215 Bazley v. Curry was broadly approved and applied and other Canadian decisions were also relied on including Jacobi v. Griffiths [1999] 174 D.L.R. (4th) 71 also included in the books of authorities before us. The Lister case itself was primarily concerned with scope and is not particularly relevant to this case
Fennelly J., at the hearing of the appeal, asked counsel for the appellant why the Church was not sued. He was using the expression “the Church” in a broad sense. Indeed he may not have used that precise word but it was to that effect. At first, no satisfactory answer was given but later it seemed to emerge that the main reason was a practical one of having to sue legal personal representatives of the deceased Manager Archdeacon Stritch or possibly of others such as the deceased Bishop Lucey or the deceased Fr. O’Ceallaigh, the curate who was for all practical purposes acting Manager after so many years. I ask myself whether in the context that this appellant was not to blame for delaying bringing her proceedings (for all the reasons well known to the court) does she have “a just and practical remedy” to use the words of McLachlin J. in being forced to sue anyone or more of the following:
“1. The personal representative of Archdeacon Stritch.
2. The personal representative of Bishop Lucey, the relevant Patron at the time.
3. The personal representative of Fr. O’Ceallaigh who appears to have been the acting Manager.”
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.
There is another proviso which I would add. 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 the diocesan assets. But none of that arises here. I think there have been many cases in the past where actions have been brought against a diocese relating to events that occurred under a former Bishop and where a current Bishop would not take the point either as a matter of honour or because of insurance cover or both. But again none of that arises in this case. I have only concerned myself with the issue of whether irrespective of church liability vicariously or otherwise there should be on the facts of this case vicarious liability on the part of the State. There is no direct precedent that can be relied on because of the unique triangular relationship already described in the case of primary schools in Ireland which are Church managed but subject to State regulations. Applying the general modern principles underlying vicarious liability, I take the view that it is wrong to exempt the State from vicarious liability in this case and I would, therefore, allow the appeal.
Phelan v Coilte Eireann
[1993] IR 18
James Phelan Plaintiff v. Coilte Teoranta, Ireland, The Attorney General and The Minister for Fisheries and Forestry Defendants
[1989 No. 3287P]
High Court 12th October 1992
Barr J.
12th October 1992
Liability
The facts on this issue are not in dispute and are as follows:
The plaintiff is 37 years of age, married with one child. He was 32 years old at the time of the accident the subject matter of this action which happened on 1st September, 1987. The first defendant “Coilte”is a company owned by the State which operates and manages all State forests for and on behalf of the fourth defendant. The plaintiff joined Coilte in March, 1985, and at the time of the accident was employed by it as a heavy machinery operator on foot of a contract of service. Mr. Michael Carwood is a welder/fitter by trade who from 1968 carried out work for Coilte in that capacity. Much of his work included the carrying out of structural repairs to heavy machinery which became damaged in course of operation. Where possible such a task was carried out at the forest where the disabled machine was lying.
In the month of August, 1987, the plaintiff was working at the Slieve na Mon Forest, County Tipperary, on a heavy machine called a “forwarder”which was owned by Coilte. Its primary purpose is to convey trunks of trees from the place where they are felled. However, the machine can also be fitted with tanks and long arms so that it can be used to spray ground where new trees are to be planted. The plaintiff was engaged in such work on steep terrain when the machine turned over and part of the steel superstructure of the spraying unit was damaged. Mr. Carwood was instructed by a Coilte engineer or supervisor to go to the forest and carry out repairs to the machine. On the 1st September, 1987, when the plaintiff reported for duty, he was instructed to go to the forest and assist Mr. Carwood in repairing the frame of the “forwarder”. It appears that the latter had been working on it for some time prior to that date. When the plaintiff arrived at the scene he helped Mr. Carwood to repair the sprayer tanks. In course of that work it transpired that some new brackets were required for the tanks and the plaintiff was dispatched to the depot in Clonmel to get what was needed. During the course of the afternoon they finished work on the tanks and Mr. Carwood asked the plaintiff to give him a hand in lifting one of the arms of the sprayer into position. He intended to bolt it to the frame. The plaintiff bent down close to the machine and while in the act of lifting his end of the sprayer arm, a substantial section of the frame, which was about five feet above him, fell, struck his lower back and knocked him to the ground. As a result of the accident he sustained personal injury.
Mr. Carwood explained to the plaintiff how the section of frame had fallen on him. It appears that he (Carwood) had cut it from the frame by severing various steel members, removed it for repair and then had realigned it in its original position to await welding. It appears that the section of frame fell of its own volition and without warning.
It was conceded by counsel for Coilte that what Mr. Carwood had done was patently negligent and that the unwelded section of frame was a potential hazard for anyone working in its vicinity. The issues on liability concern the status of Mr. Carwood vis-Ã -vis Coilte and are twofold. Was the negligent fitter/welder a servant of Coilte or an independent contractor employed by it? If he was employed under a contract of service then, of course Coilte would be vicariously liable for his negligence and answerable to the plaintiff in damages. However, it was also argued on his behalf that even if it were held that Mr. Carwood was an independent contractor at the time of the accident who was working for Coilte under a contract for services, the employer would be liable to the plaintiff because it had failed to provide him with a safe system of work and safe place of workduties which it cannot delegate to a third party.
The status of Mr. Carwood vis-Ã -vis Coilte
In 1968, Mr. Carwood was an experienced fitter/welder. Coilte required the services of such a tradesman but had decided that the person engaged would not be employed on the same basis as its forestry workers, who had contracts of service which provided, inter alia, that they would receive a weekly wage, holiday pay and pensions on retirement.
They also worked subject to the direction and control of their superiors who instructed them what to do and, if necessary, how to do it.
Mr. Carwood was interviewed by Mr. A.J. Dalton, one of Coilte’s engineers, who also gave evidence. It was agreed that, in effect, he would work full-time for Coilte. His job would take him to forests all over the State wherever machinery required his attention. He would be told by a supervisor or engineer where to go and what work was required. He would be paid an agreed price per hour together with a mileage allowance for his own vehicle. He would provide his own tools and equipment. A new hourly rate was negotiated each year. He was not entitled to holiday pay and had no pension rights. The procedure as to payment was that Mr. Carwood furnished monthly invoices to Mr. Dalton who checked them, after which they were paid by the accounts department, including V.A.T. No P.A.Y.E. tax or P.R.S.I. contributions were deducted by Coilte. As to instructions for work; on some occasions Mr. Carwood met a Coilte engineer on site who might give him instructions on what was to be done. In most cases an engineer or supervisor would make contact and ask him to attend to a machine which had broken down or had been damaged in a particular forest. He would go there and fix it as soon as he could. Mr. Carwood did not provide any labour for Coilte other than his own. From time to time it directed one of its employees to assist him, as happened in the instant case. 99% of his time was spent working for Coilte from the date when he joined it originally. His employment ended some years after the accident due to a new policy adopted by Coilte at that time of hiring machinery rather than supplying its own.
The law
Having regard to the wide range of particular circumstances from case to case, it is not possible to devise any hard and fast rule as to what constitutes a servant and what constitutes an independent contractor. Each case must be considered on its own special facts in the light of the broad guidelines which caselaw provides. The predominant thread which runs through most of the authorities is that of control of the employee by the employersee Roche v. P. Kelly & Co. Ltd. [1969] I.R. 100; Walshe v. Bailieborough Co-Operative Agricultural & Dairy Society
Ltd. and Gargan [1939] Ir. Jur. Rep. 77; Ó Coindealbháin (Insp. of Taxes) v. Mooney [1990] 1 I.R. 422; Market Investigations Ltd. v. Minister of Social Security and Pensions [1969] 2 Q.B. 173 and Ready Mixed Concrete v. Minister of Pensions and National Insurance [1968] 2 Q.B. 497.
Although control is not invariably a crucial factor (e.g. it is not so where the employee is a specialist having a professional qualification such as a surgeon or physician on the staff of a hospital), in cases where the employer’s right to direct the worker as to how he shall perform his task is the norm, it is of major significance. The importance of the nature and extent of control in a given case derives from the essence of the distinction between contracts of service and contracts for services in the context of the employer’s liability (if any) for the negligence of the employed person. The raison d’etre for this distinction is simply that (subject to exceptions which are irrelevant to this case) there is no justification in law for holding an employer vicariously liable for the negligence of a person over whom he has no control.
However, within the confines of contracts of service the degree of control exercised by the employer in practice will vary enormously. On the one hand, a new, inexperienced apprentice may well require detailed instructions on how he should perform the task in hand; whereas an experienced tradesman will rarely require any instruction on how he should do his work. As pointed out by Walsh J. in Roche v. P. Kelly & Co. Ltd. [1969] I.R. 100 (at p. 108):
“The fact that the master does not exercise that right, as distinct from possessing it, is of no weight if he has the right.”
In reviewing the nature and degree of control exercised or exercisable by the employer over an employed person in a given case, it is useful to compare the situation under review with what one would expect to find if the employee were a servant of the employer under a normal contract of service.
Mr. Carwood is a skilled tradesman. Such a person, whether employed under a contract of service or otherwise, rarely, if ever, requires instruction from his employer as to how to do his work. He is told what to do but, in general, the employer does not interfere with the tradesman in the exercise of his skills and he (the tradesman) decides how the work should be performed. It seems to me that the description given by Mr. Carwood of his dealings with the engineers and supervisors from whom he received work instructions (to which I have already referred) is no different than what one would have expected if his employment by Coilte had been on foot of a normal contract of service. It seems probable that the nature and extent of control over him as exercised by engineers and supervisors would have been no different in the latter case. In terms of his day to day working life there were also other significant factors indicative of a contract of service, i.e., the fact that he was in the full-time employment of Coilte; the fact that occasionally he received specific instructions from the engineer on the site about particular jobs; the fact that he did not provide labour other than his own and was given assistance when necessary by Coilte staff and the fact that he was paid a mileage allowance for the use of his own car.
There are, of course, other factors which at first sight indicate that the relationship between Mr. Carwood and Coilte arose out of a contract for services. The fact that he provided his own tools and equipment is not, in my view, one of these. Many tradesmen, such as motor mechanics and carpenters, traditionally provide their own tools. It may well be that the rates of remuneration negotiated between the parties included an element of “tool money”. The contra factors are essentially financial in nature and do not in any way affect the working aspect of the relationship, e.g., mode of remuneration; no pension; no holiday pay. There are financial advantages for both parties in that regard. The employer makes savings in P.R.S.I. contributions, holiday pay and the cost of Mr. Carwood’s pension. He, on the other hand, derives a major tax advantage in being assessed to income tax under Schedule D rather than as a P.A.Y.E. worker under Schedule E.
It seems to me that where an employer and full-time employee decide to structure their relationship in such a way that it is most cost-effective for both, but in so doing they do not interfere with the work aspect of an agreement which has the hallmark of a contract of service, it would be quite unreal and also unjust for a court to hold in such circumstances that the rights of an injured third party against the employer would be thereby fundamentally altered to such an extent as to render the employer free from vicarious liability which otherwise he would have had for the negligence of his employee. The court ought not to ignore the realities of the relationship, in particular the control exercisable by the employer over the employee and his work if unaffected by the financial aspects of the contract between them.
In my view the proper course is to examine the work aspect of the employment contract under review in all its facets and decide whether it is indicative of a contract of service or a contract for services. I am satisfied that the work aspect of the agreement which Mr. Carwood had with Coilte clearly indicates a contract of service and for that reason the employer is vicariously liable to the plaintiff for Mr. Carwood’s negligence.
There is another way of looking at the problem. It might be argued that if the financial aspects of Mr. Carwood’s contract with Coilte are held to establish that it is one for services and not of service, then the employer could not be held vicariously liable for his negligence, whatever the position may be as to Coilte’s right of control over his work. I do not regard that proposition as being well-founded in law. In terms of an employer’s vicarious liability to an injured third party arising out of the negligence of his (the former’s) employee, Mr. Carwood, it is irrelevant, in my view, whether the particular contract of full-time employment is one for services or of service, if the evidence establishes on the balance of probabilities that the employer’s right of control over the employee’s work would have been the same, whatever the nature of the contract of employment. In the light of such a finding it would be patently absurd if the plaintiff was held to have no cause of action against his employer, Coilte, in negligence merely because the financial aspects of the contract of employment between the employer and the wrongdoer indicated that it was one for services rather than of service. I am satisfied that if it is held, as I have done, that in practical terms the degree of control which was exercisable by Coilte over Mr. Carwood was the same as one would expect a master to have over a tradesman servant, then the employer is vicariously liable to the plaintiff for Mr. Carwood’s negligence, even if the relationship between the latter and Coilte is found to be that of independent contractor and employer.
In the light of the foregoing findings, it is unnecessary to address the second submission advanced on behalf of the plaintiff i.e. that Coilte is liable to him in negligence because it failed in its duty to provide him with a safe system of work and a safe working place.
Damages
The plaintiff was struck on the lower back by the piece of metal frame, which weighed approximately sixteen pounds and fell about five feet. The blow knocked him down. It was sharp and caused him to roar with pain. The plaintiff described in evidence that he picked himself up in a state of shock and then finished the job of lifting the spraying arm for bolting to the frame by Mr. Carwood after which he went home. The situation deteriorated during the night and he consulted his local doctor next day, who prescribed some medication which did not help very much. The plaintiff was totally disabled for the next eleven weeks and he stated that he was in constant pain all across his lower back. Although unfit, he returned to work as he was anxious to keep his job with Coilte. While at work he found that he had pain all the time, particularly when engaged in heavy labour. He continued on that basis until about two weeks after Christmas, 1987, when his doctor referred him to Mr. Mark Flynn, orthopaedic surgeon. He prescribed physiotherapy, manipulation and heat treatment once a week for four weeks. The plaintiff averred that this did not bring about any improvement and that he has been unable to return to work with Coilte since then. In April, 1988, he had traction in hospital for eight days and he wore a plaster-cast for one month. He said that the traction made him worse. He then wore a surgical corset for the following nine months. By this stage the pain was radiating down the right leg and he had severe pain in the groin area. Pain in his lower back has continued since the accident. The plaintiff was referred to Dr. Michael Molloy, rheumatologist, in January, 1989, and was admitted to Cork Regional Hospital under his care from the 1st to the 10th February of that year. He was subjected to further traction and physiotherapy and was given medication but there was no real improvement.
In August, 1989, the plaintiffs wife leased a small pub in a country area in order to supplement the family budget which had been substantially depleted. Mrs. Phelan had some experience of the licenced trade before her marriage. The business was run by her, the plaintiff, and a nephew and other relations who helped out from time to time. This business continued for two years, but it was not a success and they gave it up in 1991. The plaintiff stated that he was unable to work constantly in the bar, as if he did so it increased his pain. He did not handle kegs or crates of bottles. He said that prior to the accident he had worked all his life from the age of fifteen and a half years. He liked working and being kept busy. One of the effects of his injury was that he had become depressed and frustrated because of his inability to take up his old job. The plaintiff obtained an exercise bike and has been using it regularly. Dr. Molloy prescribed exercises which the plaintiff has been doing on most days. He says that the end result is that his back pain is still the same as when the accident happened. He also continues to have intermittent pain in his leg and pain in the groin all the time. This has persisted for the past two years. He believes that he is not fit for his pre-accident work with Coilte and they have no light jobs. He sought work from them but they informed him that he would have to be certified fully fit. He does not know whether there is any light work available in Carrick-on-Suir where he lives.
The plaintiffs only hobby before the accident was breeding and racing greyhounds. He used to have from five to eleven dogs which needed to be walked for about five miles a day. It is also necessary to rub the dogs daily from underneath upwards. One needs to bend down to perform that task and the plaintiff deposed that he was not able for the stooping involved in such work. The end result was that all of the dogs have been sold and the plaintiff has had to abandon that hobby. If he were still with Coilte he would be earning £180 per week nett. He said that he had been very happy in their employment. He conceded that he is fit for light work now, but he does not believe that there is any available in the area where he lives.
In the course of his evidence Mr. Flynn described the plaintiff as having suffered a soft tissue injury to his lower spine. A C.T. scan has revealed degenerative changes in the area of the L.4/5 and associated facet joints. The surgeon believes that this process was either aggravated or precipitated by the accident on the 1st September, 1987. He expressed the view, which I accept, that the plaintiffs present complaints to him of continuous low back pain which intermittently radiates to the interior aspect of the right thigh, intermittent pain in the right groin which occurs at intervals of about one week and persists for two or three days and occasional difficulty in straightening up from a stooped position, are likely to persist indefinitely and will be aggravated by moderate lifting. Mr. Flynn is satisfied that the plaintiff is fit for lighter forms of work, including driving a car or truck on the road, but he is and will remain unfit for work that requires moderate lifting or prolonged stooping or standing. This rules out a return to his pre-accident job with Coilte.
Dr. Molloy in evidence corroborated the opinion expressed by Mr. Flynn. He was satisfied that the disc damage at L.4/5 was long-standing and probably pre-dated the accident in September, 1987, but he accepted the plaintiffs evidence that it had been asymptomatic prior to that event. The plaintiff appears to have led an energetic life, both at work and in connection with his hobby as a breeder of greyhounds, prior to the accident. Dr. Molloy accepted that the plaintiff continues to get pain in the back and down the leg with substantial activity and occasionally at rest. He does not believe that the plaintiff will ever be fit for the heavy manual exertions required of him as a forestry worker. He confirmed that the plaintiff had become depressed and despondent to such a degree that in Dr. Molloy’s view he required anti-depressant medication. He had no doubt that the plaintiffs symptoms will persist into the future and that it is unlikely that he will ever be able to work at forestry or to do any similar type of work because of the situation arising out of his chronic disc problem. Dr. Molloy agrees with Mr. Flynn that the plaintiff is fit for light work. He will require analgesics intermittently and surgery will be necessary only if there is a quite marked deterioration causing severe pain or weakness of a limb or disturbance of bladder or bowel function. The risk of surgery is small provided that the plaintiff continues the exercises set for him to keep his back and abdominal muscles in trim. Heavy work would exacerbate his situation and ought to be avoided.
The plaintiff also attended Dr. Brian O’Moore, neurophysiologist, on several occasions from May, 1990. He had a series of C.T. scans carried out, which confirmed the diagnosis of Mr. Flynn and Dr. Molloy as to degenerative changes at L.4/5, where there was disc space narrowing consistent with degeneration at that level. He also found evidence of moderate degenerative arthritic changes involving the facet joints at L.4/5 and also L.5/S1. The C.T. scan in 1988 was clear but that carried out in 1991 was symptomatic. This implies that there was no evidence of arthritic changes in 1988 but that there was in 1991. Dr. O’Moore concluded that this would make it much more likely that the accident in 1987 was responsible. Dr. O’Moore concluded that the plaintiff’s back and related areas remain symptomatic with no improvement since his previous examination in 1990. He found evidence of persisting lower spinal pain and dysfunction and interference with the nerve roots thus causing pain down the right leg. He concluded that these symptoms were due to root irritation rather than nerve damage. Having regard to the persistence and duration of the plaintiffs symptoms, the prognosis for resolution of his condition is now poor. Dr. O’Moore is satisfied that the plaintiff is unfit for any form of heavy manual work and that that situation is likely to be permanent. He also stated that the plaintiff was severely depressed to such a degree that he advised him to consult a psychiatrist. Dr. O’Moore postulated that the plaintiff’s back could have remained asymptomatic for life and that many people have similar conditions which remain dormant. I accept Dr. O’Moore’s conclusions.
Mr. Frank Walsh, a career counsellor and occupational assesser, who is familiar with the labour market in the South East, also gave evidence. He had interviewed the plaintiff, having considered the medical reports furnished by Mr. Flynn and Dr. Molloy. He was satisfied that the plaintiff is fit for retraining in a semi-clerical job such as gate keeper, weighbridge attendant, records clerk or store clerk. However, in his view the prospects of getting such a job are not good. The plaintiff would need to retrain with Fás for three to six months and waiting time for employment should be allowed for after that. A major difficulty in Mr. Walsh’s view is that many younger people are available for factory work and employers tend to prefer employing such people rather than others in their late thirties. He expressed the view that the plaintiff would be most likely to obtain work from a smaller employer and he could expect wages of £120-£160 per week gross. The plaintiff told Mr. Walsh that the only work he had sought after the accident had been with Coilte. He had told him that he could mark trees in a forest.
No evidence on the issue of damages was led on behalf of the defendants.
In the light of the foregoing I assess damages as follows:
1. Nett loss of earnings to date
There are two factors to be taken into account in that regard. First, though significantly disabled and permanently unfit for his pre-accident job or any heavy manual work because of his back injury, it is not in dispute that he is fit for a wide range of alternative employmentsubject to appropriate re-training by Fás. The plaintiff has a duty to minimise his loss, and in my view he ought to have embarked on re-training when the public house project came to an end in August, 1991. Secondly, there is no evidence as to what his earnings were from that business while it was in operation. Taking those two factors into account and also bearing in mind that re-training and waiting-time thereafter while a job is being sought is likely to amount to at least one year, I assess nett loss of earnings at £30,000.
2. Other special damages
Doctors fees are agreed at £442 and travelling expenses at £1,000, making a total of £31,442 for special damages.
3. General damages
I assess compensation for pain, suffering and disablement to date at £30,000. As to the future; the plaintiff is only 37 years of age. He faces a life of discomfort and some pain. His working capacity has been substantially curtailed and this may have a significant bearing on his job prospects in the future. However, I am not satisfied that he has established that his earning capacity has been reduced in monetary terms. Mr. Walsh, the occupational assesser, believes that when re-trained the plaintiff will earn up to £160 per week gross. The plaintiff has stated in evidence that at the present time if he were still working for Coilte his earnings would be £180 per week nett. However, the information as to his actual earning capacity after re-training is incompletein particular there is no information regarding what he might earn as a trained commercial vehicle driver or taximan which is work specifically referred to by Mr. Flynn, the surgeon, as being within the plaintiffs reduced physical capacity. It does not seem to me that the ground work has been sufficiently laid for the introduction of actuarial evidence, and future loss of earnings ought not to be taken into account save in the general sense that the plaintiffs job prospects are significantly diminished, and time for re-training and waiting time for employment should be taken into account. I assess general damages for pain, suffering, loss of enjoyment of life in the future (including loss of job prospects) at £65,000. The total of damages under all headings amounts to £126,442.
Noel Reilly v Joseph Ryan
1989 No. 6885
High Court (Circuit Appeal)
18 July 1990
[1991] I.L.R.M. 449
(Blayney J)
BLAYNEY J
delivered his judgment on 18 July 1991 saying: The primary facts in this appeal are not in dispute and are most unusual. The defendant is the owner of a public-house known as the Honey Pot Bar situate at 118 Parnell Street. Michael Heffernan has been the manager of the bar for the last 14 years.
At about 2 pm on 20 May 1987 the plaintiff went into the bar to talk to Mr Heffernan. He was talking to him at the counter of the bar close to a hatchway giving access to the part behind the bar. There were about 30 to 35 people in the public-house at the time. While they were talking, a man with a balaclava over his head came into the bar with a knife in his hand and shouted at Mr Heffernan: ‘Give me £40 out of the till’. Mr Heffernan grabbed the plaintiff by the shoulders and pulled him over in front of him and used him as a shield. The plaintiff tried to get out of his grip. Whtle in this position the plaintiff was stabbed in the right arm by the intruder.
Mr Heffernan then got a snooker cue as a weapon and when the intruder saw this he ran out of the bar dropping his knife as he went.
Evidence as to what happened was given by the plaintiff and by Denis Gavin who had been standing beside the plaintiff on his (the plaintiff’s) right-hand side. Both the plaintiff and Denis Gavin said that the plaintiff had been used by Mr Heffernan as a shield. This was not denied. Mr Heffernan did not give evidence.
The defendant stated in evidence that Mr Heffernan’s instructions were to look after the customers’ needs and their safety. He said that if he had been in the bar when the intruder came in he would have given him the £40 in the interests of the safety of his customers. He said he had given these instructions to Mr Heffernan about 14 years before and had renewed them from time to time. The customers always came first. He said he did not authorize Mr Heffernan to do what he had done on the occasion in question. He said Mr Heffernan did not get an opportunity to give the intruder the £40 he had asked for.
On these facts it was submitted by Mr Seligman on behalf of the plaintiff that the plaintiff’s injuries had been caused by Mr Heffernan’s using him as a shield against the intruder; that in acting as he had Mr Heffernan had been acting in the course of his employment and accordingly the defendant was liable. Reliance was placed on the following passages from Winfield On Tort (13th ed.) at pp. 568, 570 and 574: *451
A wrong falls within the scope of employment if it is expressly or impliedly authorized by the master or is an unauthorized manner of doing something which is authorized, or is necessarily incidental to something which the servant is employed to do. Course of employment has supplanted scope of authority, but it contains no criteria to decide when or why an act is within or outside the scope of employment and no single test is appropriate to cover all cases. It is often an extremely difficult question to decide whether conduct is or is not within the course of employment as thus defined, and it would seem that the question is ultimately one of fact to be decided in the light of general principles.
Another application of the same principle is an act done in protection of the master’s property. The servant has an implied authority to make reasonable efforts to protect and preserve it in an emergency which endangers it. For wrongful, because mistaken, acts done within the scope of that authority the master is liable, and it is a question of degree whether there has been an excess of the authority so great as to put the act outside the scope of authority.
Similarly if the servant has committed an assault upon the plaintiff, that will be in the course of his employment if his intention was to further his master’s business, but if the assault was a mere act of personal vengeance, it will not.
Mr Seligman submitted that Mr Heffernan had been acting within the course of his employment in that what he had done was for the purpose of protecting his master’s property.
For the defendant Mr Burke submitted that Mr Heffernan had not been trying to protect his master’s property but simply to protect himself. What he had done was solely actuated by self interest and accordingly was not within the course of his employment.
I accept as correct the statements of the law set out in Winfield . It is similar to the statement of law in Salmond on Torts (10th ed.) at p. 89 and 18th ed. at p. 437) which was approved by the Court of Appeal in England in Poland v John Parr & Sons [1927] 1 KB 236 at p. 240:
A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master.
Before considering the law in greater detail, and applying it to the facts, it is necessary first to see what are the correct inferences to be drawn from the primary facts which, as I said earlier, are not in dispute, though the inferences to be drawn are. Mr Seligman asked me to infer that Mr Heffernan acted as he did in order to protect his master’s property; Mr Burke, on the other hand, asked me to infer that he was actuated solely by motives of self preservation.
I start with the situation prior to the entry of the intruder. Mr Heffernan was *452 in the public-house in his capacity as the defendant’s manager. His express authority according to the defendant was to look after the needs and safety of the customers. His implied authority clearly included authority to take reasonable steps to protect and preserve the defendant’s property. When the intruder rushes in, knife in hand, demanding £40 from the till, there is a sudden emergency. Mr Heffernan is threatened with personal violence and there is an attempt to steal some of the defendant’s money. What does Mr Heffernan do? He grabs hold of the plaintiff, who was on the other side of the bar counter, and uses him as a shield to protect himself from the intruder. This was his immediate reaction to the emergency. In my opinion, in acting in this way, he was thinking more of his own safety than of his master’s property. He was protecting himself from the intruder’s knife rather than protecting the cash in the till. He may also have had this in mind but it seems probable that his own safety was uppermost.
On these facts, can it be said that Mr Heffernan was acting in the course of his employment by reacting as he did, that is, by assaulting the plaintiff and using him as a shield, thus causing him to be stabbed? Clearly what he did was not expressly authorized by the defendant, but was it a wrongful and unauthorized mode of doing something that he was if not expressly, at least impliedly authorized to do?
In Poland v John Parr & Sons a carter in the employment of the defendants, while on his way home in the middle of the day, was following close behind a wagon laden with sugar in bags and being driven by one of his employers. He saw the plaintiff, a boy, walking beside the wagon with his hand upon one of the bags. Honestly and reasonably thinking that the plaintiff was stealing sugar from the bag, he gave him a blow with his hand on the back of the neck. The plaintiff fell and the wheel of the wagon injured his foot. It was held that in the circumstances that carter had implied authority to make reasonable efforts to protect and preserve the defendants’ property; that the violence exerted was not so excessive as to take his act outside the scope of the authority, and that the defendants were liable.
Atkin LJ said in his judgment at p. 245:
… there is a class of acts which in an emergency a servant, though not bound, is authorized to do. And then the question is not whether the act of the servant was for the master’s benefit but whether it is an act of this class. I agree that, where the servant does more than the emergency requires, the excess may be so great as to take the act out of the class. For example, if Hall had fired a shot at the boy, the act might have been in the interest of his employers, but that is not the test. The question is whether the act is one of the class of acts which the servant is authorized to do in an emergency. In the present case the man Hall was doing an act of this class — namely, protecting his masters’ property, which was or which he reasonably and honestly thought was being pillaged. His mode *453 of doing it was not, in my opinion, such as to take it out of the class. He was therefore doing an authorized act for which the respondents are responsible.
Scrutton LJ said in his judgment at p. 243:
To make an employer liable for the act of a person alleged to be his servant the act must be one of a class of acts which the person was authorized or employed to do. If the act is one of that class the employer is liable, though the act is done negligently or, in some cases, even if it is done with excessive violence. But the excess may be so great as to take the act out of the class of acts which the person is authorized or employed to do. Whether it is so or not is a question of degree.
In the light of these statements of the law, it seems to me that a second question has to be asked also. If Mr Heffernan had authority to do what he did on the basis that it was a wrongful and unauthorized mode of doing something which he was impliedly authorized to do, did he exceed what was required by the emergency, and was the excess such as to take his action outside the class of acts impliedly authorized?
Whether Mr Heffernan’s conduct is construed as directed to protecting the defendant’s property or defending himself, it seems to me that it should be held to have been impliedly authorized by the defendant. Poland v John Parr & Sons is clear authority for the proposition that a servant has implied authority to protect his master’s property and I consider that where an employee, who is in charge of his master’s premises in the course of his employment, is attacked by an intruder intent upon stealing his master’s property, it would be unreasonable to hold that he did not also have implied authority to defend himself. To hold otherwise would involve deciding that he was acting in two separate capacities in warding off the attack — acting as the defendant’s servant in protecting the latter’s property but acting in his personal capacity in defending himself, and to make such a distincition would in my opinion be unreal. So I consider that the answer to the first question is that Mr Heffernan did have implied authority to defend himself as well as to protect the defendant’s property. The subsidiary question is more difficult. As the facts are very different from anything to be found in the decided cases, it has to be decided in the light of general principles, and the conclusion I have come to is that Mr Heffernan did exceed what was required by the emergency. There were two options open to him, to acceed to the intruder’s demand, and give him the £40, or to resist. He chose the latter. But the means he employed went well beyond what was reasonable. One could have imagined him picking up some makeshift implement in order to resist the intruder (such as the snooker cue with which he did arm himself after the plaintiff had been stabbed) and if in the course of using it he had, by accident, injured *454 one of the customers, the latter would have a good cause of action against the defendant. What Mr Heffernan did was very different. He chose to interpose a human barrier between himself and the intruder. This involved a physical assault on the plaintiff and putting him in a position of great danger. It was a wholly unreasonable and excessive means of dealing with the emergency.
Was it so excessive as to take it out of the class of acts which are impliedly authorized? In my opinion it was. What he did has to be looked at in the context of his duties as the defendant’s manager. His principal duty was to serve the defendant’s customers. This involved also, as the defendant said in evidence, looking after their comfort and safety. But instead of looking after the plaintiff’s safety, as was his duty, Mr Heffernan was the cause of his being injured. His reaction was accordingly excessive in the sense that what he did went wholly outside what he was employed to do, being in fact the precise opposite of what his duty was at the time. Instead of trying to protect the plaintiff, he assaulted him and was the cause of his being injured. In my opinion it could not be said that such behaviour was impliedly authorized by the fefendant. For these reasons I agree with the decision of the learned Circuit Court judge and must dismiss the appeal.
Byrne v Ryan
[2007] I.E.H.C. 2007 JUDGMENT of Mr. Justice Kelly delivered 20th day of June, 2007
INTRODUCTION
This is a claim for damages for negligence arising out of a failed sterilisation of the plaintiff. That sterilisation was sought to be achieved by a tubal ligation which was carried out in the Coombe Hospital on 16th December, 1999. Subsequent to it, the plaintiff bore two children.
She brings this claim against the defendant, who is the nominee of that hospital.
The plaintiff seeks damages under two headings. The first claim is for what her counsel described as the physical consequences of the failure of the operation. The second is for the recoupment of the cost of rearing the two children until such time as they cease to be dependant on their parents. In monetary terms this claim is by far the larger of the two.
Apart from the usual difficult questions which a court has to deal with in any medical malpractice suit this case has raised two others, neither of which have been the subject of judicial determination in this jurisdiction. The first is the vicarious liability, if any, of a public hospital for the negligence of a consultant doctor on its staff in treating a public patient. The second is the entitlement to recover damages for the cost of rearing a healthy child born subsequent to a failed sterilisation.
Neither of these questions will, of course, have to be answered unless the plaintiff proves that the operation in question was a failure and that its failure was as a result of the negligence of the consultant who carried it out. It is to these questions that I turn in the first instance.
The Plaintiff
The plaintiff was born on the 6th May, 1962. She married her husband Daniel on 13th October, 1979. She was then seventeen years of age.
The first of her seven children, James, was born on 17th December, 1979.
The plaintiff had a miscarriage in 1980.
On 27th December, 1981 her second son, Derek, was born.
On 19th November, 1984 she had twins, Donal and Aisling.
Her fifth child, Alan, was born on 19th June, 1988.
The plaintiff was dealt with in the Coombe Hospital for each of these confinements and for the miscarriage which took place in 1980.
In 1991 she had an ectopic pregnancy despite taking the oral contraceptive pill. Again she was treated in the Coombe Hospital. Following that experience she attended at the Adelaide Hospital for advice on the question of sterilisation. She decided against it. Throughout the 1990’s she took the oral contraceptive pill.
In 1997 the plaintiff was involved in a motor accident and inter alia suffered depression as a result of it.
By late 1998, the plaintiff had decided that she did not want to have any more children. She was quite definite about it.
The plaintiff’s general practitioner was Dr. Brian Dunne. She consulted him on the question of sterilisation. As a result he wrote a letter of referral to the Coombe hospital in the following terms:
“19th November, 1998
Gynae Clinic
Coombe Hospital,
Dublin 8
Re – Bridget Byrne, 1567 Lee Drive, Calverstown, Kilcullen, Co. Kildare.
Date of Birth 06/05/1962.
Dear Doctor,
I would be grateful if your (sic) send Bridget an appointment to be assessed for tubal ligation.
She has five children and had a tubal pregnancy in 1991.
Many thanks.
Yours sincerely,
Dr. Brian Dunne”.
It was as a result of that letter that she ultimately came under the care of Dr. Charles Murray.
Dr. Charles Murray
Dr. Murray qualified in medicine at University College, Dublin in 1962. He then went to Leeds United Hospital were he worked in the women’s and maternity hospital. Whilst there he obtained his membership of the Royal College of Obstetricians and Gynaecologists. Thereafter he went to the United States on a research fellowship. He returned to the Coombe Hospital in 1969 as Assistant Master. He was then made Senior Registrar and in 1975 became a Consultant at that hospital. He remained as a Consultant at the Coombe until his retirement in June, 2001.
Dr. Murray has extensive experience of performing tubal ligations. He carried out his first such operation in the middle of the 1960’s in England. At that stage the procedure was done by open surgery. It was not done laparoscopically until more recent times.
Dr. Murray recounted that in his early years “tubal ligation wasn’t tolerated” in the Coombe Hospital. Then the board of the Hospital allowed it in restricted circumstances. Following the decision of the Supreme Court in the McGee case (McGee v. Attorney General [1974] I.R. 287), all of this changed. To use his own words “the law changed and things changed from there. So I did an awful lot of them.”
He recalled that he was asked by the then Master to take over the family planning clinic at the Hospital. He described that title as a misnomer because what he called “standard family planning” was conducted elsewhere and the patients referred to this clinic were almost universally sent for consideration for tubal ligation. Thus it was he who was in charge of the conduct of tubal ligations in the Coombe Hospital for many years. By the year 2000 he estimated that he would have carried out that procedure “in the high hundreds and probably in the thousands”. He was therefore a consultant of great experience in tubal ligation.
The operation
The plaintiff was considered suitable for tubal ligation and it was carried out on the 16th December, 1999 by Dr. Murray. Not surprisingly he had no recollection of the operation but the theatre records and operating notes of the procedure had been kept and he was able to refresh his memory by reference to them.
The procedure was carried out laparoscopically. Dr. Murray described filling the plaintiff’s abdomen with three litres of carbon dioxide gas and then inserting the relevant instruments around the belly button area. He discovered that there were multiple adhesions from the anterior abdominal wall present. That was because the plaintiff had had previous surgery and also had had an ectopic pregnancy. He dealt with those adhesions as part of the procedure. He was able to dissect them off with the instruments which he was using so that he could see what he was supposed to be doing. Then he “just clipped the tubes”. He said there was a little difficulty because of the adhesions but he was satisfied that he had clipped the tubes.
Dr. Murray went on to say that over the years there were three or four instances where he was not altogether happy that he had achieved a satisfactory tubal ligation. In such circumstances he organised a histo- salpinogram to be carried out some six weeks after the operation. He did not do so in this case.
Following the operation Dr. Murray wrote to Dr. Dunne as follows:
“This is just to let you know that your patient Mrs. Byrne had a laparoscopic sterilisation undertaken here a few weeks ago. The operation was straightforward and she was discharged a few hours later”.
In evidence Dr. Murray said that the use of the term “straightforward” in that letter meant that there were no complications. He pointed out that the procedure is fraught with a lot of serious things which may go wrong such as damage being caused to the bowel, to the bladder, or to blood vessels. What he meant by the letter was that nothing of that nature occurred.
It is quite clear that Dr. Murray believed that he had carried out an effective tubal ligation. He believed that he had been able to deal with the adhesions and had clipped the plaintiff’s tubes. Had he had any doubts about, this I am satisfied that he would not have proceeded laparoscopically but would have changed to an open procedure and/or would have had a histo-salpinogram carried out. He was fully satisfied that the operation done by him was a success.
Unfortunately Dr. Murray was wrong. It is common case that a second tubal ligation was carried out on the plaintiff in December, 2002. It was done by Dr. Peter Boylan. He made a video recording of the procedure. The video was seen by Dr. Murray and he accepted (and indeed had no doubt) that, rather than clipping one of the plaintiff’s fallopian tubes, he in fact attached the clip to tissue just beside it. He was unable to explain how this happened. Counsel then put the following questions to him:
“Question: Doctor, I have to suggest to you that if you had been using the care which was appropriate to somebody of your experience and eminence that would not have happened? Answer: I was a very careful surgeon all my life.
Question: I understand that.
Answer: And I operated carefully. I cannot explain why this happened or how it happened but I would reject the idea that I wasn’t careful.
Question: But it is not something that can happen if the procedure which you have described is carried out carefully? Answer: Well, we were dealing with adhesions here. I freed adhesions to a degree that allowed me, as far as I was concerned, to establish – I was not looking for the full length of the fallopian tube but for an area of tube that I could clip… Question: So the existence of the adhesions did not prevent you from identifying the fallopian tube?
Answer: I don’t think so. I would doubt that.
Question: In fact you have already said to us that if you had been unhappy about your capacity to visualise the fallopian tube because of adhesions, you would have gone to a laparotomy?
Answer: I would have gone to a laparotomy, yes.
Question: So I now return to my question, Doctor, if you had removed or dissected away the adhesions sufficiently to visualise the fallopian tube, how could you apply the clip to something other than the fallopian tube if you had carefully followed the procedure which you have described to us?
Answer: I can’t answer that one because I don’t know, but I assume that I mistook a roll of tissue which was adjacent to the tube as the tube in this circumstance. That is all I can say. I have no idea…
Question: But what I am putting to you is that that couldn’t happen if you carefully followed the procedure which you have described of identifying the fallopian tube, applying the clip to it and then confirming by again identifying the location of the clip that it was on the fallopian tube?
Answer: Yes. Clearly I misidentified the fallopian tube by the sound of things. That is all I can say.
Question: Doctor, I must put it to you that that is not an acceptable result for a tubal ligation carried out by a consultant gynaecologist and obstetrician?
Answer: Well, it is an unfortunate result but I would disclaim the fact I was negligent. I was never negligent in my approach”.
The question which I must now address is whether this misidentification of a piece of tissue for a fallopian tube, resulting in it rather than the tube being clipped, constitutes negligence.
Expert Witnesses
Although Professor Colm O’Herlihy was listed as an expert witness to be called on behalf of the defendant, he was not in fact called to give evidence.
Two experts were called by the plaintiff. One was Dr. Peter Boylan who carried out the second sterilisation in December 2002. The other was Dr. Peter McKenna.
Dr. Peter Boylan
Dr. Boylan qualified in medicine in 1974. He trained in Dublin and London and then worked in the United States. From 1991 to 1998 he was Master of The National Maternity Hospital and is at present a consultant obstetrician/gynaecologist at that hospital.
The plaintiff was referred to him by her general practitioner with a request for consideration for tubal ligation. He saw her on 23rd May, 2002 and recorded her earlier medical history. That included the fact that she had the tubal ligation the subject of this action but subsequently bore two children in 2000 and 2001. He carried out the second tubal ligation in December, 2002.
In the course of carrying out the procedure he had to dissect away adhesions at the plaintiff’s left fallopian tube. Having done so, he was able to see that the clip present was not on the plaintiff’s left tube. He took the view that the probability was that the clip had not been placed on the left tube at the first operation. The clip was clearly on the right tube but not on the left. He said as follows:
“Question: In relation to the first procedure then, can you comment on the failure of that operation?
Answer: Well, I think probably the clip was not put on the left tube. It was thought to be on the left tube but I think that it was an error of thought, if you like, or a mistaken impression because it wasn’t on the tube and the clip was clearly on the right hand side. The procedure was done by a very experienced and very skilled surgeon who, clearly, formed the impression that the clip had been put in the right place, but I don’t think it had.
Question: But is it possible to be sure to check the route of the fallopian tube in order to identify… (interjection)?
Answer: Yes, I mean, there are anatomical reference points which make it clear that you are putting the clip on the tube. When we are teaching juniors, for example, about how to do this procedure, we show them how you identify the tube and differentiate it from another tube which is very close to the fallopian tube, which is the one you are trying to block, which actually looks quite similar and it is one of the common errors that a more junior person would make with a clear view.
Question: But in relation to a person with experience and holding the status of a Consultant, such a person using reasonable care, would you expect them to be able to identify correctly the appropriate tube to clip?
Answer: You would yeah.
Question: Does it follow that a failure to make that identification falls below the reasonable standard of care for such a person?
Answer: Well, I think it is a mistake. Obviously, the clip was put in the wrong place under the impression that it was put in the correct place, but that was incorrect. You know, I don’t know whether it is for me to say whether or not it falls below the standard of care, but you would expect the person doing it to take pretty good precautions to ensure it was in the correct place, yes.
Question: Well would such a person have been taught and had explained to them and perhaps even a person of that seniority taught others to take care which would avoid a mistake of this kind?
Answer: Yes, that’s a fair comment”.
In cross-examination Dr. Boylan accepted that there is a recognised
failure rate with tubal ligation. The failure rate is higher when an open procedure is used. This is because most of such procedures are done at the time of a caesarean section and the higher failure rate is attributable to the increased blood supply to the tubes at the time. He identified the commonest reason for failure as the clip being placed other than on the fallopian tube. However he went on to say that a doctor cannot put a clip on something which is not a fallopian tube and claim or believe that he had done a successful tubal ligation. He pointed out that most of the failures occur when the operation is carried out by more junior people because they mistakenly put the clips on the round ligament which looks very like a fallopian tube. He went on to say:
“In cases like this where there are adhesions and where it is done by a very experienced clinician, then you would expect that extra efforts would be made, because of the adhesions, to make sure that the tube was, in fact, in the right place. But I certainly accept that the clinician may have believed that the clip was in the right place, or else he wouldn’t have finished the surgery”.
Dr. Peter McKenna
Dr. McKenna qualified as a doctor in 1974. He is a consultant obstetrician in the Rotunda and Mater Hospitals. Until 2001 he was the Master of the Rotunda. He was never involved in treating the plaintiff. For the purpose of giving evidence he had access to all of the relevant hospital records concerning the plaintiff and the video recording made by Dr. Boylan at the time of the second tubal ligation.
Dr. McKenna identified three reasons why a woman can have a baby after a tubal ligation. The first is that she was pregnant at the time of the procedure (a question which I will have to consider later in this judgment). The second is that the clip was not put in the right place, in which case the woman was never sterilised at all. The third is that the clip was in fact put on the right place but through the passage of time it eroded in which case there was a brief period where the egg made contact with the sperm. This third reason is not due to any failure on the part of the operator. It is a failure intrinsic to the technique.
He said:
“My understanding would be that if the patient is pregnant at the time of the procedure, that is her affair. If the technique fails because the clip erodes through, having been put on the right place, well it does happen and nobody is to blame for that. But if the clip is put on the incorrect place and the patient has never been sterilised and the operation was not done correctly that is a different matter”.
Later he said:
“One would have expected a Consultant Gynaecologist to put the clips on the correct place. If not, to have recognised that and to have expressed their concern to the patient subsequently”.
“Question: Are there anatomical points which enable the correct tube to be located for the purpose of locating the clip in the correct place?
Answer: Yes, there are, it is not that difficult”.
In cross-examination he accepted that it appeared that Dr. Murray believed that he had in fact placed the clip in the right place and that his procedure was successful. He was then asked (and answered) a question which is really one for the court. It was as follows:
“Question: But it does not necessarily imply that he (Dr. Murray) was in breach of his duty of care I suggest?
Answer: That is not necessarily for me to say, that is a matter for the legal system. But I would always have approached it that if the woman is pregnant at the time of the surgery, that is her look out. If you put the clip on the right place and it wears through, nobody is to blame. But if you put the clip on the wrong place and there are no extenuating circumstances, the operator has got to face the music for that”.
The Legal Test
The appropriate legal test by which Dr. Murray’s conduct of the tubal ligation procedure has to be judged is that prescribed by the Supreme Court in Dunne v. National Maternity Hospital [1989] I.R. 91. In that case Finlay C.J. summarised six principles which he distilled from a consideration of a series of earlier cases. The first principle is the relevant one for this case. It reads as follows:
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care”.
That principle has to be understood and applied in the context of observations made by the same judge at page 110 of the report where he said:
“In order fully to understand these principles and their application to any particular set of facts, it is, I believe, helpful to set out certain broad parameters which would appear to underline their establishment. The development of medical science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent with the common good that doctors should be obliged to carry out their professional duties under frequent threat of unsustainable legal claims. The complete dependence of patients on the skill and care of their medical attendants and the gravity from their point of view of a failure in such care, makes it undesirable and unjustifiable to accept as a matter of law a lax or permissive standard of care for the purpose of assessing what is and is not medical negligence. In developing the legal principles outlined and in applying them to the facts of each individual case, the courts must constantly seek to give equal regard to both of these considerations”.
Conclusions on tubal ligation
I have set out in some detail the evidence given by Drs. Murray, Boylan and McKenna. There is no dispute but that Dr. Murray failed to apply the clip to the plaintiff’s left fallopian tube. He was a consultant of very considerable experience when he carried out the operation. The thrust of the evidence from the two experts leads me to the conclusion that that failure on the part of Dr. Murray was one which no medical practitioner of equal specialist status and skill would have been guilty of if acting with ordinary care. To put it in the words of Dr. McKenna:
“If you put the clip on the wrong place and there are no extenuating circumstances, the operator has got to face the music for that”.
The presence of adhesions in the present case did not in my view constitute an extenuating circumstance such as would excuse what occurred. There was a breach of the duty of care owed to the plaintiff.
The plaintiff’s consent
Prior to the operation being carried the plaintiff executed a consent which read as follows:
“Sterilisation
Consent by Patient
I, Bridget Byrne hereby consent to undergo the operation of sterilisation the nature and purpose of which has been explained to me by Dr./Mr. Murray.
I have been told that the intention of the operation is to render me sterile and incapable of further parenthood. I understand that there is a possibility that I may not become or remain sterile.
I also consent to the administration of a general, local or other anaesthetic.
No assurance has been given to me that the operation will be performed by any particular surgeon”.
The plaintiff signed that form as did Dr. Murray who confirmed on it that he had explained to the patient the nature and purpose of the operation.
All three specialists who gave evidence accepted that tubal ligation is not always successful and has a recognised failure rate. The form of consent executed by the plaintiff recognises that the operation may not be successful. For example, even if the clips are placed correctly they may wear through as described by Dr. McKenna in evidence. In such circumstances no liability could attach to the doctor who performed the ultimately unsuccessful sterilisation.
The defendant contends in his written submissions that by executing this document the plaintiff “consented to that risk of failure”, thus relieving Dr. Murray of any liability. I cannot accept such a proposition.
First, the document in its terms is a consent to the operation being carried out and the administration of an anaesthetic. It is not a consent to the carrying out of a failure; still less is it a consent to the carrying out of the operation in a negligent fashion. It merely records the plaintiff’s understanding that there is a possibility of failure. It might be possible to draft a form of consent which would exclude liability on the part of a doctor for negligent treatment but there is no attempt to do so here. In my view the consent executed by the plaintiff cannot be regarded as one which exonerates Dr. Murray in respect of his failure to effectively clip both fallopian tubes.
Events after the sterilisation
The plaintiff’s sterilisation on the 16th December, 1999 was dealt with as a day case. She arrived at 7.30 in the morning, had the procedure carried out and was discharged on the afternoon of that day. She was not asked as to whether she might be pregnant at the time of the operation, nor was she required to have a pregnancy test. Her last menstrual period was recorded in the hospital record as being the 1st December, 1999. She was not asked to return to the hospital after the operation.
Apart from some discomfort she recovered well from the procedure.
In February 2000, she began to suffer from abdominal pains. She consulted Dr. Dunne. He thought she was suffering from adhesions left over from the ectopic pregnancy and that the sterilisation had irritated them.
On the 30th March, 2000 she suffered extreme abdominal pain as a result of which she went to the Accident and Emergency Department of Naas Hospital. At the hospital a routine urine sample was taken. A short time later a doctor came and asked the plaintiff how old her baby was. She told the doctor that she was not pregnant and that he must have the wrong chart. However he confirmed that she was three months pregnant. She was detained in hospital for a few days and then allowed home. Following discharge from Naas Hospital she consulted her general practitioner who transferred her to the Coombe for attention.
June 2000
The plaintiff was seen at an ante natal visit on the 1st June, 2000. Her last menstrual period was recorded in the hospital notes as having taken place on the 2nd January, 2000. A scan was carried out, which suggested that she was twenty three weeks pregnant, rather than the twenty one which was expected by reference to her last menstrual period. This discrepancy between the two dates is an issue which figured during the plaintiff’s subsequent hospitalisation and indeed during the trial. Obviously if the length of pregnancy is calculated by reference to the scan, it suggests that the plaintiff was pregnant at the time Dr. Murray carried out the sterilisation. If, on the other hand, it is calculated by reference to the plaintiff’s last menstrual period, the pregnancy occurred subsequent to the tubal ligation.
The plaintiff alleged that at the time when this scan was done somebody said to her that she might have been pregnant before she had the sterilisation. She alleged that the girl who had carried out the scan said that “the clips were on the tubes and they were secure”. It is remarkable that the plaintiff, who had such poor recollection of other events, could remember this. I am not satisfied that this event occurred. All the evidence is to the effect that such an observation could not be made by reference to the scan. I think it likely that there was mention of the possibility of the plaintiff being pregnant at the time of the sterilisation. The plaintiff got the impression from that discussion that she was pregnant at the time of the sterilisation.
The plaintiff was not detained in hospital in June and returned home.
The plaintiff returned to the hospital complaining of abdominal pain on the 6th July, 2000.
The July visit
This was the plaintiff’s second ante natal visit to the hospital. The plaintiff was complaining of abdominal pain and on this occasion was seen by a consultant, Mr. Tom D’Arcy.
Mr. D’Arcy
Mr. D’Arcy is a Fellow of the Royal College of Surgeons in Ireland and a member of the Royal College of Obstetricians and Gynaecologists. He qualified in medicine in 1984 and has been a consultant at both the Coombe Hospital and St. James’s Hospital in Dublin since 2000.
Mr D’Arcy struck me as a very competent and thorough doctor with a great concern for the plaintiff.
He explained in great detail the examinations and tests which he carried out on the plaintiff when she came under his care on the 6th July, 2000. His first concern was that, having regard to her complaints and her previous obstetrical history, she might be in pre-term labour. Having carried out these examinations and tests he concluded that she was not. His second concern was to try and establish her dates and to “make sense of the disparity between those that were determined by her last menstrual period or her presumed last menstrual period on the 2nd January, 2000 and those that had been suggested on the basis of her booking scan”. It is not necessary for the purpose of this judgment to set out in detail the various tests and calculations which he did and indeed the thinking process behind them. He certainly explored the question meticulously and came to the conclusion that it was more than likely that the plaintiff had conceived after her sterilisation. He was quite unequivocal about this in his evidence and in particular when asked the following question:
“Q. Going back now to the month of July, 6th July, you are saying on that date you had come to the strong conclusion that the tubal ligation had failed. Inst that what the sum total of your evidence before lunch was?
A. Yes.”
I am quite satisfied that Mr. D’Arcy thoroughly and comprehensively carried out all necessary tests and examinations on the plaintiff so as to ascertain the true position concerning the length of her pregnancy. He concluded that she had become pregnant after the sterilisation. In my view he was correct in so concluding. The sterilisation had failed.
The question arises as to whether the plaintiff was told this. An issue also arises as to whether that information was communicated to other medical or nursing practitioners who would be involved in the subsequent care and management of the plaintiff.
Was the Plaintiff informed?
The plaintiff had no recollection of ever being informed during the course of her pregnancy with her sixth child Danielle that her tubal litigation had failed. She ought to have been so informed. That is the clear and uncontroverted view of Doctors Boylan and McKenna which I accept. Not only ought she to have been told, but other steps ought to have been taken by way of advice to her and procedures followed which were detailed in the evidence of those two doctors.
If the plaintiff had been so informed, I think it likely that she would have behaved in a manner other than she did following the birth of Danielle.
None of the doctors called by the defendant had any recollection of a conversation with the plaintiff during the course of her pregnancy in which she was told that her sterilisation had failed. This is understandable given their work load and the lapse of time. However, Dr. Boylan was clear that if an appropriate conversation had taken place with the plaintiff on this topic it would have been noted in her chart. His view in that regard was shared by Dr. Murray himself who said that he would expect a doctor to generally write in the chart that a patient had been informed of a failed ligation and given advice. No such note appears in the plaintiff’s medical records.
Mr. D’Arcy, quite understandably, had no recollection of having such a conversation with the plaintiff. In his evidence he said that he:
“certainly would not have given her to understand that her sterilisation had been successful, most certainly not, because there were grounds for considering otherwise having established the difference in her last menstrual period and having established exactly when she was sterilised and having considered also the fact that she had been on the oral contraceptive pill up to one week before she was actually sterilised”.
Later in his testimony he said that he could not honestly say that he used the exact words that the plaintiff’s “tubal ligation had failed”. In re-examination he said that if he couldn’t say that he used those exact words he believed that he told her that her tubal ligation had failed.
As I have already observed nowhere is it noted that such information was given to the plaintiff. In answer to questions which I put to Mr. D’Arcy he said that he does not always write down what he has said directly to a patient. However, he said if there were some very specific facts he would document them. If he felt the need to actually document a very specific meeting with a patient then he would be inclined to dictate a letter as to that meeting which he would then have placed within the notes and a copy sent to the patient’s general practitioner or to the patient as well. Whilst he accepted that a failed tubal ligation was a rare occurrence he did not regard it as one of the specific instances where he would note what he might have said to the patient.
I am satisfied on the evidence that Mr. D’Arcy did not inform the plaintiff in terms clear to her that her tubal ligation had failed. Whatever may have been said it did not make the position clear to her. Given the comparative rarity of a failed tubal ligation and the consequences of such for the plaintiff I think it probable that if he had told the plaintiff of this he would have either noted the matter in the chart or have prepared a letter for inclusion on the chart with a copy being sent to the plaintiff’s general practitioner. Mr. D’Arcy, very reasonably, was more concerned at the time with the plaintiff’s pain and the condition with which she was presenting together with her history on previous pregnancies where she had required a cervical suture than with this issue. He did not deal with her again.
I also think it likely that, if she had been told, not only would the plaintiff’s general practitioner have been informed but as a matter of professional courtesy, Dr. Murray would also have been informed. Neither of these things happened.
My findings in this regard are fortified by the actual notations which were made in the plaintiff’s chart.
The Chart
Mr. D’Arcy is the only consultant identified in evidence as having made an entry on the plaintiff’s chart during her pregnancy with Danielle.
Mr. D’Arcy dealt with the patient on the 6th July, 2000. He noted the discrepancy between her dates by reference to the scan results and her last menstrual period as related by her. Using distinctive green ink he wrote “measurements might suggest that she was pregnant just before TL given variation”. He made other notations in green which are not of relevance here. He told me that this entry demonstrated a state in the process of his thinking and that when he ascertained that the tubal ligation had taken place on the 16th December, 1999 and that the plaintiff had been on the oral contraceptive pill until one week before that date he came to the conclusion that the tubal ligation more than likely had failed and that she had conceived after the sterilisation.
On the same page in the chart there are notes of what occurred on the plaintiff’s first ante-natal visit to the hospital on the 1st June, 2000. Some unidentified doctor had written the words “Lap TL December 99 – failed TL”. When Mr. D’Arcy obtained additional information from the plaintiff he inserted into this notation the figure “16” before the word “December” and he wrote under the notation “On OC pill until 1/52 before TL”. These notes were made by Mr. D’Arcy in black ink rather than his characteristic green. Although he initialled the green notation he did not initial the notation made in black. It would not have been apparent to anybody reading the chart that the added words in black ink had been written by Mr. D’Arcy.
Mr. D’Arcy considered that this notation made it clear to anybody subsequently reading the chart that the plaintiff had a failed tubal ligation. In answer to two questions put by me he said as follows:
“Question: Mr. D’Arcy am I correct in thinking that the thrust of your evidence is that another medical practitioner in the obstetrics area on looking at this note here would come away with a clear conclusion that a failed tubal ligation was the cause of the problem?
Answer: That is correct.
Question: And does it dispose in your view for once and for all the possibility of her having been pregnant at the time of the tubal ligation?
Answer: Yes it does”.
Whilst I do not doubt the sincerity of Mr. D’Arcy’s views in this regard I cannot accept on the evidence that his notes did in fact achieve this desired result.
According to the evidence of Dr. McKenna if there was doubt as to whether the woman was pregnant before or after the tubal ligation a senior clinician ought to have noted in the chart that she needed to have her tubal patency checked at eight weeks. He was unequivocal in his view in that regard. Such a note would infer there was genuine doubt as to the efficacy of the tubal ligation. He could not discern any such entry on the chart. There is none.
The evidence of Mr. D’Arcy is that he had come to the clear conclusion that the tubal ligation had failed but there is no unequivocal note to that effect on the chart.
That Mr. D’Arcy’s entries on the chart did not convey to other medical and nursing staff in the hospital his clear view as to the failure of the sterilisation can be gleaned by reference to notations which appear subsequent to those made by him on the 6th July, 2000.
On the same date at 18.50 hours a mid-wife recorded: “Had TL in December 99. Had period type bleed in January, 2000 scan dates today suggests she was pregnant before the TL”. Next day, the 7th July, 2000 Dr. Sarma a Senior House Officer in Obstetrics wrote “T/L December 99 pregnant prior”. If matters were as clear as Mr. D’Arcy believed it is unlikely that these notes would have made.
In my view the criticism made by Dr. McKenna that the plaintiff’s chart did not contain an appropriate unequivocal statement as to Mr. D’Arcy’s conclusions is well founded.
Events post Danielle’s birth
Danielle was born on the 11th September, 2000.
At the time of the plaintiff’s discharge from hospital after that event she was seen by Dr. Caoimhe Lynch.
Dr. Lynch qualified in medicine in 1999 and was a Senior House Officer in the Coombe having commenced work there in July, 2000. She has since obtained her Membership of the Royal College of Obstetricians and Gynaecologists in London and is also a Member of the Royal College of Physicians in Ireland. At present she is a clinical research fellow and specialist registrar in obstetrics and gynaecology attached to the Coombe Hospital.
Dr. Lynch cannot be criticised for the fact that she had no recollection of the conversation which she had with the plaintiff when discharging her from hospital on the 4th September, 2000.
Dr. Lynch made good notes in the plaintiff’s chart pertaining to the plaintiff’s discharge from hospital. It is quite clear that Dr. Lynch was very thorough in satisfying herself that the patient was fit for discharge on the day in question. That can be gleaned not merely from her evidence but also from the notes which she made on that occasion.
The note which is relevant for the purpose of this case relates to the plan which Dr. Lynch created for the plaintiff. It read:
“- To see physiotherapist today prior to discharge
– post natal OPD 6/52
(to discuss fertility – PT pregnant – post TL”
Dr. Lynch required the plaintiff to come back to hospital rather than have a normal six week visit with her general practitioner. This was because as she put it she was
“Highlighting the fact that she needed to come back to the hospital and the reason – I put it in brackets – was to discuss her fertility because of the fact that she had become pregnant post tubal ligation”.
Dr. Lynch told me that she did not assume that the plaintiff was pregnant at the time of her sterilisation. When asked what was her view as to when the plaintiff became pregnant she said:
“Well, I would feel that there was a question that she had become pregnant following a tubal ligation. It was felt looking at the notes and establishing the dates that she was probably pregnant following the tubal ligation but that this had to be confirmed and hence the six week appointment to come back to the hospital”.
Later in her evidence Dr. Lynch accepted that her note did not indicate that the plaintiff became pregnant following a tubal ligation because she was not in a position to make such a note. That is quite understandable given her juniority. No clear note to such effect was on the chart adding fortification for my finding that the entries made on the chart by Mr. D’Arcy did not clearly record his conclusion that the plaintiff had become pregnant following the tubal ligation.
Dr. Lynch was a very junior doctor and was aware of the delicacy of her position and how inappropriate it would have been for her at this juncture to reach a conclusion that the tubal ligation had failed. She quite properly recorded that the plaintiff had become pregnant post tubal ligation.
Dr. Lynch was clear that she would not simply have told the plaintiff to come back in six weeks time. Rather she would have explained to her why she wanted her to do so. That was made evident in a number of different places in her evidence. She said:
“I would have explained why I wanted her to come back…. So one can assume that in the context of saying to the patient that she needed to come back to the clinic in six weeks, that you need to qualify the statement as to why you want her to come back in six weeks. Otherwise, they won’t come back at all”.
Later in her evidence Dr. Lynch told me:
“But I would say that it was appropriate that she was to come back for her post natal appointment and in highlighting the fact to her that I had questioned whether her tubal ligation was a success”.
However it is clear from the next answer from Dr. Lynch that she did not make any comment on whether the plaintiff’s tubal ligation was successful.
The plaintiff was discharged. No contraceptive was prescribed. Dr. Lynch accepts that she did not note informing the plaintiff that she should assume that she was fertile and would become pregnant unless she took contraceptive precautions.
Dr. Lynch struck me as a very competent and conscientious doctor who went about her duties in discharging the plaintiff is a thorough manner. I am satisfied that she carried out a full and detailed consideration of the plaintiff’s position and her records and had a discussion with her. Dr. Lynch was clearly concerned at the fact that the plaintiff had become pregnant subsequent to a tubal ligation. But there was nothing on the chart by way of a definitive note to say the ligation had failed. It was not up to Dr. Lynch to make such a finding. Indeed she was in a very difficult position because to have expressed the view that the sterilisation was a failure, given her level of juniority, could have created many difficulties given that she would be directly criticising an operation carried out by a very senior consultant in the hospital.
I am satisfied that she told the plaintiff to return to the hospital for a check-up six weeks subsequent to the discharge and that she made it clear to the plaintiff that there was uncertainty about her fertility and that it needed to be checked. She was, understandably, unable to say to the plaintiff that the sterilisation had failed.
Accordingly the plaintiff was discharged without being told then or at any stage during her stay in the Coombe in clear and unequivocal terms that her tubal ligation had failed.
She was undoubtedly told to return for an out-patients appointment six weeks after discharge and she was advised to do so because of uncertainty about her fertility.
I should record that Dr. Lynch was not the only member of the hospital personnel to see the plaintiff prior to her discharge. She was also seen by Ms. Elizabeth Byrne. She is a registered nurse and midwife and was employed in the Family Planning Department of the Coombe Hospital as a clinical midwife manager.
The hospital records demonstrate that on the 3rd September, 2000 the plaintiff was offered a leaflet that contained advice on all family planning methods that were available. That was given to her by the nursing staff on the ward. In addition however the chart notes that the ward staff requested Ms. Byrne to call on the patient for the purpose of giving family planning advice.
Ms. Byrne saw the plaintiff on the 4th September. The purpose of the visit would be to make the plaintiff aware of her fertility and to offer advice on what options were available.
Ms. Byrne had no recollection of any discussion with the plaintiff. Whilst she would have had access to the plaintiff’s chart it was not her invariable practice to look at it and she was unable to remember whether she did so in the case of the plaintiff. Little assistance can be gleaned from Ms. Byrne’s evidence. That is not a criticism of her as it would be quite impossible for her to have a recollection of having dealt with the plaintiff given that she would see about 2000 patients in any year.
Conclusions on information given to plaintiff
At no stage during her pregnancy or after delivery was the plaintiff clearly informed by any doctor, nurse or other personnel employed by the hospital that her tubal ligation had failed. The fact of the failure was not recorded in the plaintiff’s chart in clear terms. I think the criticism made by Dr. McKenna where he said the following is well founded.
“This is a case of the “emperor’s clothes” here. Everybody was not facing up to the obvious that this woman had had a failed tubal ligation and that plan B should come into play and that her tubes should be checked or she should be offered sterilisation again. Everybody was hedging around the main issue that there had been a problem”.
I am of the view that the plaintiff was aware that questions had been raised as to whether she was pregnant at the time of the sterilisation or not. She was also advised at the time of her discharge to return for an out patient appointment six weeks thereafter. The reason for that visit was explained to her by Dr. Lynch. Dr. Lynch was not in a position to say to her that the tubal ligation had failed but certainly made it clear that there was a question mark over it.
Dr. Boylan was of opinion that the failed sterilisation should have been brought to the plaintiffs notice in an unequivocal fashion. She should have been left in no doubt about it. In my view he is correct in that. That obligation was not discharged and there was a breach of the duty of care owed to the plaintiff in that regard.
Contributory negligence
The plaintiff did not attend the hospital for her six week check-up as advised. Had she done so I think it likely that matters would have been investigated further and a further pregnancy might well have been avoided. To have ignored the advice given to her by Dr. Lynch to attend for such an appointment, given what had occurred, was imprudent and in my view was also negligent. However no case of contributory negligence was pleaded against the plaintiff nor was it urged on me that her failure to take the advice offered to her on her discharge from the hospital amounted to such. Accordingly no further consideration need be given to this question.
Dr. Dunne
While the plaintiff was pregnant with Danielle she was also attending Dr. Dunne for antenatal care. He told the plaintiff to enquire in the Coombe as to the success or otherwise of her tubal ligation. He was aware of the discrepancy between the scan dates and the date of her last period. He was told that by the plaintiff. The plaintiff also told him that she was pregnant before she had the sterilisation. That information can only have been gleaned by the plaintiff from sources within the hospital. It again underscores the failure to tell her in unequivocal terms that her pregnancy arose subsequent to the sterilisation.
Dr. Dunne did not obtain any letter from the Coombe on the topic and accepted the plaintiff’s account that she was pregnant prior to the sterilisation being carried out.
Following her birth, Danielle had some health problems which involved her being brought back to hospital on occasion. Dr. Dunne was involved in at least one of those episodes which occurred when she was a few weeks old. That brought him into contact with the plaintiff. On the basis of what he was told by the plaintiff and the lack of any communication from the Coombe he was satisfied that she was infertile due to the sterilisation. Consequently he offered her no advice on any form of contraception.
The plaintiff came to him in March, 2001 and asked him to conduct a pregnancy test upon her. He did so. It was positive and her estimated date of delivery was the 5th October, 2001. In fact her seventh child Damien was born prematurely on the 13th August, 2001.
Dr. Dunne was now quite certain that the tubal ligation had failed and following the birth of Damien he advised the plaintiff to have a coil inserted. This was done in December, 2001 and the second tubal ligation was performed by Dr. Boylan on the 5th December, 2002.
Had Dr. Dunne been told of the correct position by the hospital I believe he would have advised the plaintiff on appropriate contraceptive measures. In fact no form of family planning was practiced by the plaintiff following the birth of Danielle and within a short time her pregnancy with Damien occurred.
Vicarious liability
There was a breach of the duty of care owed to the plaintiff by Dr. Murray in carrying out the tubal ligation. A second breach occurred by the hospital personnel failing to clearly tell the plaintiff of the failure of the sterilisation and to offer appropriate treatment to rectify that position.
Is the defendant hospital vicariously liable for any damages which arise as a result of the first breach? The hospital contends that it is not. Dr. Murray’s contract
The defendant referred to many aspects of Dr. Murray’s contract in arguing against vicarious liability. In the result they are not all that relevant on the topic since the defendant contends that ultimately the test to be applied is one of control. For completeness sake I deal hereunder with the terms of the contract.
Dr. Murray entered into a contract for appointment as a consultant at the Coombe Hospital on the 30th March, 1998. The contract is in the form generally referred to as the “consultant’s common contract”.
Under the contract Dr. Murray, as a category one consultant, undertook to work an aggregate of what are described as 33 ‘notional hours’ at the hospital per week. Under clause 6 of the contract he was responsible for producing an agreed schedule specifying how he intended to discharge his full contractual commitment over a period from Monday to Friday. He was obliged to furnish to the hospital such information on the discharge of his scheduled sessions as was necessary and reasonable to establish that he was fulfilling his contractual agreement.
Clause 8.3 of the contract permitted Dr. Murray to conduct private practice in accordance with the terms of a memorandum of agreement appended to the contract.
Clause 5 of the contract dealt with the nature of consultant appointments. It read as follows:
“5.1. For the purpose of this contract, a consultant is defined in the following general terms:
A consultant is a registered medical practitioner in hospital practice who, by reason of his training, skill and experience in a designated speciality, is consulted by other registered medical practitioners and undertakes full clinical responsibility for patients in his care, or that aspect of care on which he has been consulted, without supervision in professional matters by any other person. He will be a person of considerable professional capacity and personal integrity.
5.2. Being a consultant involves continuing responsibility for investigation and for the treatment of patients without supervision in professional matters by any other person. This continuing responsibility for investigation and for treatment of patients is a personal matter between each consultant and each patient in his care and it extends for as long as the patient remains in the consultant’s care. The consultant may discharge this responsibility directly in a personal relationship with his patient, or, in the exercise of his clinical judgment, he may delegate aspects of the patient’s care to other appropriate staff, or he may exercise responsibility concurrently with another doctor or doctors. Notwithstanding this however, the unique position of the consultant in the hospital requires that he carries the continuing responsibility for his patients so long as they remain in his care.
5.3. The employing authority and the consultant acknowledge that the provision of services to patients is a joint task which sets obligations on both parties.” (My emphasis)
The contract is a curious document in many ways and has all the hallmarks of having been drafted by a committee. For example under clause 2 of the agreement it is provided that it is subject to the terms and conditions specified in the contract, its appendices and in the memorandum of agreement appended to it. In that memorandum of agreement one finds reproduced verbatim in clause 2 the definition of consultant contained at clauses 5.1 and 5.2 of the contract itself. There is however an addition in clause 2 of the memorandum in the following terms:
“The agreed objective of the parties to this memorandum is the maintenance of the highest standards in the public hospital system. To this end, the remuneration, general conditions of employment and facilities are intended to attract and retain the major part of the practices of consultants of the highest calibre on the sites of public hospitals.”
Going back to the contract itself, clause 6.1 reads as follows:
“The Coombe Lying-in Hospital recognises your right to the exercise of your independent judgment in clinical and ethical matters (subject to the provisions of clause 8.11). Consultants in the Coombe Lying-in Hospital carry full clinical responsibility for patients under their care within the medical policy as determined from time to time by the Master and approved by the Board of the hospital.”
Clause 9.4 of the contract required Dr. Murray to keep himself indemnified against claims arising from malpractice and negligence in relation to his appointment. The hospital agreed to reimburse him to the extent of 90% in respect of the cost of such indemnity. Clause 2.10 of the memorandum of agreement contains a similar obligation.
The memorandum of agreement also repetitiously stipulates the role of the consultant in terms similar to those contained in clause 5 of the agreement. There are however some additional provisions most particularly contained at paras. 6.4.2. and 6.4.3. of the memorandum of agreement. They read as follows:
“6.4.2. Insofar as the work of the consultant is created by the demand placed on the hospital for the provision of specialist hospital services the consultant can be seen as providing a service to patients on behalf of the hospital (my emphasis). The work arising from him from the hospitals accident and emergency service is an example of the service provided by a consultant to patients on behalf of the hospitals. The work arising for him from general practitioner referrals or from secondary or tertiary referrals to the hospital where the hospital has a defined responsibility for providing such a service, are other examples of services the consultant is asked to provide. (My emphasis). It should be noted that regardless of the mode of referral, once a patient and doctor come into contact, then the relationship is a personal one between the patient and the doctor.
6.4.3. It can be seen from the description of the unique characteristics of consultant work that not alone does he provide some overall service to patients on behalf of the hospital to a population, he may also diagnose and treat patients directly referred to him personally (My emphasis). He may also wish, or be required, to undertake research and developmental work; to participate, as of right, in the selection process for Non Consultant Hospital Doctors; engage in teaching and education; conduct private practice and engage in systematic evaluation or audit of medical work with colleagues.”
The Defendants Submissions and Conclusions on Vicarious Liability.
The defendant submits that the hospital is not vicariously liable for Dr. Murray’s breach of duty by reference to four propositions which are contained in his written submissions. They are
“1. The correct legal criterion by reference to which a determination is made as to whether the hospital is vicariously liable for the consultant is the extent of the control exercised by the hospital over the actions of the consultant.
2. This is so whether or not the consultant was an employee of the hospital under a contract of service or an independent contractor under a contract for services.
3. In any event, the consultant was not in fact an “employee” of the hospital in that he was engaged by the hospital as a consultant obstetrician under the consultants common contract which, as a matter of construction, is a contract for services.
4. The hospital was not “in control” of the actions of the consultant in carrying out the plaintiff’s tubal ligation procedure”.
The defendant asserts that the issue of whether a person is liable in law for the wrongdoing of another is determined by reference to the element of control that is exercised regardless of the nature of the contract which governs those persons.
The defendant refers to the decision of the Supreme Court in Moynihan v. Moynihan [1975] 1 I.R. 192 and the High Court in Holohan v. Minister for Defence and Others (Unreported, Kinlen J. 30th July, 1998). In that case that judge stated that “the basis in modern jurisprudence for vicarious liability is control” and cited with approval an observation contained in the 3rd Edition of McMahon and Binchy on the Law of Torts which said of Moynihan’s case that “the decision is important because it clearly indicates that the control concept is used, not as a justification for vicarious liability, but rather as a test to determine the person for whose actions liability will be imposed on the defendant”. In the written submissions the defendant refers to the current edition of McMahon and Binchy and quotes the following section (paragraph 43.18) where this statement appears “since the Supreme Court decision in Moynihan v. Moynihan however the degree of control which the principal exercises seems to be emerging as the single most important, if not the crucial factor in establishing liability, in Ireland at least”.
The defendants did not quote the following passage which occurs on the next page of that issue of McMahon and Binchy. There the authors say of the control test as follows. “The control test, however, while useful in many cases does not seem to be determinative in all circumstances, for example, in what has become known as “the hospital cases”. Is the health authority or the hospital authority vicariousably liable for the negligence of resident surgeons, anaesthetists, nurses, etc? In these cases there is no question of the employer controlling the way in which the surgeon operates, and if the control test is doggedly adhered to the plaintiff may be denied access to “the deep-pocket”. After much uncertainty the rule seems to be well accepted that medical staff in the fulltime service of hospitals are employees for the purposes of vicarious liability. That this has been accepted in Ireland can be seen from such cases as O’Donovan v. Cork County Council. Here in an action against the defendant council for the alleged negligence of a surgeon and an anaesthetist the defendant council, while denying negligence, did not even contest the proposition that it would be vicariously liable if negligence were proved on the part of the surgeon or the anaesthetist. The remnants of the ancien regime have not disappeared completely, however, since Irish health services still retain distinctions between public and private patients, which impact on the issue of vicarious liability. In Bolton v. Blackrock Clinic Limited, the plaintiff unsuccessfully sued a cardiothoracic surgeon and a consultant thoracic physician for negligence in her treatment. She also sued the hospital where these specialists worked, on the basis of direct and vicarious liability. Having dismissed the plaintiff’s claim against the specialists, Geogehgan J. observed “that being so, there cannot be any question of vicarious liability of the hospital for medical negligence. Indeed at any rate the plaintiff was a private patient of the doctors in a private hospital, the question of vicarious liability may not arise”.
In my view the authors of McMahon and Binchy are correct in identifying that the control test is not of universal application and that hospital cases are to a considerable extent sui generis.
This view is not peculiar to Ireland. Later in the defendant’s written submissions there is a quotation from the 19th Edition of Clerk and Lindsell on Torts in the chapter dealing with vicarious liability. The defendant quotes the following: “Visiting consultants and surgeons, on the other hand, have been said not to be the employees of the hospital authorities, but, however this may be, the development of a different approach to the liability of hospital authorities for negligence occurring in the course of the treatment of their patients has probably deprived the point of practical significance. In many of the cases the tendency has been to treat the question of the hospital authorities liability as raising issues of primary, as well as vicarious responsibility. The hospital itself, it is said, is under a duty to its patients which it does not discharge simply by delegating its performance to someone else, no matter whether the delegation be to an employee or an independent contractor. On this basis it makes no difference whether or not a visiting consultant is a servant. There is some support for this view in Wilshire v. Essex Area Health Authority where Brown Wilkinson VC stated (obiter):-
“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.
In citing the above quotation from Clerk and Lindsell the defendant failed to refer to the preceding paragraph from the same work in which the following is to be found “it was formerly thought that hospital authorities could not be liable vicariously for the negligence of a member of their medical staff, whether professionally qualified or not, if the negligence occurred in the course of an operation or treatment calling for the exercise of medical skill and knowledge. As the element of control over the method of working was lacking, according to the traditional view it followed that they could not be regarded as the employees of the hospital authority. In modern case law however, a different view has prevailed and such professionally qualified persons as radiographers, house surgeons, full time assistant medical officers and staff anaesthetists have been held to be employees of the hospital authority for the purposes of vicarious liability. Indeed it is submitted that any member of the full time staff of the hospital should be regarded as an employee of the hospital authority”.
These passages from both Irish and English textbooks appear to me to be fully justified by reference to the case law cited in them and are correct. I do not propose to add to an already lengthy judgment by citing from all of the cases cited. However a number of quotations from two of the cases in my view accurately describe the position.
In Cassidy v. Ministry of Health (1951) 2 KB 343 the Court of Appeal, in allowing the appeal, held that a hospital authority is liable for the negligence of doctors and surgeons employed by the authority under a contract of service arising in the course of the performance of their professional duties. The decision to allow the appeal was a unanimous one. However Denning LJ (as he then was) went further than the other two Lords Justices where he said (at p. 362):-
“It has been said, however, by no less an authority than Goddard LJ in Golds case (1942 2 KB 293) that the liability for doctors on the permanent staff depends, on “whether there is a contract of service and that must depend on the facts of any particular case”. I venture to take a different view. I think it depends on this: Who employs the doctor or surgeon – is it the patient or the hospital authorities? If the patient himself selects and employs the doctor or surgeon, as in Hillyer’s case, the hospital authorities are of course not liable for his negligence, because he is not employed by them. But where the doctor or surgeon, be he a consultant or not, is employed and paid, not by the patient, but by the hospital authorities, I am of opinion that the hospital authorities are liable for his negligence in treating the patient. It does not depend on whether the contract under which he was employed was a contract of service or a contract for services. That is a fine distinction which is sometimes of importance; but not in cases such as the present, where the hospital authorities are themselves under a duty to use care in treating the patient.
I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services”.
At the conclusion of his judgment Denning LJ said “turning now to the facts in this case, this is the position: the hospital authorities accepted the plaintiff as a patient for treatment, and it was their duty to treat him with reasonable care. They selected, employed, and paid all the surgeons and nurses who looked after him. He had no say in their selection at all. If those surgeons and nurses did not treat him with proper care and skill, then the hospital authorities must answer for it, for it means that they themselves did not perform their duty to him. I decline to enter into the question whether any of the surgeons were employed only under a contract for services, as distinct from a contract of service. The evidence is meagre enough in all conscience on that point. But the liability of the hospital authorities should not, and does not, depend on nice considerations of that sort. The plaintiff knew nothing of the terms on which they employed their staff; all he knew was that he was treated in the hospital by people whom the hospital authorities appointed; and the hospital authorities must be answerable for the way in which he was treated”.
Denning LJ may have been somewhat ahead of his time in expressing these views. Neither of his colleagues on the Court of Appeal went so far since they decided that the hospital authority was liable in respect of doctors who were employed under a contract of service. However the views of Denning LJ in my view are correct and are applicable in the instant case.
In Roe v. Minister of Health (1954) 2 QB 66 the Court of Appeal again had to consider the question of vicarious liability. All three judges delivered separate judgments to the same effect in that they dismissed the appeal. In his judgment Somervell LJ regarded the question of vicarious liability as being settled by reference to whether or not the doctor was part of the permanent staff of the hospital. More to the point, however, for this case is the judgment delivered by Morris LJ.
He said (at p. 90) “If a patient in 1947 entered a voluntary hospital for an operation it might be that if the operation was to be performed by a visiting surgeon the hospital would not undertake, so far as concerned the actual surgery itself, to do more than to make the necessary arrangements to secure the services of a skilled and competent surgeon. The facts and features of each particular case would require investigation. But a hospital might in any event have undertaken to provide all the necessary facilities and equipment for the operation and the obligation of nursing and also the obligation of anaesthetizing a patient for his operation. The question in the present case is whether the hospital undertook these obligations. In my judgment they did. There can be no doubt but that they undertook to nurse the plaintiffs and to provide the necessary facilities and equipment for the operations. I think they further undertook to anaesthetise the plaintiff. The arrangements made between the hospital and Dr. Pooler and Dr. Graham, together with the arrangements by which a resident anaesthetist was employed, had the result that the hospital provided a constantly available anaesthetic service to cover all types of cases.
It is true that Dr. Pooler and Dr. Graham could arrange between themselves as to when they would respectively be on duty at the hospital: and each was free to do private work. But these facts do not negative the view, to which all the circumstances point, that the hospital was assuming the obligation of anaesthetising the plaintiffs for their operations. I consider that the anaesthetists were members of the “organisation” of the hospital: they were members of the staff engaged by the hospital to do what the hospital itself was undertaking to do. The work which Dr. Graham was employed by the hospital to do was work of a highly skilled and specialised nature, but this fact does not avoid the application of the rule of respondeat superior.”
The views of the members of the Court of Appeal in these two cases, expressed as they were over 50 years ago, appear to be correct to this day and of application in the instant case.
The plaintiff was referred not to a particular surgeon but to the Coombe Hospital. She had no say in the choice of who would carry out her sterilisation. It was done by Dr. Murray. He was part of the “organisation” or permanent staff of the hospital. The performance of the operation was part of a service provided by the hospital to the plaintiff. Dr. Murray was the person in the hospital’s organisation via whom that service was provided.
In these circumstances it matters not whether Dr. Murray was employed under a contract of service or a contract for services. In my view having regard to the principles enunciated in both Cassidy and Roe’s case the hospital here is liable for any want of care on the part of Dr. Murray.
Damages for pregnancy, birth and second sterilisation
The defendant concedes that in the event of a finding of negligence the plaintiff is entitled to damages for the pain suffering and inconvenience of pregnancy and childbirth and of course for having to have the sterilisation repeated. Special damages for extra medical expenses are also conceded. These concessions are made by reference to the views expressed by the majority of the members of the House of Lords in McFarlane v. Tayside Health Board (2000) 2 AC 59.
In the light of these concessions I am not called upon to consider whether as a matter of principle it is open to the plaintiff to recover damages arising from her pregnancy and the births of Danielle and Damien.
In McFarlane’s case Lord Gill, the Lord Ordinary (as he then was) considered that pregnancy could not be equiparated with a physical injury. Even if it could, he held that it was not an injury for which damages are recoverable. The existence of a child and the mother’s happiness derived from it could not be ignored and they outweighed the pain and discomfort.
He held that damages were not recoverable as a matter of principle. That was not a view shared by the Inner House of the Court of Session or the majority in the House of Lords. Whether Lord Gill’s view is to be preferred to that of the other judges is a matter which I am not called upon to decide in the light of the concession which the defendants make as to the entitlement of the plaintiff to damages. I will assess these damages later.
The largest part of the plaintiff’s claim in these proceedings is in respect of the cost of rearing the two children born subsequent to her first sterilisation. That sum has been agreed at €27,000 to date and €354,678.00 for the future. The question to which I must now turn my attention is as to whether the plaintiff is entitled to recover such damages.
Damages for rearing Danielle and Damien
In McFarlane’s case Lord Gill disallowed the claim for damages for the costs of rearing the child that was born following the failed vasectomy of the father. He said:
“I am of the opinion that this case should be decided on the principle that the privilege of being a parent is immeasurable in money terms; that the benefits of parenthood transcend any patrimonial loss, if it may be so regarded, that the parents may incur in consequence of their child’s existence; and that therefore the pursuers in a case such as this cannot be said to be in an overall position of loss”.
In the present case the plaintiff has been at pains throughout her case to make it clear that both Danielle and Damien were welcomed into her family by both parents and their siblings. The parents have since separated but Danielle and Damien continue to be “loved, cherished and supported by both of them. Their children are a source of joy and satisfaction to them. They, no more than any other parents, do not assess their relationship with Danielle and Damien in terms of profit and loss. They do not seek compensation from the courts in respect of any of the intangible burdens in the upbringing of their children. They accept those burdens as do any parents gladly”. Given this acknowledgement of the joy and satisfaction that these two children have brought to her there is a certain incongruity in the plaintiff seeking to recover the costs of rearing them from the defendant. I think there is much to be said for the observations of Lord Gill in this regard.
Lord Gill’s decision was appealed to the Inner House. The appeal was allowed. The case then went to the House of Lords which restored the conclusion of Lord Gill. Their Lordship’s House held unanimously that a negligent doctor is not required to meet the cost of bringing up a healthy child born in circumstances such as obtain in the instant case. In reaching that conclusion the legal reasoning and the language used by the five Law Lords differed. But in essence the conclusion which was reached was that fairness and reasonableness do not require the damages payable by a negligent doctor should extend so far as to require him to pay for the cost of rearing an unintended healthy child.
That view expressed by the House of Lords is one which has found favour in the majority of the common law countries where this issue has arisen.
The speeches of their Lordships in McFarlane’s case contain a detailed analysis of all of the previous decisions in England, Wales, Scotland, the Commonwealth countries, other common law jurisdiction and a number of civil jurisdictions.
In his speech Lord Steyn traces the history of such claims in England beginning with Udale v. Bloomsbury Area Health Authority [1983] I.W.L.R. where Jupp J. rejected a claim for the cost of bringing up an unwanted child. That Judge observed that the birth of a child is “a blessing and an occasion for rejoicing”. In 1986 Peter Pain J. in Thake v. Maurice [1986] Q. B. 644 declined to follow Udale’s case and allowed such a claim. He observed that social policy which permitted sterilisation implied that it was generally recognised that the birth of a healthy child was not always a blessing. These divergent approaches were considered by the Court of Appeal in Emeh v. Kensington and Chelsea and Westminister Area Health Authority [1985] 1 Q.B. 1012. The unwanted child in Emeh’s case had been born with congenital disabilities. The defendants argued that damages should be limited to the extra costs of upbringing attributable to the disabilities. Full costs were allowed but in what was described as a ‘modest sum of £6,000’.
It is clear that the decision in Emeh’s case was one which created unease amongst judges. As is recorded by Lord Steyn that was memorably articulated in Jones v. Berkshire Area Health Authority (Unreported, 2nd July, 1986) another unwanted pregnancy case where Ognall J. said:
“I pause only to observe that, speaking purely personally, it remains a matter of surprise to me that the law acknowledges an entitlement in a mother to claim damages for the blessing of a healthy child. Certain it is that those who are afflicted with a handicapped child or have longed desperately to have a child at all and are denied that good fortune, would regard an award for this sort of contingency with a measure of astonishment. But there it is: that is the law”.
Since the decision of the House of Lords in McFarlane’s case it is no longer the law in England and Wales. Furthermore the decision in McFarlane was subsequently considered by a differently constituted judicial committee of the House of Lords in Rees v. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and was not disturbed.
That the view of the House of Lords in McFarlane is not out of kilter with other jurisdictions can be ascertained by reference to the following passage from the speech of Lord Steyn:
“In the United States the overwhelming majority of state courts do not allow recovery of the costs of bringing up a healthy child: see the review in Johnson v. University Hospital of Cleveland, 540 N.E. 2d 1370. In Canada the trend is against such claims: see Kealey v. Berezowski [1996] 136 D.L.R. (4th) 708 which contains a review. By a majority the New South Wales Court of Appeal in CES v. Superclinics (Australia) Pty. Ltd. 38 N.S.W.L.R 47 held that the plaintiff had, through the negligence of the defendants lost the opportunity to have an abortion which would not necessarily have been unlawful. The court ordered a retrial on the issue as to whether an abortion would have been unlawful. Kirby P. considered that damages could be awarded for the cost of bringing up the child. Priestly J.A. was prepared to allow a limited recovery for “wrongful birth” but not for child rearing expenses and Meagher J. A. agreed with Priestly J. A. on this point, though in a dissenting opinion he concluded that public policy was an absolute bar to the award of damages in “wrongful birth” cases. In New Zealand there is a no fault compensation scheme. It is, however, instructive to note that the Accident and Compensation Authority held that there was no causal connection between the medical error and the cost of raising the child. In Germany the Constitutional Court has ruled that such a claim is unconstitutional in as much as it is subversive of the dignity of the child. But the Bundesgerichtshof has rejected this view and permits recovery of the costs of bringing up the child. The Federal Court observed that compensation not only has no detrimental effect on this child, but can be beneficial to it. In France The Cour de Cassation has ruled that:
“Whereas the existence of the child she has conceived cannot in itself constitute for the mother a loss legally justifying compensation, even if the birth occurred after an unsuccessful intervention intended to terminate the pregnancy”.
Such claims are not allowed. From this comparative survey I deduce that claims by parents for full compensation for the financial consequences of the birth of a healthy child have sometimes been allowed. It may be that the major theme in such cases is that one is simply dealing with an ordinary tort case in which there are no factors negativing liability in delict. Considerations of corrective justice as between the negligent surgeon and the parents were dominant in such decisions. In an overview one would have to say that more often such claims are not allowed. The grounds for decision are diverse. Sometimes it is said that there was no personal injury, a lack of forseeability of the costs of bringing up the child, no causative link between the breach of duty and the birth of a healthy child, or no loss since the joys of having a healthy child always outweigh the financial losses. Sometimes the idea that the couple could have avoided the financial costs of bringing up the unwanted child by abortion or adoption has influenced decisions. Policy considerations undoubtedly played a role in decisions denying a remedy for the cost of bringing up an unwanted child. My Lords, the discipline of comparative law does not aim at a poll of the solutions adopted in different countries. It has the different and inestimable value of sharpening our focus on the weight of competing considerations. And it reminds us that the law is part of the world of competing ideas markedly influenced by cultural differences. Thus Fleming has demonstrated that it may be of relevance, depending on the context, to know whether the particular state has an effective social security safety net”.
Whilst the five Law Lords in McFarlane came to the same conclusion they did so for different reasons. I think there is little to be gleaned by quoting large extracts from their individual speeches. Rather I should attempt to summarise the rationale for the decision. In the case of Lords Slynn, Steyn and Hope they took the view that a claim such as the present one was neither fair or just or reasonable. In the case of Lord Clyde considerations of distributive justice appeared to weigh heavily in leading him to his conclusion. Lord Millett’s view was rather similar to that expressed at first instance by Lord Gill to the effect that the advantages and disadvantages of parenthood are so bound up together that the benefits should be regarded as outweighing any loss. All of these appear to me to boil down to the view which I have already expressed in this judgment to the effect that their Lordships took the view that such a claim was neither fair or just or reasonable.
Indeed I am fortified in this expression of opinion by reference to the later case of Rees v. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309.
That was a case which resulted in seven Law Lords being assembled since they were asked to reconsider McFarlane’s case. A number of their Lordships were common to both cases. By a majority the decision in McFarlane was applied. In not disturbing McFarlane the Court considered developments which had taken place in the meantime in other countries and in particular the Australian case of Cattanach v. Melchior [2003] H.C.A. 38.
Perhaps the most useful speech from those in the majority in the Rees case is that of Lord Bingham of Cornhill. In reviewing the decision in McFarlane he said:
“The five members of the House who gave judgment in McFarlane adopted different approaches and gave different reasons for adopting the third solution listed in paragraph (3) above (i.e. that no damages may be recovered where the child is born healthy and without disability or impairment). But it seems to me clear that all of them were moved to adopt it for reasons of policy (legal, not public, policy). This is not a criticism. As Lord Denning M. R. said in Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373, 397:
“This case is entirely novel. Never before has a claim been made against a council or its surveyor for negligence in passing a house. The case itself can be brought within the words of Lord Atkin in Donoghue v. Stevenson: but it is a question whether we should apply them here. In Dorset Yacht Co. Limited v. Home Office [1970] A.C.1004, Lord Reid said, at p. 1023, that the words of Lord Atkin expressed a principle which ought to apply in general “unless there is some justification or valid explanation for its exclusion”. So did Lord Pearson at p. 1054. But Lord Diplock spoke differently. He said it was a guide but not a principle of universal application (p. 1060). It seems to me that it is a question of policy which we, as judges, have to decide. The time has come when, in cases of new import, we should decide them in accordance with the reason of the thing.
In previous times, when faced with a new problem, the judges have not openly asked themselves the question: what is the best policy for the law to adopt? But the question has been there in the background. It has been concealed behind such questions as “was the defendant under any duty to the plaintiff? Was the relationship between them sufficiently proximate? Was the injury direct or indirect? Was it foreseeable, or not? Was it too remote? and so forth.
Nowadays we direct ourselves to considerations of policy. In Rondel v. Worsley [1969] 1 AC 191, we thought that if advocates were liable to be sued for negligence they would be hampered in carrying out their duties. In Dorset Yacht Co. Limited v. Home Office [1970] AC 1004, we thought that the Home Office ought to pay for damage done by escaping Borstal boys, if the staff was negligent, but we confined it to damage done in the immediate vicinity. In S.C.M. (United Kingdom) Limited v. W.J. Whittall and Son Limited [1971] 1 Q.B. 337, some of us thought that economic loss ought not to be put on one pair of shoulders, but spread among all the sufferers. In Launchbury v. Morgans [1971] 2 Q.B. 245, we thought that as the owner of the family car was insured she should bear the loss. In short, we look at the relationship of the parties: and then say, as a matter of policy, on whom the loss should fall”.
The policy considerations underpinning the judgments of the House were, as I read them, an unwillingness to regard a child, (even if unwanted) as a financial liability and nothing else, a recognition that the rewards of parenthood (even if involuntary) may or may not bring cannot be quantified and a sense that to award potentially very large sums of damages to the parents of a normal and healthy child against a national health service always in need of funds to meet pressing demands would rightly offend the community sense of how public resources should be allocated”.
While this latter observation may have little application here nonetheless it seems to me that the question which I have to ask is one of principle or, if one prefers, policy.
Principle/Policy in Irish Law
The decision in the Supreme Court in Fletcher v. The Commissioners for Public Works [2003] 1 IR 465 makes it plain that it is proper to exclude an award of damages in certain circumstances on the grounds of policy. That case raised a question which had not been considered in this jurisdiction before. It was whether, and if so, to what extent and subject to what limitations, an action might lie in negligence where the sole injury for which damages were sought to be recovered was a psychiatric condition resulting from fear of contracting an illness in the future as a consequence of alleged negligent acts and omissions. In this court O’Neill J. awarded damages to the plaintiff. His decision was reversed by a unanimous Supreme Court with two written judgments being delivered. The first was that of Keane C. J. and the second was by Geoghegan J.
Both judgments recognised that a question of policy fell to be decided by the court. Indeed in his judgment Geoghegan J. mirrored to some extent the observations of Lord Denning M. R. in Dutton’s case, the relevant extract from which is contained in the quotation from the speech of Lord Bingham in the Rees case which I have already reproduced.
Geoghegan J. said:
“It is against this background of the case law, which I have reviewed, that this court must decide, as a matter of policy and of reasonableness, whether claims for damages for psychiatric injury only and resulting from fear of asbestos related diseases of a degree which is objectively irrational are recoverable. Traditionally, courts do not always use the actual word “policy”. They may attempt to draw artificial limits to what can be regarded as being reasonably foreseeable or they may, in considering proximity or other questions in relation to the existence of a duty of care, invoke the concept of reasonableness so that a duty of care will not in fact be imposed if the court considers it unreasonable to do so. The third control mechanism which the court may impose is in relation to particular heads of damage or finally, they may expressly deny a claim on grounds of public policy”.
Keane C. J. and Geoghegan J. both cite with approval observations from two different members of the House of Lords in the case of White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455. Keane C. J. cites the views of Lord Steyn whilst Geoghegan J. those of Lord Hoffmann.
Having quoted from Lord Hoffmann’s speech Geoghegan J. said that he agreed “that pragmatic control mechanisms must be applied in actions for pure psychiatric damage and, in many instances, even in the interests of distributive justice”.
These observations of the Supreme Court appear to entitle me to decide on the recoverability of damages as a matter of principle or legal policy since the question has never heretofore been considered by courts in this jurisdiction. In making that decision the court is entitled to have regard to concepts of reasonableness and distributive justice.
Decision on costs of upbringing
I conclude that it is not open to the plaintiff to recover damages for the cost of upbringing the two healthy children which she bore subsequent to her failed sterilisation. I do not believe that the law in this jurisdiction should be extended so as to allow the recovery of such damages.
I am persuaded that the conclusions reached by the House of Lords in both in the McFarlane and Rees cases are correct. They are to be preferred to the majority view expressed in the Australian case of Cattanach v. Melchior. I have not cited particular passages from the judgments in that case since I share the view of Lord Millett (as expressed in Rees) that “despite the diversity of opinion, the judgments cover familiar ground and contribute no new insight”.
I am of opinion that it would not be fair or reasonable to visit a doctor who negligently performs a sterilisation procedure with the cost of rearing a healthy child that is conceived and born subsequent to the failure of such procedure. Even if one disagrees with this approach the refusal to award damages in circumstances such as this can be equally justified by considerations of distributive justice as particularly exemplified in the speech of Lord Clyde. Alternatively the view can be justified by reference to the views of Lord Gill at first instance and Lord Millett in the House of Lords to the effect that the benefits of a healthy child outweigh any loss incurred in rearing the child. Whilst the parties here have agreed the quantum of damages a decision in favour of the claim made would open the door to a limitless range of claims related to every aspect of family life.
I obtain some comfort that in arriving at this decision, the court is in harmony with the majority of decisions in the common law world. The vast majority of state courts in the United States, the courts of England and Wales, Scotland and a number of civil law courts are of like mind.
I am also of opinion that the conclusion which I have arrived at blends more harmoniously with the constitutional order which obtains in this jurisdiction then would a decision to the contrary. The value which the Constitution places upon the family, the dignity and protection which it affords to human life are matters which are, in my view, better served by a decision to deny rather than allow damages of the type claimed.
Accordingly I refuse to award damages in respect of the costs of rearing Danielle and Damien.
Assessment of Damages
There is no doubt but that the plaintiff is entitled to recover damages for having to undergo a second tubal ligation. That was carried out on the 5th December, 2002. The plaintiff has no recollection of it. It was carried out by Dr. Boylan and was quite straightforward. It did not involve overnight hospitalisation and the plaintiff had no complaints thereafter. She must also have had the usual anxiety that accompanies any surgical procedure and is entitled to be compensated for that. It was however a minor procedure carried out speedily and uneventfully. I award the sum of €10,000 damages to compensate for having to undergo this second operation.
As I have already pointed out, the defendant has conceded that in the event of a finding of negligence the plaintiff is entitled to damages for the pain, suffering and inconvenience of pregnancy and childbirth together with any special damages for extra medical expenses involved. The question of principle as to whether there is in law an entitlement to such damages will have to await another case where a concession such as the one made in this case is not forthcoming. It is sufficient to record that there is no unanimity of judicial opinion throughout the common law world on the topic.
Pregnancy is not an illness or a disease. It does cause pain, sickness and distress. It is an entirely natural process. In the present case it resulted in the births of two unique human beings, Danielle and Damien, who are both healthy. Danielle was born one month prior to term. She did have some breathing difficulties and some infections thereafter but they had all resolved within a year and she is a healthy child. Damien was born seven and a half weeks prior to term. He is also healthy.
I accept the plaintiff’s evidence that both pregnancies had attendant difficulties over and above what might be regarded as the norm. In the case of Danielle the plaintiff had to wear a support strap which was found to be ineffective and so for six to eight weeks prior to and subsequent to her confinement was on crutches. In the case of her pregnancy with Damien she had similar difficulties and was on crutches for three weeks prior to his birth. She had to remain on crutches for six to eight weeks subsequent thereto. Danielle’s pregnancy was the longer of the two and the more difficult from the plaintiff’s point of view.
In assessing damages I also take account of the shock and emotional distress caused to the plaintiff when she discovered that she was pregnant with these two children. She did not want either pregnancy and would not have had them but for the defendants breaches of duty.
I assess damages in respect of the pregnancy and birth of Danielle at €45,000. In respect of the pregnancy and birth of Damien I award €35,000.
Result
I award the plaintiff a total of €90,000 damages in respect of the second tubal ligation and the pregnancy and birth of Danielle and Damien. I dismiss the claim for agreed damages in the total sum of €381,678 for the upbringing of the two children.
Reilly v Devereux
[2009] IESC 22JUDGMENT of Mr Justice Michael Peart delivered on the 3rd day of April 2009:
The plaintiff is a medical doctor who in 2002 decided to undergo breast enlargement surgery. The negligent manner in which that surgery was conducted has given rise to her claim for damages in these proceedings.
The first named defendant is the surgeon who performed the operation.
The second named defendant is a limited company incorporated in this jurisdiction and whom the plaintiff first consulted in relation to her intended surgery, and who made the arrangements for that surgery to be performed, and which received the agreed fee from the plaintiff for that surgery.
The third named defendant is the hospital at which the surgery was performed.
The first named Third Party is a surgeon in London. At this time he was a senior colleague of the first named defendant at Bart’s Hospital, and who the plaintiff believed was going to perform her surgery. He was in fact in attendance at Clane Hospital on the date of the plaintiff’s surgery, and available for consultation by the first named defendant at the third named defendant hospital at the time her surgery was performed, if that had been required.
The second named Third Party is a limited company incorporated in the United Kingdom and which provides certain secretarial, management and accountancy services for some surgeons in London, including the first named Third Party and the first named defendant.
The plaintiff’s surgery:
The plaintiff made a decision in 2000 to undergo breast enlargement surgery. It is unnecessary to set out the reasons given by her for this decision or why she had not made this decision earlier in her life. She was aged fifty four when the operation was performed in July 2000. She is unhappy with the outcome of her surgery which she considers to have been performed negligently, firstly by the implants being placed somewhat higher than they ought to have been, with the result that the scars, which would under normal circumstances be concealed beneath the infra-mammary folds post-operatively, are visible, thereby revealing to anybody who might see them that she has undergone this surgery; and secondly by the left scar being unacceptably, unnecessarily and incorrectly longer than usual, and therefore visible, even if the implants had not been placed somewhat higher than they ought. This was something which she did not want to happen and which she claims ought not to have happened if the surgery had been properly performed by the first named defendant. The scar under her right breast is 6.5 cms in length and is 4cms below the infra-mammary fold, and that on the left is 8cms in length and is 4cms below the infra-mammary fold. The scar on the left side is unacceptably long, and both scars are visible even when wearing a bra or bikini-top. No improvement can be achieved by further surgery or treatment.
Some days after her surgery she experienced pain on her left side and had a high temperature. She rang the third named defendant hospital about this, and later received a telephone call from the first named third party. She had not met him by this date, but he advised her that her pain/infection had nothing to do with the surgery performed and that she should take some pain-killers. After six weeks she attended at Clane Hospital as I have already referred to, and on that occasion she spoke to Mr Moir, the first named defendant, and on this occasion she herself saw her scars for the first time. She stated that the first named defendant had himself been shocked by the appearance of the scars and did not understand how it had occurred.
She was told to leave things be for six months in the hope that at that stage something could be done about her scars. She waited for that period, and received an appointment to attend the hospital again, but that appointment was cancelled. A further appointment was arranged which she attended and on that occasion she met Mr Carver, the first named third party for the first time. He expressed the view that there was nothing which could be done about the scars. That was her only involvement with Mr Carver.
The first named defendant, Mr Moir, who performed this surgery, was not professionally represented at the hearing before me, but he was in attendance and gave evidence during which he very candidly admitted that the surgery had been performed negligently by him. He chose not to cross-examine any evidence adduced. The Court has heard evidence from Michael J. Earley, Consultant Plastic Surgeon. His opinion is that the visibility of the left scar is unacceptable and resulted from the fact that this scar is unacceptably long and too low, but that it is all the more visible on account of the high placement of the left implant. He has stated that if the right implant was properly placed the right scar itself would be acceptable as to its length. In these circumstances it is clear that the surgery was negligently performed by the first named defendant. His candid admission and apology to the plaintiff in court during his evidence was appropriate and no doubt welcomed by her.
No negligence has been adduced which could implicate the third named defendant hospital in relation to the plaintiff’s surgery. It had simply given the first named defendant and the first named Third Party theatre admission rights and had permitted its hospital to be used for this surgery.
The issue principally arising in this proceedings, apart from the assessment of general and other damages to which the plaintiff is entitled, is whether the second named defendant has been negligent, and if so, whether it is entitled to an indemnity in respect thereof from either or both of the Third Parties. I will address these questions after reaching a conclusion as to the amount of damages to which the plaintiff is entitled for the unsatisfactory result which her surgery achieved, and which has disappointed and upset the plaintiff greatly. It has to be borne in mind that even if the surgery had been properly performed the plaintiff would of necessity have two surgical scars, but they would under normal circumstances not have been visible to the extent that they now are.
The plaintiff’s damages:
It was not until about six weeks after this surgery that the plaintiff first saw the surgical scars. Prior to this she had been bandaged. The plaintiff was appalled at what she saw. It had been very important to her that nobody, even her immediate family, should become aware that she had undergone this surgery, and she believed, as was confirmed by her surgeon prior to surgery, that her scars would remain concealed beneath the infra-mammary folds. Her decision to have this surgery was made some time after her husband had died. She had never in her life felt able to wear a bikini, and she had undergone this surgery not only to achieve a breast enlargement per se but also so that she could, if she so wished, wear a bikini. These matters were of importance to her, and, particularly, that the surgical scars would not be unnecessarily visible.
She is entitled in my view to be compensated for the fact that she now has visible scars, particularly on the left side, and also for the fact that the purpose of the surgery has to a large extent been frustrated by the visibility of these scars. They are permanently visible and this cannot be addressed by further treatment. She has received a permanent disfigurement of a particularly distressing and embarrassing kind.
In my view general damages in the sum of €75000 are appropriate in the particular circumstances of the plaintiff and her intention when she decided to undergo this surgery. She is also in my view entitled to recover the fee for this surgery since she is now in a worse position than if she had not had the surgery at all. The fee paid by her was £4050, which has been stated to be €5142.43, giving a total of €80142.43.
The relationship between the plaintiff and the second named defendant (PLL):
PLL is a company which advertised its services which included the provision of cosmetic surgery such as breast enlargement. PLL does not itself perform surgery or provide medical care and treatment directly. The plaintiff decided to make contact with PLL in July 2000 in order to make arrangements for this surgery to be performed. Following an initial telephone call to PLL she attended an appointment at Clane Hospital where she had a consultation with the first named defendant. She was content with this consultation and what she was told, and she decided to go ahead with the surgery. She was happy that the first named defendant was suitably qualified, as indeed he was, and she was given a date for her surgery by PLL. In fact she had been expecting that her surgery was to be performed by the first named third party, but nothing turns on the fact that it was in fact the first named defendant who performed her surgery. She had no concerns about the identity of the surgeon or their qualifications. She is a medical doctor herself and assumed, as she was entitled to, that whoever performed her surgery at the hospital would be appropriately qualified.
Prior to her surgery she paid the requested fee to PLL by cheque. She had no involvement in how that fee was divided between the surgeon, the hospital and PLL.
The relationship between PLL and the first defendant, and the first and second named third parties:
PLL submits that in the circumstances where the first named defendant, Mr Moir, was provided to it by or through the second named third party (PPS) for the purpose of the plaintiff’s surgery, that entity should indemnify it in respect of any damages arising from the negligence of the first named defendant. I have heard evidence of what the involvement of PPS has been in relation to the first named defendant, and as to the relationship between PLL and PPS.
Put plainly, the business carried on by PLL was to advertise in Ireland for patients wishing to undergo cosmetic surgery of various kinds, and having secured clients so interested, to arrange for them to speak to a suitably qualified surgeon in the hope that this consultation would result in a decision by the patient to undergo the surgery. PPS is company operating in London which provides certain private practice management and administration services to about fourteen surgeons in London. PLL does not itself provide any medical services.
PLL had discussions with PPS in 1998 when setting up its business, and arrangements were put in place whereby if a client contacted PLL expressing an interest in having some cosmetic surgery, PPS would be contacted and it would make arrangements for a qualified surgeon such as Mr Carver or Mr Moir to come over to Dublin to discuss the surgery with the client. In the event that the client made the decision to go ahead with the surgery, PLL would make arrangements with Clane Hospital for surgery to be performed on a particular date. PPS would arrange for the surgeon to travel over from London in order to perform that surgery. This would typically occur at a weekend. The client would pay a composite fee to PLL which would in turn pay the hospital and PPS, keeping a portion of the fee itself. PPS would then pay the surgeon who performed the surgery.
According to Mr Monahan of PLL it is Mr Carver who is the central figure in, and had a 50% shareholding in PPS, with Mr Tony Briggs having the other 50%. He stated also that Mr Carver had what he described as a “very high conversion rate”. That is a way of saying that he was very good at turning a consultation with a client into a booking for surgery.
The first named defendant presumed that professional indemnity insurance was in place for this surgery at Clane Hospital, either through PLL or through PPS. It would appear that this in fact was not the case. It would appear that PLL had some form of insurance in place, but that since this claim was not notified in a timely manner to that insurance company by PLL the claim being made by the plaintiff is not being covered.
It appears that Mr Moir’s own professional indemnity insurance covers any surgery carried out by him in the United Kingdom and not outside it. That has obviously left the first named defendant exposed to the plaintiff’s award of damages personally. When he had originally received a notification of the plaintiff’s claim he had presumed that it would be looked after by Mr Carver or Mr Briggs through PPS and that solicitors would be instructed by the insurers. However, as I have said, no insurance was in place for surgery outside the United Kingdom.
The first named defendant, Mr Moir, was not party to any of the arrangements entered into between PLL and PPS. He was simply asked by PPS to travel to Clane Hospital on this particular day in order to perform the plaintiff’s surgery. He was never quite sure whether it was Mr Monahan of PLL or Mr Carver/Mr Briggs of PPS who were in charge of these arrangements. He knew that there was some arrangement between PLL and PPS, and it was an opportunity for him to earn additional income at the weekends.
The first named defendant, Mr Moir, stated that both he and the first named third party Mr Carver are independent surgeons for whom PPS simply perform some administrative functions, such as controlling their diaries, organising tax returns, collecting fees and suchlike. Neither of them is employed as such by PPS. He stated that in so far as Mr Carver would on occasion be at Clane Hospital in an adjoining operating theatre he was available to him for advice or consultation should that need arise, but he rejected any notion that he was working under the direction as such of Mr Carver.
Mr Monahan of PPS has stated that his understanding was that Mr Carver would be supervising Mr Moir during the surgery being performed at Clane Hospital. It was apparently his understanding that if Mr Carver was unable to do the surgery himself he would supervise whatever surgeon actually did the surgery. He stated also that his principal concern was simply that whatever surgeon was sent over by PPS would be a suitably qualified surgeon and one who would perform the surgery in a non-negligent manner. He described the role of PLL as simply locating the clients, and providing the facilities and some administration in relation to the surgery. PLL had no involvement in the medical aspects of the relationship with the client, that being the responsibility solely of PPS and the surgeon involved. He went on to say that he at all times had confidence in Mr Carver and had a high opinion of his skill and abilities.
Mr Tony Briggs gave evidence and described the services which PPS provides for the fourteen surgeons for whom it provides those services. Those services include administration and management support. These involve managing diaries for operations, issuing invoices and collecting fees. Some accountancy services are also provided. He described how the relationship between PPS and PLL began, and what it entailed as far as making arrangements for a surgeon to travel to Ireland for consultations and surgery for clients who had made initial contact with PLL, who were advertising for persons who might be interested in having cosmetic surgery carried out in Ireland. Any surgeon provided through PPS was a fully qualified surgeon. He stated that before any surgeon could have theatre rights in Clane Hospital his/her qualifications would have to be checked by the hospital, and that was done. He confirmed that neither Mr Moir nor Mr Carver were employed as such by PPS. They simply managed their private practices in the way described, and had no responsibility for how surgery might be carried out in any particular case.
Conclusions:
I am satisfied firstly that when performing surgery in Ireland, Mr Moir did so as an independent contractor. He was not an employee as such of PPS. That company’s involvement is confined to the provision of essentially secretarial and administrative services as described. They were the contact point for PLL when arranging for a surgeon to see clients and where necessary to perform the surgery. Their duty obviously involved ensuring that any surgeon so provided was a suitably qualified surgeon, but that is not the same as saying that PPS would be liable for any surgery which was performed negligently, as in this case. Any such negligence is a matter between the patient and that surgeon, and possibly between the patient and PLL with whom the contract for surgery was made. There has been no evidence to even suggest that part of these arrangements involved the giving of an indemnity to PLL in respect of any negligence being found against the surgeon. Those surgeons provided through PPS were not employees of PPS and there is no question of any vicarious liability arising.
The fact that Mr Carver is a 50% shareholder in PPS does not alter his position. He was not in any way negligent in this case. As it happens, Mr Carver was present at Clane Hospital on the day on which the plaintiff underwent her surgery with Mr Moir. He was operating on other patients in an adjoining theatre at the hospital. While it is the case that in such circumstances he was available to be consulted by Mr Moir if that need arose, it cannot be said that Mr Carver was in any supervisory role in relation to the plaintiff’s surgery in the sense that he shared the responsibility to ensure that her surgery was properly performed. Mr Moir was the surgeon. He was fully qualified to perform that surgery, and the responsibility for the unsatisfactory outcome is the responsibility of Mr Moir.
I am satisfied therefore that it is the first named defendant who was negligent in relation to the plaintiff’s surgery. While the second named defendant owed a duty of care to the plaintiff arising from its relationship with her, there is no evidence that it breached its duty of care to her. It had no direct involvement in the surgery either directly or on the basis of any vicarious liability, since Mr Moir was not its employee, and the surgeon provided by PLL, through PSS was appropriately qualified to carry out this operation on the plaintiff. There is no issue about that.
As I have already stated, there is no case of negligence made out against Clane General Hospital.
In these circumstances, I am satisfied that the plaintiff is entitled to recover her damages from Mr Moir, the first named defendant. No issue arises therefore in relation to any contribution or indemnity by the second and third named defendants who were not guilty of any negligence. Neither therefore does any issue as between the defendants and the third parties arise.
Accordingly, I will give judgment in favour of the plaintiff against the first named defendant in the sum of €80142.43.
Lynch v Binnacle Ltd
[2011] 2 I.L.R.M. 81Judgment delivered on the 9th day of March, 2011 by Denham J.
1. This is an appeal by Patrick J. Lynch, the plaintiff/appellant, referred to in this judgment as “the appellant”, from the judgment of the High Court (White J.) delivered on the 7th day of December, 2006, and from the order perfected on the 9th day of December, 2006, whereby the learned High Court judge dismissed the appellant’s claim.
2. The appellant is a yard man who was born on the 31st December 1957. He was employed by Binnacle Limited, trading as Cavan Co-op Mart, referred to in this judgment as “the respondent”, as a drover of cattle at its mart on the 24th October, 2003, when he suffered a direct kick to the scrotum by a Limousin bullock. The appellant was admitted to Cavan Hospital with swelling of his right testis. He suffered significant trauma to the scrotum and right testis, which gave rise to a haemorrhage, which caused damage to the right testicle.
3. The issue determined by the High Court was that of the liability, and that is the only issue before this Court.
4. At the trial counsel on behalf of the appellant claimed that the respondent was negligent in permitting a system of work which required the appellant to pass by a bullock in a small single pen in order to open a gate to allow the bullock access to the sales ring. Two other employees were absent at the time of the appellant’s injury. It was submitted that the respondent was vicariously liable for their negligence in absenting themselves from their proper work station, and that the respondent was responsible for failing to ensure that the system of work was safe and properly implemented.
5. The respondent denied liability and submitted that the appellant was guilty of contributory negligence in failing to exercise reasonable care for his own safety and in exposing himself to a risk of danger. It was submitted further that the appellant was the author of his own misfortune, that no negligence was attributable to the co-employees of the appellant, that there was a proper and appropriate system of work, that the circumstances of the case were unforeseeable for the employer, and that there was no negligence by the respondent.
6. The learned trial judge dismissed the appellant’s claim.
7. In giving judgment, White J. stated:-
“On the 24th October, 2003, the [appellant] who was employed by the [respondent] company at its mart in Cavan, sustained personal injuries when he was kicked in the groin by a bullock. At that time the [appellant] was aged 45 years and had considerable experience in the management and handling of cattle, having his own small holding whereon he maintained cattle, and having worked in marts on a regular basis from the age of 15.
On the day in question the [appellant] was performing a task that he performed regularly, namely, herding cattle from indoor, or covered, pen, in the mart yard of a central aisle to a dividing pen prior to their entering the sales ring. It is the [appellant’s] case that the system was one whereby a second drover was positioned at the dividing pens to herd the cattle into two individual pens, and a third drover was positioned in the vicinity of the weighbridge to release the cattle individually into that area to be weighed, prior to their entering the sales ring. Mr. Briody, the [appellant’s] agricultural expert, finds no fault with that system.
It is the [appellant’s] case that on the day in question Mr. Drury was the drover positioned in the vicinity of the dividing pen, and Mr. Forde was the drover positioned in the weighbridge area, and that in or about the same time both Mr. Forde and Mr. Drury absented themselves, and that for a period of approximately half-an-hour prior to his receiving his injury, the [appellant] performed their tasks as well as his own. This necessitated his entering the individual pens whilst it was occupied by a beast, and passing behind and along the side of the beast, to open the gate into the weighbridge.
It is his case that whilst so doing he received a kick to the groin from the bullock then occupying the pen. This was a risk or hazard that in the view of Mr. Briody ought to have been foreseen. On his own evidence, the [appellant] had been told both by Mr. Forde and by Mr. Drury of their respective intentions to absent themselves. However, he considered himself competent to carry on unaided, and he did not seek to have alternative drovers to replace Mr. Forde, and/or Mr. Drury.
The [appellant] did not call either Mr. Forde or Mr. Drury to give evidence on his behalf, and although the [appellant] asserted in a reply to a Notice of Particulars that his accident was witnessed by a Mr. Gumley, Mr. Gumley was not called to testify before me. Further, notwithstanding that he acknowledged there had been plenty of buyers in the vicinity, no eye witnesses had been called.
The [respondent] does not accept the veracity of the [appellant’s] account, and has called two mart employees, Mr. McNamara and Mr. Irwin, neither of whom witnessed the [appellant] sustain his injury, but both of them stated they had observed the [appellant] walking down the aisle some short distance from the weighbridge area in front of cattle returning to a holding pen. Mr. McNamara estimated that had this occurred a short number of minutes before he saw the [appellant] in distress and holding on to the bars of a pen in the vicinity of where he, Mr. McNamara had last observed him.
The [appellant], Mr. McNamara, and Mr. Irwin, all struck me as being cagey and evasive in the manner in which they answered questions put to them. In addition, I have question marks over the credibility of the [appellant] having regard to the fact that Ms. Fehily, the [appellant’s] occasional rehabilitation consultant, was apparently advised by the [appellant] that his work in the mart was part-time and ancillary to his running his own farm, where as Mr. Byrne, the [appellant’s] actuary, who was not furnished with any detail of farm income or expenditure, and prepared the figures solely on the basis of the [appellant’s] P60, furnished by reference to details supplied by the [respondent]. With more than a degree of hesitation, I am prepared to conclude that the [appellant] sustained his injury in the manner that he stated in evidence. That said, I cannot see any negligence on the part of the [respondent].
It has been argued that the conduct of Mr. Forde and Mr. Drury in absenting themselves was tortious and that the [respondent] was vicariously liable for such tortious acts. An employer is clearly vicariously liable for the tortious acts of its employees, but I really do not see anything tortious in the conduct of either Mr. Forde or Mr. Drury.
Is there any evidence from which I could conclude that the [respondent] knew, or ought to have known of the danger to which the [appellant] was exposed on the day in question? Evidence has been given before me that persons employed by the [respondent] absent themselves from time to time for short periods, but there is no evidence before me that this was a common or habitual feature or practise, nor is there any evidence that the [respondent] knew of or condoned employees temporarily absenting themselves from their posts.
There is nothing to suggest that either Mr. Forde or Mr. Drury sought to obtain the permission of the management to absent themselves on the day in question. Further, there is no evidence before me to suggest that the events of 24 October 2003, namely, two drovers absenting themselves at the same time, were anything other than unique.
Accordingly, I am driven to the conclusion that the [appellant] is the author of his own misfortune, and that there is no negligence on the part of the [respondent]. I should observe that I do not consider the [appellant’s] attitude towards returning to work to be reasonable. There is neither psychiatric nor psychological evidence before me to establish a fear of working with cattle. The [appellant] has never sought to return to his employment with the mart, notwithstanding that in his account to Ms. Fehily he has stated he is unsure whether he could cope there now. He believes he may have lost his confidence for being in such close proximity to so many animals, particularly in that type of environment. Yet, further on in his account to Ms. Fehily, he did indicate to her that he does assist his sister in the handling of her cattle, that he would check on the cattle for a short spell in winter. Once a day he would fodder a few cattle for her, and he would assist her moving them into cattle crushes for dosing, etc. However, he would not attempt to handle an animal now.
I should further add that there is nothing in the evidence to suggest that at any time the [appellant] had been denied a replacement drover, if he sought one. There is nothing to suggest that on the day in question there was a likelihood that he would not have received the cooperation and assistance of the management. Accordingly, the [appellant’s] case is dismissed.
Appeal
8. Eight specific grounds of appeal were filed. However, on the hearing of the appeal Mr. Lyons, S.C., counsel on behalf of the appellant, indicated that the net issues being raised were stated in grounds number two and three. These were:-
(ii) That the learned trial judge erred in law in finding that there was nothing tortious in the conduct of the appellant’s co-employees Mr. Forde and Mr. Drury in absenting themselves from their work stations at the time of and prior to the appellant sustaining his injury when there was uncontested evidence that a single employee system was unsafe.
(iii) That the learned trial judge erred in law in finding that the respondent was not vicariously liable for the tortious acts of its employees, namely Mr. Forde and Mr. Drury.
Submissions
9. Written submissions were filed by both parties to this appeal, and oral submissions were advanced by counsel for the parties.
10. Counsel for the appellant submitted that there was an unsafe system of work at the time the appellant was injured. As a result of Mr. Drury and Mr. Forde absenting themselves from their place of work, the appellant was injured. There was no evidence of any supervision to ensure that the safe system of work was maintained. Counsel submitted that if Mr. Forde or Mr. Drury or other employees were present there would have been no reason for the appellant to pass the bullock to open the gate to let it into the weighing scales area. Had another employee been there the gate could have been opened without the appellant exposing himself to risk. The safe system broke down when the other two employees left. He submitted that the act of the employees was the cause of the appellant’s injury – the absence of Mr. Forde especially from his post was the cause of the injury. If the other employee or employees had done their task correctly the appellant would not have had to expose himself to danger. It was submitted that the absence of Mr. Forde from his post was a failure to do what was an authorised act and accordingly that the respondent was vicariously liable. The opening of the gate was part of the employment. It was submitted that the respondent was profiting from the sale of the animal that kicked the appellant. In such circumstances, it is not unreasonable that the respondent would be liable for the failure of their work system and the absence of their employee from his post. It was submitted that the respondent should have ensured that the appellant was not obliged to move the animals on his own by ensuring that there were the appropriate number of persons at their posts at all relevant times. In this case Mr. Forde was specifically employed to open the gate into the weighbridge area, and he was absent at the time of the injury.
11. On behalf of the respondent it was submitted that it was not in breach of its duty at common law or pursuant to statute to provide a safe place and system of work. The respondent had addressed the foreseeable risks inherent in the work and had implemented methods and procedures to be followed in carrying out the work which were sufficient to protect the appellant. It was submitted that it was unforeseeable that both of the appellant’s two colleagues would absent themselves from their positions at the same time, with the knowledge of the appellant. Also, that it was unforeseeable that the appellant, despite his 30 years experience, would enter a pen (sized 8′ 6″ x 13′ 1” according to the appellant’s engineer) and get close behind the animal knowing the nature and form of the animal therein. It was the appellant who decided, when two colleagues had left, to continue with the processing of the animals and to enter the pen which was the proximate cause of the accident.
It was submitted that the respondent had a system of work which the appellant’s engineer accepted was safe per se. The respondent could not have foreseen that two men would absent themselves from their positions at the same time. The respondent could not have foreseen that the appellant, knowing that the two men were not in their positions, would take the two men’s work upon himself and would enter a pen and get so close behind an animal that the appellant put himself in a position to be kicked by that animal.
In all the circumstances, it was submitted that the appellant was the author of his own misfortune, that no negligence was attributable to the co-employees. There was a proper, suitable and appropriate system of work and that the circumstances of the case were unforeseeable for the respondent. Therefore there was no negligence attributable to the respondent and that the learned trial judge took all of the necessary factors into account in dismissing the appellant’s claim, and that the appeal should be dismissed.
Facts
12. There was conflicting evidence as to the circumstances of the injury of the appellant in the High Court. The learned High Court judge, albeit with “more than a degree of hesitation”, concluded that the appellant sustained his injury in the manner in which he described in his evidence. Consequently, in all the circumstances, and arising from the jurisprudence; see Hay v. O’Grady [1992] 1 I.R. 210; this Court is bound by those findings of fact.
13. The fact was that, in the absence of his two co-employees, the appellant entered a pen, went behind a Limousin bullock, and got kicked. He had been moving forward to open a gate in the pen which would have been opened by one of his co-employees on the other side if the co-employee had remained at his work.
14. The learned High Court judge found that the system of work established by the respondent, with three drovers, was safe. It was described in the report of Leonard Briody B.Eng. M.I.E.I. as:-
“The system in place at the moment is good. Once the animals are separated, they are directed in order of their number down through the chute. There is a rising gate in the centre of the chute. Any handling can be carried out with the operative outside the chute.
The system in place at the time was adequate provided there were two men present at all times. The first brings the animals from the holding pen and divides them into the single pen. Once the animal is driven into the single pen, the gate can be closed behind him. The second man can then open the exit gate from the other side. This eliminates the need for any person to enter into the pen with the single animal.”
15. Consequently, the evidence was that there was a safe system of work established by the respondent with three drovers. An important aspect of the safety was that the gate could be opened by one employee on the other side, so that there was no need for a drover to enter the pen with the bullock.
16. However, at the time when the appellant was kicked two employees had left their work and the appellant entered the pen to open the gate to move on the bullock.
17. In Mr. Briody’s report he stated:-
“Animals can be very excited and agitated while being manoeuvred around in marts. This can be reduced while they are kept in numbers. While they are isolated into singles, they can be quite nervous and unpredictable. It is very dangerous to enter into a pen with an isolated animal. [The appellant] was obliged to do this as there was nobody to open the gate the other side. This placed him in a position of danger. This system was unsafe.”
18. The learned trial judge held that the system was unsafe in the absence of the two co-employees.
19. Thus it is necessary to decide whether the respondent, the employer, was liable in the circumstances where two employees were absent from their work.
20. There was evidence of employees absenting themselves from their work. In evidence, Day 1, 5th December, 2006, at pages 28 and 29 of the transcript, the appellant responded to questions as follows:-
“Q. Was it usual that people would go off on business as you have described?
A. Yes, now and again maybe to get something to eat or something but the help was not there and that was it.
Q. When you were left on your own, can you just explain what you were doing, how you were managing to get cattle into the single pen?
A. I was dividing like and trying to get them in by one at a time. I had already put one in the pen along that wall, put the other lad in here, and I just came up behind him and he drew out [sic].”
21. Also, on the same day, at pages 42, 43 and 44 of the transcript, the evidence of the appellant was:-
“Q. You did not either say to the men or, particularly, to Mr. Forde, the second man to go; ‘listen, you cannot go because Mr. Drury has already gone’. You were quite happy for the two of them … (INTERJECTION)?
A. It was just I had done it all the days before on me own before too, I had done it before. He said that he would not be long anyway. He said he would be about five or ten minutes. I was gone when he came back, I was after getting the kick.
Q. Were you prepared to wait the five minutes until he … (INTERJECTION)?
A. He said he would not be long he was only going up to sell off the cow and calves above and he said he would be back in five or ten minutes sure.
Q. Did you intend to stop the work until he came back?
A. What?
Q. Did you decide you were going to stop doing work while the two men ahead of you were gone or were you going to continue on without them?
A. At the time he left you carry on.
Q. Were you happy that you could do this job without those two men there?
A. I was not too happy, what could I do, sure, there was no one else.
Q. You did not seem to have any fear or difficulty doing the job because you never said to either of the men; ‘listen, you have got to hang on, at least one of you has to hang on to open up the gates ahead of me’?
A. I thought I would just carry on. Glen Forde said he would be back in five or ten minutes and I just said; ‘I will carry on until you come back’.
Q. Without those two men up ahead that meant that you were going to have to pass by the animals and open up the gate ahead?
A. I was after putting in five or six bullocks before that and passing by them up and down to open the gates before.
Q. When the men were there you did not have to do that?
A. If the men were there I would not have to do it, no.
Q. No, but you were satisfied yourself, you were happy yourself and your experience with the animals, with the men gone that you were able, from your experience, to pass by an animal safely, is that right?
A. I thought I was.
Q. Because of you, yourself when you were asked about whether anybody saw the accident or came to you after the accident, you said there plenty of men around, is that right?
A. There was plenty of men lying up to the bars there, farmers, there was no workers.
Q. But, you certainly did not think to tell the two men with you to hold on and you certainly did not think it was necessary for you to go and get assistance from anywhere else?
A. There was no one else about to get any assistance off.
Q. How would you have know that, Mr. Lynch, because on your account you were perfectly happy to let the two men go and you did not make any enquiries about other assistance?
A. There was no one else to come to my assistance.
Q. You would not have known that because you did not go looking for them?
A. I knew there was the men, there was not much help about on the day anyway and that was it.
Q. There were plenty of other drovers?
A. No, there was not, there were three rings going that day.
Q. You simply cannot say that there would not have been help available to you because on your own account it never occurred to you to go and get help. You were quite happy for the men to go off and for you to do it on your own?
A. I knew Forde would be back in five or ten minutes and I just said I would carry on until he came back. If he had of come back it took some of the pressure off me, that is the truth.
Q. I suggest to you that you didn’t even get to the point where we can say that had you looked for assistance it would have been available. There would have been assistance there but it did not even occur to you to look at that stage, is that right?
A. There was no assistance to look for.”
22. Mr. James Irwin, an employee of the respondent, gave evidence that employees would leave their work positions. On Day 2, 6th December, 2006, at pages 15-16 of the transcript, it is stated:-
“Q. … Would it be fair to say in the course of the mart, employees would sometimes go off and sell heifers or animals of their own?
A. They might.
Q. Was that a common feature of the system of work in the mart?
A. It wouldn’t be a common feature to leave your job and go off to sell cattle?
Q. But it did happen?
A. But you’d have to tell someone you were going.
Q. Did it happen?
A. It could happen an odd time all right.
Q. Would you accept if it happened somebody should have been notified so that their space could have been filled in?
A. I suppose that would be right.
Q. Do you accept, Mr. Irwin, that the Limousin bullock is a feistier animal than the more domestic type of bullocks?
A. Yeah, they’d be a bit sharper all right.
Q. Would you accept if they are in a single pen, in other words when they are removed from the herd that they get even more agitated?
A. I suppose, some of them are steamy enough all right. I’ve seen a lot of them in my time.
Q. So if they were in the single pen the safe way to let them into where the weigh bridge is would be to have another man to open the gate where the weigh bridge is?
A. There’s generally a man there at the gate to open it.
Q. Is that not because that’s the safe way to do it?
A. That would be right, that’s what the man is there for to do at the gate.
Q. Would you accept if a man had to go into the single pen to open the gate in other words to let the animal into the weigh bridge, that that involves a certain amount of risk?
A. Well if you had only one in it, it wouldn’t be that bad.
Q. But there would be a certain element of risk; is that right?
A. Probably a bit of risk but it wouldn’t be that bad.”
23. Thus the evidence was that the respondent had established a safe system of work with three drovers. The system became unsafe when there was only one drover present. This analysis is relevant to the particular circumstances of the case and is not to be taken as a general rule. The case is fact dependent on the circumstances of the case.
Safe System of Work
24. The respondent had a duty to provide a safe system of work for the appellant. There was expert evidence that the system of work was safe when three drovers were present. However, when two drovers were absent the system became unsafe. When the appellant was injured the system was unsafe. In Kinsella v. Hammond Lane Industries Limited [1962] 96 ILTR 1 at p.4, McLoughlin J. stated:-
“If an accident causes injury to a workman and the accident results from a risk, of an unsafe system of work, against which the employer should have but did not take, reasonable precautions to guard, then the employer is liable for damages.”
25. In this case the facts are not in issue. Two employees left their work, thereby turning a safe system of work into an unsafe system. It is clear from the evidence that no provision was made for a situation where one, or two, drovers left their work. It is also clear from the evidence that the drovers were given no orders or directions as to what should happen in such circumstances. There was no evidence of supervision or of a procedure to be followed if one or more drovers left their work. The question then arises as to whether the respondent employer is vicariously liable.
Vicarious Liability
26. The traditional test, the Salmond test, was stated in Salmond’s The Law of Torts (1st ed., 1907) p.83:-
“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.
But a master … is liable even for the acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them.”
27. An employer may be vicariously liable for the wrongs of an employee, even when the employer may not have been at fault. Murnaghan J. pointed out in Byrne v. Ireland [1972] I.R. 241 at 280 (SC):-
“The doctrine is not invalidated by showing that the principal cannot commit the particular tort. It rests not on the notion of the principal’s wrong but on the duty of the principal to make good the damage done by his servants or agents in carrying on the principal’s affairs.”
28. In McMahon & Binchy’s Law of Torts, 3rd edn. (Butterworths Ireland Ltd., 2000), at paragraph 43.02, it is stated:-
“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”.”
29. In the recent Supreme Court decision of O’Keeffe v. Hickey [2009] 2 IR 302, the Court held that the State were not liable for actionable wrongs committed by the first named defendant in the action, who was a teacher, as there was no direct employment relationship between the teacher and the State. However, in several judgments there were discussions on vicarious liability, which were obiter dicta. The law at home and abroad was considered.
30. Having addressed the law in this jurisdiction, in Canada, and in the United Kingdom, Hardiman J. concluded that the law in Ireland is still that as stated in the Salmond test, and said any changes should be by legislation. Hardiman J. stated at paragraph 121:-
“I am not satisfied that it would be proper to ground vicarious liability on any of the theories expounded in the Canadian cases. I do not believe that the requirements of either fair compensation or deterrence justify the novel imposition of strict liability on an innocent employer for acts quite outside the well established Salmond test. It seems to me, as I have already said in this judgment, lacking in fundamental justice to impose a liability on a person simply because he is, or is thought to be, in a position to pay compensation. Equally, and perhaps even more obviously, it is wrong to impose the status of wrongdoer and the liability to pay compensation without fault for acts outside the scope of employment on the basis of pour encourager les autres.”
31. Fennelly J. also analysed cases from Canada and England and Wales . He took a different approach, and stated at paragraph 237:-
“The theoretical underpinnings of the doctrine of vicarious liability are much debated but no clear conclusion emerges. The result is that strict liability is imposed on an employer regardless of personal fault, which is especially striking when the acts are criminal and could not conceivably have been authorised even impliedly. Lord Steyn thought the imposition would be fair and just, if the necessary circumstances existed. Among the reasons suggested in the cases mentioned above is that the employer should bear the burden because he has “set the whole thing in motion” (Lord Brougham) or “has put the agent in his place…” (Willes J) or “is better able to make good any damage…” (Lord Pearce).
Also, commencing at paragraph 243, he stated:-
“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 & 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 v C.P. Security). 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, rightly in my view, held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.
The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J provides an excellent example of practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 D.L.R. (4th) 45, the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.”
32. It is not necessary to consider a wider analysis in this case. In this case it is not necessary to advance beyond the traditional statement of the law in the Salmond test. This case is fact specific. The circumstances were that two other employee drovers left their work. While this was unauthorised it clearly was known that drovers did absent themselves from work on occasions. There was no evidence of any system of supervision by the employer. The drovers were authorised to herd the cattle. It was improper to absent themselves. Their absence was connected with the act they were authorised to do. This was so connected with the acts that they were authorised to do, droving the cattle, as to result in an improper mode of doing the work, an unsafe system of work. If they had not absented themselves the appellant would not have been exposed to danger. In this case one of the absent drovers was specifically employed to open the gate to the weighbridge, and it was in the absence of his co-employees that the appellant moved behind the bullock to open the gate and so expose himself to danger.
33. In all the circumstances of the case I am satisfied that the respondent is liable for the actions of the two employees, the two drovers, who absented themselves from work and so transformed a safe system of work and caused an unsafe system of work, a situation where the appellant was exposed to risk, and to injury.
Contributory negligence
34. However, the appellant also has a degree of responsibility. He did not ask the two other drovers to remain at work, nor did he even ask one to remain. He did not ask anyone to help him. He did not stop processing the cattle. He sought no assistance. The appellant has been a drover for many years, he is skilled and experienced in droving cattle, and would know of the nature of cattle and of a Limousin bullock. He had been employed as a drover for many years at the mart. Also, he managed cattle on his own farm. Consequently he is experienced in droving cattle. In all the circumstances I am satisfied that the appellant would have a contributory negligence of 33%.
35. Consequently, I would allow the appeal on the issue of liability and remit the matter to the High Court for an assessment of damages.
JUDGMENT of Mr. Justice Fennelly delivered the 9th day of March 2011
1. On 24 October 2003, the plaintiff/appellant (I will call him “the appellant”) was employed as a yard man and drover at the cattle mart operated by the respondent in Cavan. He had been working at the mart for more than 30 years. He also had a small farm. He was forty five years of age at the date of the accident. He suffered a severe direct kick to the scrotum when he entered the single pen where a Limousin bullock was held.
2. White J on 7 December 2006 dismissed the appellant’s claim for damages against the respondent. This is his appeal.
3. The essence of the appellant’s claim at trial was that the respondent was negligent in operating a system of work which required the him to pass by a bullock from the rear in a small single pen in order to open a gate at the far or front end of the pen so as to allow the bullock to go into the sales ring.
4. On the day of the accident, three separate sales were taking place. The appellant was involved with bullocks in an area consisting of a number of pens divided by tubular steel railings. The cattle were initially enclosed in holding pens in groups of about 10. They were brought from there in groups to a dividing pen, which gave access to two single pens. One animal was driven into each of these single pens, which had an entrance gate at the rear, from the dividing pen. It also had an exit gate at the front, leading to the weighing scales and thence to the sales ring.
5. The system was that the appellant would drive one animal into each of the single pens and close the rear gate behind the animal. Another mart employee, Mr Jackie Drury, was placed at the exit gate from the pens. He would open each gate in turn so as to allow the animal onto the weighbridge before going into the sales ring. A third employee, Mr Ford, was placed at the far end of the weighbridge so as to allow each animal into the sales ring.
6. Some time prior to the appellant’s accident, Mr Drury told the appellant that he had to go off on business and Mr Ford said that he had to go to the other ring to sell his sucklers. The result was that the appellant was left on his own for about a half an hour. He was dividing the cattle and trying to get them in one by one. Because there was nobody to help him, he had to open the rear gate of the single pen and walk up behind and past the bullock in it in order to open the gate at the far end to allow the animal out and onto the weighbridge. As he was going by the particular Limousin bullock, the animal drew out and kicked him in the testicles.
7. In cross-examination, the appellant said that he was not too happy about having to do the job without the other two men but “there was no one else.” He said that there was no one about to get any assistance from.
8. Mr Leonard Briody, B. Eng., M.I.E.I. gave expert evidence on behalf of the appellant. In his description of the system, he said that there is a man in the neutral space between the weighing scales and the exit from the pens. He opens the weighing scales gates. He then closes the weighing scales gates and waits until the scales are free to go again. He said that cattle are more nervous when they are on their own, as distinct from being in a group. Limousin cattle, in particular, are excitable by nature. The safe method, having put an animal into a single pen, is to open the gate from the other side: the animal will go through a clear passage in front of him.
9. In Mr Briody’s view, it would be an un-safe system for the appellant to have to work with no other employee there to help him: “an animal enclosed on his own individually in a pen is excitable, unpredictable, so it would be unsafe to pass by it to go on to open the gate in front of that.” He added: “there should have been another employee ahead of the pen to open the exit gate and allow the animal out.”
10. When questioned by the trial judge, Mr Briody said that the system was a safe one, so long as both the other employees were there. Asked how the respondent could be faulted for the absence of Mr Drury and Mr Ford, he said that they could have ensured that persons did not absent themselves without permission and without a replacement being available.
11. The appellant’s evidence on liability was confined to that of himself supported by that of Mr Briody. The respondent called no expert evidence. Two witnesses were called by the respondent, neither of whom had seen the accident. Some of that evidence suggested that the appellant was in front of a number of bullocks being driven by one of those witnesses. Ultimately, their evidence was immaterial in view of the findings of the learned trial judge.
12. The learned trial judge said that “with more than a degree of hesitation” he was “prepared to conclude that the appellant sustained his injury in the manner that he stated in evidence.”
13. He gave the following reasons for rejecting the appellant’s claim:
“It has been argued that the conduct of Mr Ford and Mr Drury in absenting themselves was tortious and that the respondent was vicariously liable for such tortious acts. An employer is clearly vicariously liable for the tortious acts of its employees, but I really do not see anything tortious in the conduct of either Mr Ford or Mr Drury.
“Is there any evidence from which I could conclude that the respondent knew, or ought to have known of the danger to which the appellant was exposed on the day in question? Evidence has been given before me that persons employed by the respondent absent themselves from time to time for shorter periods, but there is no evidence before me that this was a common or habitual feature of practice, nor is there any evidence that the respondent knew of or condoned employees temporarily absenting in themselves from their posts.
“There is nothing to suggest that either Mr Ford or Mr Drury sought to obtain the permission of the management to absent themselves on the day in question. Further, there is no evidence before me to suggest that the events of 24 October 2003, namely, two drovers absenting themselves at the same time, were anything other than unique.
“Accordingly, I am driven to the conclusion that the appellant is the author of his own misfortune, and that there is no negligence on the part of the respondent.”
14. Mr Richard Lyons, Senior counsel, on behalf of the appellant submitted that the learned trial judge was incorrect in his conclusions that there was nothing tortious in the conduct of either Mr Ford or Mr Drury and/or that the respondent was not vicariously responsible for the acts of those two persons in absenting themselves from their posts.
15. This, indeed, is the issue to which the appeal reduces itself. On the evidence of Mr Briody, the system of work provided by the respondent was safe so long as the appellant had the assistance of the other two employees. On the other hand, without that assistance it was not a safe system. The respondent called no expert evidence to contradict this view. Indeed, it was not seriously contested. This does not mean that, as a matter of law, the operators of livestock marts are obliged generally to have any particular number of employees available to organise the leading of cattle into the sales ring. It merely means that that was the state of the evidence in this case.
16. At one point on the hearing of the appeal, Mr Joseph McGettigan, Senior Counsel, for the respondent sought to argue that an employee such as the appellant would always have to go into the pen with the animal and that that was normal practice. Thus there was nothing unusual about what happened in this case. There was, however, no such evidence in the court of trial. No such proposition was put to Mr Briody.
17. Thus, the case must be considered on the assumption that it was unsafe, i.e., it was dangerous for the appellant to be expected to move the animals towards the sales ring in the way he did. He had to open the gate at that back of the single pen, get the bullock into the pen, then go in himself, pass by the animal and open the gate at the far end. In this way, he was exposed to the hazard that the animal would kick him, which is what happened. If another employee had been available to open the exit gate to let the animal out towards the weighbridge, he would not have had to get into the pen at all and the accident would not have happened.
18. Since the decision of this court in Bradley v Córas Iompair Eireann [1976] I.R. 217 it has been established that, in cases of employers liability, negligence can be established in either of two ways: firstly, by establishing a departure from known and accepted standards in the particular trade or industry; secondly, by demonstrating a failing so obvious as to be unreasonable. Henchy J cited two principal authorities. In Morton v. William Dixon Ltd [1909] SC 807, Lord Dunedin pronounced what Henchy J considered to be “the most commonly cited statement of the necessary degree of proof” as follows:
“. . . I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either—to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or—to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.”
19. That prescription was, as Henchy J put it, “glossed” by Lord Normand in Paris v Stepney Borough Council [1951] AC 367 at 382:
“The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.”
20. The consequence of these principles is, in practice, that a plaintiff will rely on the evidence of an expert in order to establish the appropriate applicable standard. Mr Lyons cited the following passage from the judgment of Murray J, as he then was, in McSweeney v J. S. McCarthy LTD [Supreme Court unreported 28th January 2000]:
“It is well-established that an employer is under a common-law duty to provide his employees with a reasonably safe system of work. I know of no principle which exempts an employer from this duty only because their employee(s) are experienced, or know or ought to have known, of the dangers inherent in the work. Certainly, there are many factors which come into play in assessing whether, in the circumstances of the particular case, the system of work was reasonably safe or not. Among these are the experience of the workmen concerned, the level of danger involved, its complexity and so on.”
21. The employer is thus under a duty at common law to “provide his employees with a reasonably safe system of work.” This duty is laid directly on the employer and is non-delegable. As Hardiman J said in his judgment in O’Keeffe v Hickey [2009] 2 IR 302 at 325, the “distinction between a non-delegable duty of an employer and a vicarious liability of the employer for his employees is a subtle one.” I believe this distinction is at the root of the problem in this case. The learned trial judge looked for a distinct tortious act of the employees, Mr Drury and Mr Ford, with vicarious liability of the employer for that act as the sole basis of imposition of liability, but neglected to note that the duty to provide, using the expression of Murray J, a safe system of work is incumbent directly on the employer and is not capable of being delegated.
22. The authors of McMahon & Binchy, Law of Torts, (2nd ed. Butterworths, 1990 pars 18.33 state that “[s]ince Wilsons & Clyde Coal Ltd. v English [1938] A.C. it has been recognised that an employer’s duty of care to his or her employees is “non-delegable.””
23. Wilsons & Clyde Coal concerned an accident in a colliery in Scotland. The owner had delegated the management of the colliery to an agent. The respondents sought to rely on what is now the defunct defence of common employment to defeat the claim of a miner injured in their mine. Lord Macmillan explained the nature of the duty of an employer to his employees in the following terms at page 75:
“Now I take it to be settled law that the provision of a safe system of working in a colliery is an obligation of the owner of the colliery. He cannot divest himself of this duty, though he may – and, if it involves technical management and he is not himself technically qualified, must – perform it through the agency of an employee. It remains the owner’s obligation, and the agent whom the owner appoints to perform it performs it on the owner’s behalf. The owner remains vicariously responsible for the negligence of the person whom he has appointed to perform his obligation for him, and cannot escape liability by merely proving that he has appointed a competent agent. If the owner’s duty has not been performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible.”
24. O’Flaherty J in Connolly v Dundalk Urban District Council (unreported Supreme Court 18th November 1992, on appeal from the High Court judgment of O’Hanlon J reported at [1990] 2 I.R. 1) expressed the matter in the following terms:
“ The common law duty is to take reasonable steps to provide safe plant and a safe place of work – I speak of the place of work as being part of the employer’s property…… are such that they cannot be delegated to independent contractors so as to avoid the primary liability that falls on employers to make sure that these duties are carried out. These are responsibilities which cannot be put to one side; they must remain with the employer. They are owed to each individual employee.”
25. If the employer retains an independent contractor who, by his negligence, causes injury to the employee, “the employer retains a primary liability for the damage suffered though if he is not himself negligent he may obtain from the contractor a contribution to the damages and cots which he has to pay which will amount to a full indemnity.”
26. In the final analysis, I believe that the appellant is entitled to succeed in his appeal. This result can be reached alternatively through the route of vicarious liability or non–delegable duty. On the first basis, it can be said that it was the duty of the appellant’s fellow workers to assist him in the tasks of getting the animals from the pens into the sales ring. When they abandoned their task, they were acting within the course of their employment. They committed a breach of the duty of care owed to the appellant and the employer is vicariously responsible. I cannot see how this form of liability can be affected, as the trial judge appears to have thought, either by reason of the failure of the two men to seek permission or the fact that, as he believed, the absence of both men at the same time was unique. Alternatively, insofar as the otherwise safe system of work was not in operation on the day of the accident, the employer bears primary responsibility. The system was well described by the appellant and his engineer. The respondent called no evidence to explain how two men could leave their posts without permission or explanation. I would decide the primary issue of liability in favour of the appellant.
27. The respondent submits that, even assuming the respondent to have been liable, the appellant was guilty of contributory negligance. Two points, in particular, are made: firstly, that the appellant took inadequate care for his own safety by stepping into the single pen behind the Limousin bullock, thus exposing himself to the risk of being kicked; secondly, he should have sought assistance from other staff, rather than proceeding, as he did, to look after all the cattle going into the bullocks sale single-handed. In my view, there was contributory negligence on the part of the appellant. At the same time, it must be kept in mind that the prime duty to ensure that the system of work was safe rested on the respondent. The appellant was, in effect, continuing to keep the sales going for his employer. He also gave evidence, when pressed in cross-examination, that there was no other staff available. The appellant was an experienced handler of cattle and should have appreciated the risk of going into a pen alone with a single bullock. I would assess the contributory negligence at 33%.
28. I would remit the matter to the High Court to assess damages.
Sweeney v Ballinteer Community School
[2011] IEHC 131
JUDGMENT of Mr. Justice Herbert delivered the 24th day of March 2011
1. Between September 2005 and September 2006, a series of decisions affecting the plaintiff, approximately six in number were taken by Dr. C. as principal teacher of a large community college (hereinafter referred to as B.C.C.), in which the plaintiff was a senior member of the teaching staff. It is not for this Court in these proceedings to decide whether these decisions were correct or incorrect, justified or unjustified. A report of an Investigating Officer appointed pursuant to the provisions of the Code of Practice of March 2003, for “dealing with complaints of bullying and harassment of staff in community and comprehensive schools”, subscribed to and relied upon the plaintiff as a member of the Teachers Union of Ireland and, by the Board of Management of B.C.C. found that the plaintiff had not established that these decisions amounted to bullying or harassment of her by Dr. C.. This finding was sustained by an Appeal Board duly constituted under and in accordance with the terms of the Code of Procedure, on foot of the plaintiff’s appeal dated the 9th March, 2010, from the decision of the Investigating Officer. I have already ruled during the course of this action that to the extent that these decisions of Dr. C. were the subject of inquiry by the Investigating Officer and subsequently by the Appeal Board, this Court would not permit the plaintiff to challenge these findings in the instant case and, would accept the finding that these decisions taken by Dr. C. did not amount to bullying or harassment of the plaintiff.
2. However, these decisions and the facts surrounding them have a residual importance to the present case. The plaintiff did not accept these decisions of Dr. C. and, in each case, to re-echo her own words under cross examination, “went beyond and outside him”. In so doing she knew that she was taking, what she herself described, as a “drastic step”. She accepted in evidence that on the 2nd September, 2005, she told Dr. C. that unless she received what she believed was promised funding from B.C.C. for the second year of her four year degree course in counselling and psychotherapy, “she would do something drastic”. In cross examination the plaintiff denied that she had threatened to take sick leave for a year and insisted that by saying that she “would do something drastic” she meant that she would, “go beyond and outside him”.
3. It is not for this Court to decide in the present case whether or not the plaintiff was entitled to “go beyond and outside” Dr. C. in relation to these decisions or, even if such recourse existed whether she employed correct procedures in availing of it.
4. However, what is important in my judgment to the proper understanding and determination of this action is that these decisions of Dr. C. and the plaintiff’s reaction to them resulted, I find, in escalating mutual distrust between them as disagreement followed disagreement. Eventually, I find that the plaintiff came to believe that every action or omission on the part of Dr. C. whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.
5. These most regrettable circumstances caused her on the 4th October, 2006, to make a formal complaint of bullying and harassment through a firm of solicitors to the Rev. Chairman of the Board of Management of B.C.C.. I accept the evidence of the Rev. Chairman that this was the first he had heard of the allegation. He was very shocked and he took legal advice before acknowledging this letter by a letter dated the 16th October, 2006. He accepted that he had been aware since October 2005 that the plaintiff and Dr. C. had not been speaking to each other but he told the court that this was not at all unusual amongst teachers. I find that prior to this, in May and June 2006, three teachers on the staff of B.C.C. who were the then serving committee of the Teachers Union of Ireland in B.C.C. had attended a number of meetings with Dr. C. in which they had put to him the plaintiff’s concerns about his behaviour towards her. I am satisfied that at least one of these meetings Dr. C. behaved very aggressively towards a female teacher almost resulting in physical intervention by the two male teachers present. It is not necessary for the purpose of deciding the present action to determine whether Dr. C. is correct in his recollection that no express allegation of bullying or harassment by him of the plaintiff was raised at any of these meetings and accordingly that the contents of the letter of the 4th October, 2006, came as a very great surprise to him. By a letter dated the 7th November, 2006, Dr. C. denied these accusations and furnished particulars to the Board of Management of B.C.C. of what he alleged was bullying of him by the plaintiff.
6. Following a considerable exchange of views in correspondence, which on occasion became unnecessarily acrimonious, on the 13th November, 2006, a practising junior counsel with extensive experience and with an area of specialisation in the Law relating to Education in Ireland was appointed under the Code of Practice as “Investigating Officer” to inquire into these very serious complaints by the plaintiff of bullying and harassment on the part of the Dr. C.. In furnishing very belated details of her claim to the Investigating Officer and to Dr. C. in April 2007, the plaintiff claimed that she had been bullied and harassed by Dr. C. since 1992. However, at the hearing of the instant case, she accepted that this alleged behaviour on the part of Dr. C. only commenced in October 2005, following her appeal against the filling of four “A” posts of responsibility in B.C.C.. The Investigating Officer furnished her report on the 26th October, 2007 and a copy was furnished to the plaintiff.
7. At this point a few biographical details of the plaintiff and of her career are in order. The plaintiff was born on the 8th July, 1954. She separated from her spouse after, what I was informed, was for her a very traumatic marriage followed by a very difficult court separation. She has two children who are now young adults. She qualified as a teacher in 1975. After qualifying she taught in Dublin until 1979 and in Lisbon from 1979 to 1980. In 1980 she became a permanent member of the staff of B.C.C.. In 1993, Dr. C. was appointed principal of B.C.C.. In 1999 the plaintiff became Home-School Liaison Coordinator at B.C.C.. In the circumstances of this case I find it to be of considerable significance that the duties of the holder of this important and responsible post were spelled out in the “job description” as being, inter alia, “to consult, liaise and collaborate with the Principal” of B.C.C.. It is further of significance that the plaintiff told the court that she regarded these as merely guidelines and not necessarily as binding on her. In May 2002, the plaintiff was elected to and served a three year term as a member of the Board of Management of B.C.C., as one of two teacher representatives on that Board. In October 2004, she commenced a four year degree course in counselling and psychotherapy. This involved some limited absences from work. Over the years from 1980 onwards the plaintiff had, through evening courses, obtained diplomas in work related skills such as drugs awareness and personal development counselling. In September 2005, she was appointed learning support teacher at B.C.C.. I find that the evidence clearly establishes that up to this point the plaintiff was regarded by her colleagues at B.C.C. including Dr. C. as a most dedicated and progressive teacher who had done enormous work in extending the educational services provided by B.C.C. to deprived families and especially to children at risk.
8. Unfortunately, all of this came to an end in October 2005, when the plaintiff was unsuccessful in her application for one of four category “A” posts of responsibility within B.C.C.. I find that the plaintiff consider it most unjust that she should have been passed over for these posts having regard to her qualifications, her seniority and her record of exemplary and innovative service as Home-School Liaison Coordinator. She attributed her lack of success to the malign influence of Dr. C.. I accept the evidence that Dr. C. took no part whatever in the actual decision making and, had no vote in the selection of the successful candidates. I accept that he was present at the meetings of the Appointments Committee as secretary and to keep the record. However, there was compelling evidence before the court which I accept that even if Dr. C. took no part in the selection process he totally approved of the result, which he did not wish to see changed. He then made what can only be described as a series of calamitous blunders which would cause a reasonable observer, reasonably to conclude that he was determined that the plaintiff would not under any circumstances be awarded one of these category “A” posts of responsibility in B.C.C.:-
He advised the plaintiff incorrectly, though I am quite satisfied not maliciously, that she could not appeal this decision.
On the 9th November, 2005, a letter under his signature was sent congratulating the successful applicants when, I am satisfied he knew of the plaintiff’s appeal against the decision. I find his explanation for this action unconvincing. In a letter of equal date he apologised to the plaintiff, but then cast doubt on the sincerity of this apology by notifying these teachers of meetings involving “A” post issues on the 16th November, 2005, and the 23rd November, 2005.
He prevailed on a member of the teaching staff of B.C.C. who had been a friend of the plaintiff for more than twenty years to endeavour to persuade her to withdraw her appeal and to apply for a “B” category post which he indicated she could be assured of getting. This offer was very properly declined by the plaintiff. This other teacher, very moved, told the court that she realised in hindsight that she should not have done this as it would probably result, as it did in the loss of the plaintiff’s friendship.
9. I find on the evidence that the plaintiff, who with very good reason, regarded herself as a very senior and experienced teacher who had contributed greatly to the work of B.C.C. felt deeply hurt, disappointed, humiliated and betrayed by these actions of Dr. C.. I find that the plaintiff reacted by deciding to have as little personal contact with Dr. C. as possible. On the 30th October, 2005, the plaintiff appealed successfully against the procedure adopted in filling these “A” posts. The plaintiff was not successful in obtaining one of these posts in the subsequent re-selection process. For his part, I am satisfied, that Dr. C. perceived the plaintiff’s appeal against the “A” post appointments, which I am satisfied on the evidence was entirely unprecedented, as a further going “beyond and outside him” by the plaintiff and, as a challenge to his authority as Principal of B.C.C.. I find that his reaction was to behave thereafter towards the plaintiff in a hostile and dismissive manner and to disparage and marginalise her in the eyes of other teachers and members of the non teaching staff at B.C.C.. Unfortunately also, those colleagues whose promotions to “A” posts of responsibility was jeopardised by the plaintiff’s appeal and their friends on the teaching staff also ostracised the plaintiff.
10. Specific events of which the plaintiff complains and which occurred between October 2005 and September 2006, – the music examination incident; being urgently summoned to Dr. C.’s office during an inspection by an Inspector of the Department of Education; unwarranted requests to attend at the college office and, especially the forcing open of the door of her office and the removal to a different room of her effects including very confidential files in July 2006, during the summer vacation, – an action which elicited a letter of complaint from the college committee of the Teachers Union of Ireland dated the 11th December, 2006, – all served to worsen this totally undesirable state of affairs.
11. I do not accept the bona fides of the explanation offered for the admitted entry by one of the college caretakers, acting on the instructions of Dr. C., into the plaintiff’s office in B.C.C. by slipping the lock with a knife and, the moving of the contents of that office to the Home-School Liaison room. Absent any emergency, ie. fire or flood or, faced with an inability after reasonable and proper attempts to contact the plaintiff and a pressing need in the interests of the college to have the rooms interchanged, what was done on this occasion on the instructions of Dr. C. was high handed and inexcusable. The fact, which I accept, that the college caretaker moved everything very carefully and put everything in exactly the same position in the other room and did not open anything does not mitigate the enormity of this conduct in the least. Neither does the fact that the other teacher made no complaint or that the plaintiff was in any event returning to the Home-School Liaison room at the start of the new term.
12. In addition, the plaintiff in retrospect, now regarded the September 2005, problem in securing what she regarded as promised funding by B.C.C. for the academic costs of the second year of her degree course in counselling and psychotherapy, as yet a further example of harassment and bullying of her by Dr. C.. The Investigating Officer and the Appeal Board appointed and constituted in accordance with the terms of the Code of Procedure held that these events were not shown to have involved bullying and harassment as defined in the Code. It is there defined as a, “destructive and malicious attempt to target a particular individual”. I have already ruled that so far as these events are concerned the plaintiff is bound by these findings of the Investigating Officer and the Appeal Board which, if the issue had fallen to be determined by it, are in accordance with the evidence led before this Court.
13. As almost invariably occurs in such divisive situations some teaching staff members of B.C.C., some members of the Board of Management of B.C.C. and, even some persons from outside B.C.C. who in the course of their official duties became involved in these events, came to take a partisan stance in favour of the plaintiff or of Dr. C.. I found the evidence of a number of witnesses in this case to be unreliable and therefore unhelpful for this reason.
14. Between the 31st August, 2006 and the 27th March, 2007, the plaintiff was absent from work and furnished each week a medical certificate from her General Medical Practitioner, Dr. Philip McMahon, that she was suffering from work related stress. The quite extraordinary manner in which these certificates were furnished, – they were found by the clerical officers each Monday morning pushed under the door of the general office and not given or sent to the Deputy-Principal the person entitled to require and to receive them, – demonstrates in my judgment the continuing concern on the part of the plaintiff to avoid any risk of having to communicate personally with Dr. C., even to the extent of refusing to furnish these very important documents from her own perspective directly to management. The clerical officers further informed the court that each Monday morning a man or a woman would telephone the general office and state that the plaintiff would be absent from work that week. These callers never identified themselves to the clerical officers.
15. I find utterly indefensible, the manner in which the plaintiff chose to return to work at B.C.C. on the 28th March, 2007. She must have realised that this was bound to be seen by Dr. C. with every justification as a calculated and wholly deliberate insult to him as Principal of the college. I accept the evidence of the Rev. Chairman of the Board of Management of B.C.C. at the time, and, the evidence of the present Chairperson of the Board who between them have each 30 years experience in community/comprehensive schools and large private schools that the manner of the plaintiff‘s return to B.C.C. after an absence of 209 certified days was “unbelievable and totally unacceptable”. On the 27th March, 2007, the plaintiff’s present Solicitors acting, one must infer on her instructions or with her consent, sent by Email a letter to the Rev. Chairman of the Board of Management of B.C.C. at his private address notifying him of her intention to return to work on the following day. I accept the evidence of the addressee that he did not receive this communication until after the plaintiff had in fact returned to work. By a letter dated the 12th April, 2007, he wrote to the plaintiff’s Solicitors notifying them of this and asking why no notice of her intended return to the college had been given to Dr. C..
16. I find on the evidence of Dr. C., the former and the present chairpersons of the Board of Management of B.C.C. and the Deputy-Principal of B.C.C. that Dr. C. was entitled to receive at least some days advance notice that the plaintiff intended to return to work on the 28th March, 2007. I find that he was in fact entirely unaware that she had done so until they met accidentally in a corridor some 30 minutes, on her own evidence, after she had entered the college. On the balance of probabilities I am prepared to find that this extraordinary behaviour on the part of the plaintiff was not, as Dr. C. perceived it, a conscious and deliberate attempt on her part to insult him and to undermine his authority as Principal of the College but was a further indication of her anxiety about communicating with him. In my judgment her failure to notify D. C. in advance of her intention to return to work is not explained or excused by her having proffered a medical certificate of fitness to return to work and a further certificate from Dr. McMahon covering her absence from work in the previous week, to the Deputy-Principal in the staff room earlier that morning and, being told by him to give them in at the office later in the day. I am satisfied on the evidence that apart from her failure to give proper notice to Dr. C. the plaintiff’s return to work did not in fact give rise to any staffing or rescheduling difficulties in the college on that day.
17. I accept the plaintiff’s evidence that Dr. C. said to her, “What’s this, what are you doing here, who knows you are back, did you inform the Board of Management”. There can be no doubt but that Dr. C. was entitled to put these questions to the plaintiff and even though the manner in which they were put may have been lacking in diplomacy and somewhat brusque, nonetheless I do not consider that in the extraordinary circumstances it amounted to bullying or harassment of the plaintiff. I am prepared to accept the plaintiff’s evidence that Dr. C. spoke loudly on the occasion and even turned red in the face, even though I have had an opportunity of closely observing him in various circumstances throughout the trial of this action and I never noticed him becoming red in the face. However, there was evidence which I accept, from a number of teachers who as members of the Teachers Union of Ireland had occasion to become involved in these differences between Dr. C. and the plaintiff, that on a number of occasions in meetings with Dr. C. he behaved with considerable and in their opinion unwarranted aggression towards them. However, unlike the case of the plaintiff, these exchanges all appear to have ended amicably and with handshakes all around. Given the sudden unexpectedness of his encounter with the plaintiff, his immediate assumption that she was back at work and, his almost certain anger and resentment at not having been notified in advance by the plaintiff that she was coming back to work, I think it not all unlikely that Dr. C. spoke loudly and aggressively as the plaintiff alleges. I do not however, accept that he became physically aggressive and, “came right up against her” as she claimed in her evidence. I find this to be improbable. In describing the difficulties which arose in September 2005, in relation to the provisions of funding for the second year of her degree course, the plaintiff claimed that during a meeting with Dr. C. in his office, he had become aggressive, had flung down his keys, had jumped up from the table, red faced and with eyes blazing and had invaded her body space. However, she made no complaint about this alleged behaviour at the time. In fact she agreed that things were good with Dr. C. at that time. On the 28th March, 2007, the confrontation with Dr. C. had occurred in an open corridor in what appears to have been the most public part of the College, where everything occurring was capable of being observed by other teachers, non teaching staff, pupils or even parents of pupils. Regardless of how he may have felt on the occasion, I do not regard it as credible that Dr. C. if he had any thought at all for his position as Principal of B.C.C. would have behaved in such a place in the manner suggested by the plaintiff.
18. The plaintiff gave evidence that her answer to these questions by Dr. C. was to say “I am not talking to you unless someone else is present”. She explained this answer by telling the court that she needed another person to be present so that person could be a witness to what Dr. C. was saying and doing as he would later deny both. The plaintiff denied that this was a pre-meditated response on her part. I am unable to accept this. The evidence adduced in relation to other incidents after the 28th March, 2007, together with this incident satisfied me that the plaintiff returned to B.C.C. with a plan to avoid contact with Dr. C. wherever possible and where not possible to stand up to him and insist that any communication between them take place in the presence of some third party acceptable to her. I find it also of significance that this incident was immediately followed by a letter from the plaintiff’s solicitors to the Board of Management of B.C.C. dated the 30th March, 2007.
19. After this exchange the plaintiff told the court that she noticed that the door of the business studies room, about ten feet away, was open. She entered this room where a male colleague, (and one of the Teachers Union of Ireland College Committee), was teaching a class. She told the court that her purpose was to ask this teacher to watch while she went down the corridor as she felt stressed and afraid. I am unable to accept that this as the reason why the plaintiff went into her colleague’s room. I am satisfied that she went there, not as Dr. C. perceived it to convey negative information about him in front of a class, but pursuant to her plan to involve a third party immediately in all confrontations which she might have with Dr. C.. I am satisfied on the evidence that this colleague was discomfited by the plaintiff’s sudden intrusion into his class and was most anxious that she should not linger in the room. I accept this teacher’s evidence that the plaintiff was quivering and appeared to be fighting back tears and had said to him, “He is at me again, its happening again”. I also accept this teacher’s evidence that as they were speaking a knock came to the door and Dr. C. put his head into the room, beckoned this teacher over to the door and said to him “You cannot have people invading your room, you’d want to look after yourself”.
20. I am satisfied that this teacher, who had been a member of the Teachers Union of Ireland Committee that had spoken to Dr. C. in 2006, on behalf of the plaintiff, reasonably and rationally interpreted this statement by Dr. C. as a threat, that he would suffer some detriment for speaking to the plaintiff and not insisting that she leave his room immediately. I find that Dr. C. had full authority to circulate a notice to all the teachers that they should not enter a colleague’s classroom while a class was in progress. I am satisfied that on this occasion Dr. C. was referring solely to the plaintiff whom he disparagingly described as having “invaded” this other teacher’s classroom. I find that this intervention at this time and in these terms by Dr. C. was a destructive and malicious targeting of the plaintiff and amounted to bullying of the plaintiff within the definition of the March 2003 Code of Practice to which both Dr. C. and the plaintiff had subscribed and had invoked. But apart altogether from that definition in my judgment these words were hostile, offensive, unnecessary and disparaging to the plaintiff who was a very senior teacher in the college and would amount to “bullying” within the meaning of the 2002 (now 2007) Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying At Work, or even within the ordinary dictionary definition of that word. In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.
21. The plaintiff told the court and, this teacher accepts, that the plaintiff left his classroom and ran down the corridor and into the ladies restroom which was about twenty feet away. He said that Dr. C. was not in the corridor at this time. I accept the evidence of Dr. C. that he had gone back to his office and had telephoned the Deputy-Principal and the Rev. Chairman of the Board of Management to advise them of what had occurred. I accept his evidence that he did not know when the plaintiff had left the classroom or where she had gone. The plaintiff gave evidence that when she emerged from the ladies restroom Dr. C. was waiting outside the door. She said that she walked down the corridor and he followed. She then ran into the home-School Liaison room and into her office adjoining that room and locked the door. Using her mobile telephone she immediately contacted two female colleagues, who were the then teachers’ representatives on the Board of Management of B.C.C. When they arrived she unlocked the door and told them what had occurred.
22. I reject as utterly improbable this evidence of the plaintiff that Dr. C. had waited outside the ladies rest room for ten minutes until the plaintiff re-emerged. Dr. C. told the court that the first time this suggestion had been made was during the hearing of the action. I doubt very much if even the most crass and insensitive pupil would do such a thing. While in that room the plaintiff could not have known where Dr. C. was. I believe that it was entirely coincidental that Dr. C. was walking down the corridor when she re-emerged from the ladies restroom. Dr. C. is a married man. He is, as the Rev. former Chairman of the Board of Management very aptly described him, “the Managing Director” of a considerable enterprise. The door to the ladies restroom is on a corridor of the college along which all manner of persons pass and re-pass. It is in my view therefore, an indication of what Dr. Mohan described as “disturbed perceptions” that the plaintiff should make such an allegation against Dr. C..
23. Unfortunately, the matter did not end here. The plaintiff and one of the other teachers whom she had summoned gave evidence that after the plaintiff had unlocked the Home-School Liaison room door, they saw Dr. C. looking in the window of the room from the yard outside the window. I am satisfied that the evidence establishes that this window is approximately eight feet in length and eighteen inches in height. It is made of Perspex, approximately one third of an inch thick which over the ten years of its existence had become discoloured, yellowed and clouded. In addition this window is covered throughout its length by very old and dusty thick net curtains hung in place in the 1970s. Further, the window is generally very dusty on the outside. I am satisfied on the evidence that during daylight hours a person inside this room looking out could only see the shadow of someone outside the window looking in with not even sufficient outline definition to determine whether that person was male or female. If the plaintiff and this other teacher saw someone outside the window on this occasion, I am satisfied that because of the previous events they surmised that it was Dr. C.. I accept his evidence that he did not go out into this yard and look in the window of the Home-School Liaison room.
24. I am satisfied that the events of the 24th October, 2007, when the plaintiff was recorded in the college attendance book as having been absent from work when she was in fact attending an authorised “In-school training course” and ought to have been marked “In service” was a simple mistake. I am also satisfied on the evidence that this mistake was rapidly corrected and that the plaintiff suffered no financial loss as a result of the error. I do not accept that this incident was deliberately contrived by Dr. C. to bully or to harass the plaintiff.
25. On the 20th November, 2007, a further confrontation occurred between the plaintiff and Dr. C.. The parent of a pupil in the school was loudly abusing another teacher for disciplining her son, (he had told that teacher to “shut up”). I find on the evidence, particularly by reference to a contemporaneous note made by the teacher in question and to a letter written by her to the Board of Management and dated the 13th December, 2007, that Dr. C., who just happened to be in the vicinity, heard the noise and came into the classroom and tried to mediate between this teacher and the parent. I accept the evidence of the teacher that she then noticed the plaintiff, with whom she was not on speaking terms, standing in the doorway of the classroom. Dr. C. gave evidence, which I accept, that the plaintiff ought not to have been there at all. I accept the evidence of this teacher and of Dr. C. that he was insisting that the parent go with him to his office to discuss the matter. Instead this parent ran over to the plaintiff who asked her if she was all-right to which the plaintiff replied, “Do you see what’s happening here”. The plaintiff told the court that as Home-School Liaison Coordinator she considered that she had a duty to represent all disadvantaged parents. I accept the evidence of Dr. C. that the plaintiff then advised the parent not to go with Dr. C. to his office unless someone else also went and that she should write to the Board of Management of B.C.C. about the matter. I am satisfied on the evidence that the parent then said that she would not go with Dr. C. to his office unless the plaintiff accompanied her. This was not acceptable to Dr. C.. I find on the evidence that he went over to the plaintiff in the doorway and said to her, “I am giving you an order, I am directing you to return to your room”. The plaintiff returned to her room and the parent went with Dr. C. to his office. Later the teacher was sent for and the parent apologised to her and they shook hands. I find that the plaintiff had no reason to come to or to remain in the door of this teacher’s classroom and, had no right or duty to interfere as she did. Her advice to the parent in the circumstances was grossly irregular, offensive to Dr. C. and, a challenge to his authority as Principal of the College. I find that Dr. C. on this occasion acted properly and proportionally and entirely within the scope of his authority as Principal of B.C.C. I find that on this occasion he neither bullied nor harassed the plaintiff.
26. I find that the quite extraordinary events which occurred at B.C.C. on the 26th November, 2007, came about because the plaintiff was by this time in effect working entirely independently of Dr. C. and the Deputy-Principal of the College. An aspect of this unsatisfactory state of affairs was that the plaintiff was seeking to adhere to a time-table which she had operated prior to September 2005, or, to a new time-table prepared for her by another teacher, but which had not been approved by the Deputy-Principal or even seen by him. I find that the Deputy-Principal, whose sole prerogative it was to approve the daily time-table for the entire College was now also being avoided by the plaintiff who had come to regard him as a supporter of Dr. C.. I find that the Leaving Certificate class which was scheduled, by reference to the college time-table, prepared by the Deputy-Principal, to use the computer room in the College at the time was unable to enter this room because the door was locked and the room was occupied by the plaintiff who was teaching computer skills to three parents of pupils at the college as part of the Home-School Liaison programme. I do not consider it necessary to determine how to by whom the door came to be locked. One of the school caretakers gave evidence that and had unlocked the door to this room. He saw the plaintiff entering the room and he had informed her that by reference to the daily time-table which he had been given that morning by the Deputy-Principal that another class was due to use the room. This class of about fifteen pupils had then arrived. The caretaker said that he went and told the Deputy-Principal that there seemed to be a double booking and that this class was unable to access the computer room and was standing about in the corridor. Significantly, the Deputy-Principal told the court that he had said to Dr. C. that he would deal with the matter as it was his problem and, accompanied by the caretaker immediately went to the area. For some unstated or unexplained reason, Dr. C. had followed. There can be no doubt on the evidence that the door of the computer room was now locked and that the Deputy-Principal knocked loudly on the door which was not opened. As neither the Deputy-Principal nor Dr. C. had keys with them, the caretaker who had a key then unlocked the door to this classroom. I am satisfied that the Deputy-Principal entered the room first followed by Dr. C. I am satisfied on the evidence that they did not “bang” into the room shouting and waving their hands about as alleged by the plaintiff.
27. I find on the evidence, with particular reference to a contemporaneous note made by Dr. C. on the 26th November, 2007, that as soon as he and the Deputy-Principal entered the room, the plaintiff, who had been standing beside a parent at a computer console, turned towards them saying loudly, “Here’s the Principal and the Deputy-Principal coming to bully me”. I am satisfied that the Deputy-Principal then told the parents that there had been a misunderstanding over booking and asked them to turn off the computers and to leave the room as another class was waiting. The parents hesitated, – a wholly natural reaction in the circumstances, – and I accept that Dr. C. and the Deputy-Principal then moved around the room saying “Come on, come on, out you go, out you go”. The plaintiff then protested that they were properly in the room as she had booked it and she pointed to a time-table fixed to the back of the door. The Deputy-Principal told the court that he had examined this A-4 size document and that he had never seen or approved of it. The plaintiff then told the parents not to leave the room and to continue with their work. Dr. C. pointed out that he was the Principal of the College and insisted that they leave. One of the parents told the plaintiff to telephone the Department of Education and the plaintiff had replied that she did not know the number. The evidence clearly establishes that Dr. C. then said to this particular parent, “Turn off that computer or I will call the gardaí”. To this the parent responded, “Well get them then”. The plaintiff then used her mobile telephone to summon the two teachers who were then serving as Teachers Representatives on the Board of Management of B.C.C.. Dr. C. said to the plaintiff “Don’t get another teacher out of her class”. One of these ladies then arrived followed very shortly by the other. One of them suggested to Dr. C. that perhaps both groups could use the computer room simultaneously. Dr. C. would not agree to this proposal and I am satisfied that his reasons for not agreeing were rational and reasonable. The parents then left the computer room and went with the plaintiff to the Home-School Liaison room. One at least of the parents wrote to the Board of Management of B.C.C. about this incident.
28. In my judgment, the behaviour of Dr. C. towards the plaintiff on this occasion was oppressive and bullying. However extremely provocative the plaintiff’s own behaviour may have been and however much her actions may have been interfering with the smooth running of the college on the 26th November, 2007, she should not have been publicly disparaged and humiliated by Dr. C. in front of the parents present. Her countermanding his direction to the parents to leave the computer room may properly be regarded as a amounting to scandalous insubordination. However, in my view it did not cause the bullying but was a consequence of it. I find that there was no necessity at all for Dr. C. to have been in the room on this occasion. The Deputy-Principal could have dealt with the matter as a simple double booking of the computer room, something which the evidence showed had happened in the past. But having chosen to enter, Dr. C. should have disregarded, for the moment at least, the locked door and the plaintiff’s first remarks, explained the position to her with regard to the other class and asked her to inform the parents present of the difficulty and invite their cooperation in the matter. In the event, he treated her and the parents as trespassers and trouble makers. It is significant that Dr. C. told the court that he had felt slandered and undermined and that the plaintiff was embarking on a course of confrontation with the management. Dr. C. later telephoned the Rev. Chairman of the Board of Management who promised to raise the matter at the meeting of the Board scheduled to take place on the 12th December, 2007. If it was raised no action was taken. By letters dated the 28th November, 2007, and the 14th December, 2007, Dr. C. invited the plaintiff to meet him and the Deputy-Principal to discuss the incidents of the 20th November, 2007 and the 26th November, 2007. However, the plaintiff was unable to see her way to attending such a meeting insisting that the matter was something which required to be dealt at Board of Management level and involving her solicitors.
29. The evidence in this case establishes, in my judgment, that the plaintiff considered that she was entitled to very considerable autonomy in the running the Home-School Liaison Programme at B.C.C.. It was never suggested by anyone during the course of the hearing that the plaintiff was anything other than a skilled, experienced and dedicated teacher. However, she no longer communicated with Dr. C. the Principal of the College or with the Deputy-Principal of the College. Having retaken her place on the C.A.R.E. Team on the 17th April, 2007, on resuming her position as Home-School Liaison Coordinator, the plaintiff, following a number of disagreements with other members of the Team who had complained that she was dominating the proceedings at meetings and, because she said that the “body language” employed by other Team members was discouraging her at these meeting, ceased to attend the meetings or to report to the CARE Team after the 13th October, 2007. The effect of this was that from the 13th October, 2007, onwards nobody in authority in B.C.C. really knew where the plaintiff was or what she was doing during her working day. I am however satisfied that she was carrying out her duties as Home-School Liaison Co-Coordinator with the same dedication as she had always devoted to her work.
30. Dr. C. for good and sufficient reasons in my judgment, in September, 2007, had declined to permit the plaintiff to function in the college in the specific role of a Counsellor/Psychotherapist. He advised her that it was ultimately a matter to be decided by the Board of Management of B.C.C., but that he would feel obliged to argue against such an appointment. I do not accept the plaintiff’s contention that by permitting her to do the degree course, Dr. C. had thereby agreed that she would become a Counsellor in the College. Unfortunately, the plaintiff saw this as yet another form of bullying of her by Dr. C. I am quite satisfied that it was not. His decision was taken within the scope of his authority and, as I have already found for reasons which were both rational and reasonable.
31. I find that since her return to B.C.C. on the 28th March, 2007, the plaintiff had been continuously treated by Dr. C. in a bullying and aggressive manner. She had been marginalised and treated by him with unrelenting hostility and contempt. This “freezing out” as she aptly described it caused the plaintiff anxiety and stress. She found particularly hurtful and damaging the fact that when addressing others in her company Dr. C. totally ignored her as if she was not there at all. For anybody, but especially a woman and a senior teacher in the college, this was a particularly savage form of bullying, targeting her and clearly designed to break her will to disagree with any future decisions of his. In all his dealings with the plaintiff after the 28th March, 2007, I find that Dr. C. behaved like an offended tyrant and not as a fellow teacher and long time colleague of the plaintiff who had been appointed to the senior management position in the college. It is certainly not an excuse for this conduct on his part that the plaintiff’s own behaviour in this period, in general and towards him in particular, was inappropriate and, should not have been tolerated by the Board of Management of B.C.C..
32. I find, that at the end of November 2007, Dr. C. had started to become anxious and concerned because of his almost total lack of information as to where the plaintiff was or what she was doing during college hours in her capacity as Home-School Liaison Coordinator. I accept his evidence that he had come to be concerned that the college and its Board of Management might become involved in legal or other problems arising out of the plaintiffs’ unreported and unsanctioned activities as Home-School Liaison coordinator. I accept his evidence that he was particularly anxious because were such to occur he considered that he would be criticised or held responsible because as Principal of the college he had an obligation to the Board of Management of B.C.C. and to the Department of Education to ensure that all teachers were fully and properly discharging their duties. In these litigious and confrontational times I am satisfied that this was a genuine and reasonable concern on the part of Dr. C..
33. Considerable controversy arose during the hearing of this action as to whether a letter dated the 15th December, 2007, from Dr. C. to the Rev. Chairman of the Board of Management of B.C.C. setting out in detail the problems he was experiencing with the plaintiff in the day to day management of the college, was in fact written on that date or whether it was written later and backdated in order to justify his employment of a private investigator to carry our surveillance on the plaintiff. I am satisfied on the evidence, particularly by reference to the contemporaneous diary entry by the Rev, Chairman of the Board of Management that this letter was handed to him by Dr. C. in the college on Wednesday, 19th December, 2007. I am also satisfied that the Rev. Chairman adverted to this letter at the meeting of the Board of Management held on the 10th January, 2008, and, that incomplete transcripts of this letter on yellow paper were on the Board table at this meeting but were not actually distributed to the individual Board members. I am satisfied that there was a brief discussion about this letter at the meeting and that the Board decided to invite Dr. C. and the plaintiff to attend a meeting of the Board on the 17th January, 2008 and explain their respective difficulties. I am satisfied on the evidence that Dr. C. was willing to adopt this course. However, by a letter from her solicitors, the plaintiff indicated that she was not prepared to attend at such a meeting without her solicitor being present as she had concerns about the impartiality of the Board. This was unacceptable to the Board and the meeting did not take place and no further action was taken by the Board of Management.
34. The letter dated the 15th December, 2007, again came before the Board of Management of B.C.C. when a further letter of complaint dated the 2nd April 2008 from Dr. C., and which referred to his earlier letter of the 15th December, 2007, was placed before the Board of Management by its solicitors. However, by this time the matter had passed into the field of litigation and the Board of Management did not consider it further until the 1st October, 2008. On that date the Board of Management under its present Chairperson, having taken advice from the National Coordinator of Home-School Liaison Schemes wrote to the plaintiff seeking details of plans, records, identity of families visited and other matters. After further written requests the matter concluded with a letter from the solicitors for the plaintiff to the Board of Management stating that, “As soon as she is medically fit we will hold a consultation to deal with your queries”. This quite extraordinary situation was resolved by the plaintiff requesting and being granted permission by the Department of Education to take early retirement.
35. This problem as to the authenticity of the letter dated the 15th December, 2007, of the letter dated the 2nd April, 2008, and of the minutes of the meeting of the Board of Management on the 5th December, 2006, all arose because several different texts of these letters and of these minutes were disclosed and put in evidence before the court during the course of evidence. While I consider that the trenchant criticism and close scrutiny by Senior Counsel for the plaintiff of what appears to have been a quite extraordinary practice on the part of Dr. C. of adding to these documents after they had been sent or circulated was entirely justified, I am not satisfied that this was done with a deliberate intent to mislead, though in fact that could well have been the result. I accept that the partial transcription of the letter of the 15th December, 2007, on yellow paper was simply that and nothing more and that it is quite unnecessary to endeavour to discover why or by whom this was done. I am satisfied that this letter of the 15th December, 20007, was a wholly genuine attempt on the part of Dr. C. to persuade the Board of Management of B.C.C. to take action in the matter. I am equally satisfied that what they did, though well intentioned, was altogether too little and too late.
36. It is unnecessary for me to consider what other course Dr. C. might have adopted in these circumstances. I am satisfied that he had endeavoured but with no success to persuade the Inspectorate of the Department of Education to become involved. Suffice it to say that I find that the course which he did in fact choose to pursue was wholly inappropriate. I find that the decision of Dr. C. on the 10th January, 2008, to engage the services of a private investigator for four days in early February 2008, to carry out a covert surveillance on the plaintiff during college hours amounted to a most serious harassment of the plaintiff by him. The activities of this private investigator were brought to an end by the intervention of An Garda Síochána and by an Order of this Court (Laffoy J.) made at the suit of the plaintiff on the 10th April, 2008. I find that the plaintiff has not established on the balance of probabilities that on the 15th September, 2008, and the 16th September, 2008, Dr. C. in breach of the Order of this Court made on the 10th April, 2008, again himself followed the plaintiff.
37. I accept the evidence of the plaintiff that on a number of occasions in December 2007, in the course of her work as Home-School Liaison Coordinator at B.C.C. she found it necessary to drive to the two Resource Centres associated with the college. She claims that on a number of these occasions she was followed by Dr. C. in his motor car. I am satisfied that she reported her concerns to the two teacher representatives on the Board of Management of the B.C.C. and to the three college committee members of the Teachers Union of Ireland. They do not appear to have taken any action in the matter. One must acknowledge the right of Dr. C. as Principal of B.C.C. to visit these Resource Centres whenever he saw fit or the occasion required. Dr. C. denied that he followed the plaintiff on any occasion. There seems little doubt that on one occasion when the plaintiff claims Dr. C. had followed her to one such Resource Centre that he was in fact there to meet members of An Garda Síochána in relation to a break-in and serious vandalism at the centre. I am not satisfied that the plaintiff has discharged the onus on her of establishing on the balance of probabilities that she had been bullied by Dr. C. by being monitored and stalked by him in this fashion.
38. I am satisfied from the evidence and, from my observations of the plaintiff in giving evidence, that she is a lady well capable of asserting and defending what she considers to be her rights. Nonetheless she is still a woman and for a woman on her own to have two men following her about in a car during her working day must be been a truly terrifying experience for her. I unhesitatingly accept her evidence with respect to these events. It is necessary to give a brief summary of what I accept occurred on the 7th February, 2008, and some other days.
39. When the plaintiff drove away from her home on the 7th February, 2008, at 09.15 hours she felt that she was being followed by another motor car with two occupants. She took various evasive measures but this care remained following hers. She made a mobile telephone call to her daughter who appears to have taken the not unreasonable view that her mother was suffering from over vigilance due to work related stress and sought to reassure her. The plaintiff was not reassured and made a mobile telephone call to her brother and explained her fears to him. He advised her to keep a close watch on this car and to keep in contact with him. When the plaintiff parked her motor car at B.C.C. she observed this other car being parked nearby.
40. On entering the college the plaintiff told one of the teachers representatives on the Board of Management whom she felt she could trust, what was occurring. She then informed one of the clerical staff in the college office that she was going to one of the Resource Centres. On arrival at this Resource Centre the plaintiff noted the same motor car parked nearby. On concluding her business at the Resource Centre the plaintiff carried out about seven home visits as part of her duties as Home-School Liaison coordinator. This car continued to follow her even when the house being visited by the plaintiff was situated in a cul-de-sac.
41. The plaintiff noted that one of the men in this car was wearing a yellow coloured helmet of a type worn by builders. I accept the plaintiff’s evidence that she felt hunted, threatened and terrified. She made another mobile telephone call to her brother. Acting on his instructions she noted the registration number of the car that was following her and telephoned the emergency number and explained the situation to An Garda Síochána. Subsequent Garda intervention ascertained that the plaintiff was being followed a private investigator personally employed by Dr. C. without the knowledge or approval of the Rev. Chairman or of the Board of Management of B.C.C..
42. Despite being fully aware of the plaintiff’s long and totally uncharacteristic absences from work, in 2005, 2006 and 2007, medically certified on each occasion as being due to work related stress, which he knew, or would have known had he chosen to consider the matter, rendered the plaintiff very vulnerable to some form of mental illness such as nervous breakdown, Dr. C. arranged for this single lady to be stalked by a private investigator. I find that it was reasonably foreseeable by him, that if the plaintiff for whatever reason, accident, her own hyper vigilance or the ineptitude of the investigator, became aware of being pursued by an unknown male the effect upon her was likely to be so traumatic as to precipitate her, vulnerable as she was, into mental illness. It was not necessary that he should have been able to foresee the actual injury ultimately suffered by the plaintiff. For Dr. C. to have so acted, whether deliberately or with reckless indifference even though he was or ought to have been aware that mental harm to the plaintiff might result from his actions, amounted in my judgment to malicious targeting and harassment of the plaintiff. I find it significant that Dr. C. did not seek prior sanction from the Board of Management of B.C. C. for this extraordinary course of action. Even if he believed that members of the Board whom he considered to be well disposed towards the plaintiff might warn her of his intentions, he did not consult the Rev. Chairman of the Board as he had in the case of other difficulties with the plaintiff since the 28th March, 2007.
43. It is well established in this jurisdiction, both at common law and now by s. 15 of the Employment Equality Act 1998, that even if the Board of Management of B.C.C. did not know or could not reasonably have known (which was not the situation in the present case), that the plaintiff was being bullied and harassed by Dr. C. in the course of her work, it is still vicariously liable for the wrongful acts of Dr. C. once those acts were committed by him within the scope of his employment. If find that the Board of Management of B.C.C. did not authorise any of the acts of Dr. C. which I have held amounted to bullying or harassment of the plaintiff. The Board of Management of B.C.C. was not aware that Dr. C. had engaged the services of a private investigator to carry out covert surveillance of the plaintiff during the course of her work which I have found amounted to harassment of the plaintiff. However, all these acts took place during the official school day and, in my judgment were related to his work and were a wrongful way of performing the task which Dr. C. as principal of B.C.C. was authorised to perform, that is, to manage the business of the college. This involved ensuring that teachers were present and were carrying out their duties properly and responsibly. The Board of Management of B.C.C. decided at its meeting on the 6th March, 2008, having queried Dr. C. at length about the matter, that he had acted within the scope of his employment in engaging the services of the private investigator and in paying for those services out of a college fund administered by Dr. C. Therefore, the vicarious liability of the Board of Management of B.C.C. for the acts of Dr. C. is not an issue in this case. What are involved are issues of foreseeability, causation and damage.
44. On the 22nd December, 2006, Dr. McMahon who had been the plaintiff’s General Medical Practitioner since 1980 concluded that the plaintiff was then suffering from anxiety disorder: prior to this his diagnosis had always been one of stress due to being bullied at work. On the 1st September, 2006, he had advised the plaintiff to take time off from work to recover from this stress which he attributed to being bullied and harassed at work by Dr. C.. On the 27th March, 2007, Dr. McMahon was satisfied that the plaintiff was sufficiently recovered to return to work and he noted that she was very keen to do so. The plaintiff did return to work on the 28th March, 2007, and, despite the events described previously in this judgment, it was not until the 1st April, 2008, that she again felt a need to consult Dr. McMahon.
45. On this occasion the plaintiff complained of being very anxious, unable to sleep, distressed and worried. Her complaint was that she had been followed on her house visits as Home-School Liaison Coordinator by a private investigator engaged by Dr. C.. She felt very despondent that the Board of Management of B.C.C. would do nothing. On this occasion, Dr. McMahon formed the opinion that the plaintiff was bordering on depression. However, he did not prescribe anti-depressants or anti-anxiety medication. He told the court that this was his normal practice as he considered that drug therapy should always be the option of last resort because of the danger of a patient becoming drug dependent.
46. The plaintiff presented again on the 28th August, 2008, following the death of her father, to whom she was very close. On that occasion she told Dr. McMahon that she was, “still fighting for her work conditions and trying to reinstate her service to pupils and parents”. On the 2nd October, 2008, the plaintiff next visited Dr. McMahon. He found her depressed. She asked to be referred to Dr. Abbie Lane, a consultant psychiatrist. Dr. McMahon agreed. He told the court that since she had first become his patient in 1980 and despite a difficult marriage and a very traumatic separation, the plaintiff had never previously needed such a referral. Department of Education sick leave records show that Dr. McMahon issued medical certificates to the plaintiff on the following dates: 9th September, 2008, 10th September, 2008, 2nd October, 2008, 20th October, 2008, 27th October, 2008, 17th November, 2008, 24th November, 2008, 10th December, 2008, 22nd December, 2008, 9th January 2009, 19th January, 2009, 26th January, 2009, and finally on the 9th February, 2009.
47. In cross examination Dr. McMahon accepted that he had never diagnosed the plaintiff as suffering from clinical depression or from any form of psychological or psychiatric illness. He considered that the plaintiff was suffering from severe stress and anxiety which he considered to be a psychological crisis but not an illness. He considered that the plaintiff should see a consultant psychologist, but she asked to be referred to Dr. Lane. She was seen by Dr. Lane on the 10th November, 2008. Dr. McMahon told the court that he had last seen the plaintiff on the 4th December, 2008. On that occasion she had told him that she had decided that resuming work was out of the question. He said that he was not at all in favour of this. He hoped that the plaintiff would resume her work as a teacher which she obviously enjoyed and he tried to persuade her to this effect. He considered that it was too early for her to retire and that it was not in the best interests of her own psychological welfare to retire. He felt that on this occasion she could overcome her problems just as she had done in relation to the very traumatic separation in 1999/2000.
48. Dr. Lane, a consultant psychiatrist, told the court that she saw the plaintiff for the first time on the 10th November, 2008, on referral from Dr. McMahon. On presentation, the plaintiff appeared stressed and pale and wept frequently during the consultation. The plaintiff complained of down mood present all day every day for more than two weeks, lack of interest in or enjoyment of everyday things, disturbed sleep, loss of appetite, constant fatigue, lack of motivation and, poor concentration. Dr. Lane concluded that the plaintiff was suffering from severe clinical depression with an overlay to post traumatic stress disorder. Because of the plaintiff’s description of feeling hopeless and worthless, Dr. Lane considered that there was a possible risk of self-harm and endeavoured, unsuccessfully, to persuade the plaintiff to undergo a period of in-patient treatment. She therefore prescribed anti-depressant and anti-anxiety medication, – Lustral, – at the maximum permitted dosage.
49. Dr. Lane reviewed the patient at two monthly intervals thereafter. By March 2009, she noted that the plaintiff’s mood had improved somewhat, but that she was still anxious, depressed and tearful. Dr. Lane considered that the plaintiff was just about able to cope with the normal chores of day to day living and was not fit to return to work. Throughout 2009, Dr. Lane provided the plaintiff with cognitive behaviour therapy. By June 2010, Dr. Lane was satisfied that the plaintiff was considerably recovered: her mood was up, she had recovered motivation and interest in things, her enjoyment of life had returned and she felt more hopeful. However, she remained anxious at times and was subject to occasional flashbacks and nightmares of persons following her. Dr. Lane concluded that the plaintiff was no longer depressed and was able to go out on her own without being overanxious or over vigilant. At this time Dr. Lane considered that the plaintiff was physically and mentally able to return to work at B.C.C. but she remained, very concerned that the plaintiff might become re-traumatised by a classroom incident, a difficulty with a parent or, continuing friction with the college administration or with colleagues on the teaching staff.
50. Dr. Lane produced in evidence the referral letter dated the 3rd October, 2008, sent to her by Dr. McMahon. This letter referred to bullying and harassment at work and to the fact that the plaintiff’s father had died recently. Dr. McMahon also referred to the fact that on the previous day he had detected what he considered to be signs of a depressive illness. It was Dr. Lane’s expert opinion, which I accept, that given the plaintiff’s history, the death of her father was not the cause her symptoms, though it probably added to her low mood. The fact that these symptoms had continued even though the plaintiff was away from the work environment since the 1st October, 2008, was an indication to Dr. Lane of the severity of the plaintiff’s depressive illness. I am satisfied that Dr. Lane was not shaken in her opinion that there was no other reasonable or rational explanation for the plaintiff’s illness in her history, other than the alleged bullying and harassment. Dr. Lane told the court that the plaintiff had informed her that on the 20th October, 2007, the Investigating Officer under the Code of Procedure had found that she had not been harassed or bullied at work in relation to the matters then at issue. The plaintiff told Dr. Lane that she did not accept this conclusion and that the bullying and harassment by Dr. C. had continued despite the investigation. Dr. Lane conceded that the investigation and its outcome would have had a traumatic effect on the plaintiff. However, she stated that she was quite satisfied by reference to the entire history that this was not what had caused the plaintiff’s illness: in her opinion that was the workplace situation. Dr. Lane accepted that prior to 1st April, 2008, there had been no diagnosis of depression in the plaintiff’s case. She told the court that constant stress and anxiety can lead to depression and that when she saw the plaintiff for the first time on the 10th November, 2008, she had no doubt whatever but that the plaintiff was then suffering from a psychiatric illness, – serious depression.
51. Dr. Lane told the court that in order to form a diagnosis that the plaintiff was suffering from severe depressive illness on the 10th November, 2008, she had to be satisfied that her symptoms had commenced no later than two weeks prior to the date of the consultation. However, given the severity of the plaintiff’s illness on that date she was satisfied that the plaintiff must have been suffering from depression for a very considerable time before that, probably for as long as two years. I find it very significant that on the 1st April, 2008, – almost five moths before her father died on the 25th August, 2008, – the plaintiff was diagnosed by Dr. McMahon as “bordering on depression this time”. Dr. Lane stated that she was aware that the plaintiff had applied to the Department of Education in 2009, for leave to retire on the basis of, “permanent ill health”. Dr. Lane stated that she was not aware that Dr. McMahon had strongly urged the plaintiff not to retire. Dr. Lane told the court that she did not have any role whatever in the plaintiff’s decision to retire.
52. Dr. Lane told the court that she was satisfied that the plaintiff was also suffering from post traumatic stress disorder. She said that the causative trauma was the threat to the plaintiff’s career and therefore her security, the feeling of helplessness in the face of the continuous bullying and harassment and, the profound threat to her core values. Dr. Lane considered that the accumulation of these matters would be sufficiently traumatic to induce post traumatic stress disorder in the plaintiff. In the plaintiff’s case she felt that all the classic symptoms of post traumatic stress disorder had become evident within the expected period: the plaintiff had intrusive memories of the events, nightmares and flashbacks, she was hyper aroused and tense which manifested itself especially in the form of hyper vigilance and hyper alertness, she avoided returning to the College, going out on her own, or anything which reminded her of the trigger events. However, Dr. Lane did not give evidence that the plaintiff had suffered a psychiatric injury because of an immediate fear for her own safety consequent on being followed by the two men. Dr. Lane admitted that she did not seek copies of Dr. McMahon’s’ clinical notes. I accept her explanation that she would not do so unless the plaintiff had a history of mental problems in the past. Dr. McMahon told the court without any reservation or equivocation that the plaintiff, in his medical opinion had not suffered from any psychiatric injury while she was under his care. No medical data studies or literature was advanced in support of the contention that a feeling of helplessness in the face of a perceived threat, not to one’s personal safety but to one’s career and not from a single traumatic event but from an accumulation of events over a period of nineteen months would be a sufficient trauma to give rise to post traumatic stress disorder.
53. It is significant that in the work, “Understanding Mental Health (Blackhall Publishing: 2006), which she produced in evidence by her, Dr. Lane at chap. 2, p. 27 states in respect of “post traumatic stress”, that:-
“This is a common condition which occurs some weeks after a person has been involved in or has witnessed a traumatic event. Examples include being involved in a road traffic accident, being held at gunpoint, being involved in a fire or an explosion. Symptoms come on between two and six weeks following the trauma . . . (etc.).”
54. In the circumstances and having regard to the decision this Court in Mullally v. Bus Éireann [1992] I.L.R.M. 722 and of the Supreme Court in Kelly v. Hennessy [1996] 1 I.L.R.M. 312 I find that the plaintiff has not established, – the onus of proof being on her, – on the balance of probabilities, that she suffered post traumatic stress disorder as a consequence of bullying or harassment by Dr. C..
55. Dr. Mohan a consultant forensic psychiatrist, who gave evidence in the case for the defendant, told the court that he had a consultation with the plaintiff on the 2nd December, 2008, and that he had also considered the following documents: the Report of the Investigating Officer dated the 26th October, 2007, the Pleadings in the instant case, the Clinical Records of Dr. McMahon, Dr. Lane’s Report, the Department of Education Attendance records relating to the plaintiff and, the views of Dr. C. and of his Solicitors. He accepted that the plaintiff did not have a personality disorder. However, he considered that she demonstrated an impaired judgment and a distorted interpretation of work place events, coupled with a tenacious sense of personal rights out of keeping with reality and, an excessive regard for her contribution to B.C.C.. Dr. Mohan agreed that he had come to this opinion principally from his analysis of the report by the Investigating Officer.
56. Dr. Mohan accepted that stress and anxiety, such as that reported by Dr. McMahon in his clinical notes relating to the plaintiff could be a significant causative factor in the onset of depression. However, he felt that the fact that the plaintiff had continued to work after the incident involving the private investigator in early February 2008, until the 1st October, 2008, with only very few days absent was, more consistent with stress than with clinical depression. Dr. Mohan told the court that if the plaintiff was in fact suffering from severe depressive illness on the 10th November, 20008, as was the opinion of Dr. Lane, he considered that evidence of the onset of that illness would have to be sought at least six months prior to that date, but not as far back as two years. He noted that the plaintiff had received no medical treatment for depression prior to the 10th November, 2008. Dr. Mohan considered that the very considerable emotional stress and feeling of victimisation reflected in Dr. McMahon’s clinical records, compounded by feelings of disappointment and anger on the 26th October, 2007, following receipt of the Investigating Officer’s report, followed by the death of her father, to whom she was very close, on the 25th August, 2008, could be capable of causing the plaintiff to become depressed. However, he considered that there was no evidence on the medical record of severe and persistent symptoms, at any rate prior to the 1st April, 2008. It was his opinion that the plaintiff was suffering from anxiety and stress as a normal response to the pressures and problems in the work place.
57. I find on the balance of probabilities that the plaintiff has discharged the onus on her of establishing that she did suffer a psychiatric illness, in the form of clinical depression and, that a direct causative connection existed between that injury and the continuous bullying and harassment of her by Dr. C. from the 28th March, 2007, onwards. The evidence established that Dr. McMahon considered that the plaintiff was fit to return to work on the 28th March 2007, and he furnished a medical certificate to that effect. I accept his evidence that the plaintiff was herself most anxious to return to work at that time. On the 1st April, 2008, Dr. McMahon found the plaintiff to be, “bordering on depression”. This was almost five months before her father died. Undoubtedly she continued to work, but it is not at all unusual for persons suffering from depression to continue to work and from what I observed of this plaintiff, I am satisfied that this would be entirely in keeping with her character. I am prepared to infer that the distress which the plaintiff experienced following the death of her father as noted by Dr. McMahon in his clinical notes for the 25th August, 2008, may have temporarily lowered her mood further, if it was already low. However, I am satisfied from her personal and medical history and from the evidence of Dr. McMahon based upon his unique insight into her character and psyche, as her general medical practitioner for over 30 years, that this bereavement did not cause or materially contribute to the onset of her depression which was noted for the first time by Dr. McMahon a few weeks later on the 2nd October, 2008.
58. Dr. Lane treated the plaintiff for depressive illness from the 10th November, 2008, to June 2010, by which time she considered the plaintiff was fit to return to work. Dr. McMahon agreed and Dr. Mohan accepted that the onset of depressive illness would be consistent with the sort of work place problems which the plaintiff claimed she was experiencing at the hands of Dr. C.. There was no evidence at all to suggest that the plaintiff had a pre disposition to depression even if an older sibling suffered from that illness. The evidence of Dr. McMahon, in my judgment, entirely disposes of that suggestion. I find that Dr. Lane is correct in her conclusion that apart from the constant stress and anxiety suffered by the plaintiff between the 28th March, 2007 and the 7th February, 2008, culminating in the traumatic events of the 7th February, 2008, there is nothing in the plaintiff’s life to otherwise account for the clinical depression suffered her. It was not suggested during the course of the action that the plaintiff was feigning illness or exaggerating her symptoms.
59. Whatever would have been the position in 2005 or 2006, I am satisfied, and I so find, that on the 28th March, 2007, Dr. C. knew or ought reasonably to have foreseen that any bullying or harassment of the plaintiff carried a “materially substantial risk” of the plaintiff suffering a mental injury as a result and could by the exercise by the reasonable care have avoided that result. Dr. C. and the Board of Management of B.C.C. knew that the plaintiff had been absent from work for a number of weeks in November and December 2005, certified by Dr. McMahon as suffering from work related stress. They knew that between the 31st August, 2006 and the 27th March, 2007, the plaintiff had been certified by Dr. McMahon as unfit for work due to work related stress. In my judgment this history of occupational stress put Dr. C. on notice that the plaintiff was vulnerable to some form of mental injury if she was subjected to further stress arising from such as would inevitably follow from bullying or harassment at work. Dr. C., despite the poor start on the 28th March, 2007, could have apologised to the plaintiff for his outburst, welcomed her back and sought to effect a reconciliation between them or if that was not possible, to at least try to work out a modus viviendi with her. If it proved impossible to re-establish even a professional working relationship with the plaintiff, then Dr. C. should have immediately called on the Board of Management of B.C.C. to intervene and to insist that the plaintiff cooperated fully with him in carrying out her duties as Home-School Liaison Coordinator. This is something which a reasonable and prudent manager would have done in the circumstances. Dr. C. ought reasonably to have known in commissioning the surveillance, that if the plaintiff became aware that she was being followed about in public by two unknown men and became frightened as a result, there was a clear and substantial risk that she would suffer a nervous breakdown, post traumatic stress disorder, depression, illusional disorder or some other form of mental illness.
60. Apart from being vicariously liable for the actions of Dr. C. the Board of Management of B.C.C. owed the plaintiff a direct duty of care, as her employer, both at common law band by virtue of the provisions of the Safety Health and Welfare at Work Act 2005, to take reasonable care to prevent her suffering mental injury in the workplace as a result of being harassed or bullied by other employees if they knew or ought to have known that such was occurring. (Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349). I am satisfied that in the post 28th March, 2007, period the Board of Management of B.C.C. ought to have known, from correspondence from the plaintiff’s solicitors, correspondence from the parents of pupils in the college and, from the personal knowledge of several members of the Board involved in the day to day business of the college that the plaintiff was continuing to claim that she was being victimised, bullied and harassed by Dr. C.. For the same reasons to which I have adverted in the case of Dr. C., the Board of Management ought reasonably to have foreseen that there was a materially serious risk that the plaintiff would suffer some form of mental illness if the situation between her and Dr. C. was permitted to continue.
61. Despite this, the Board of Management of B.C.C. took no reasonable or proper steps as the plaintiff’s employer to address the situation. Following receipt of the letter dated the 15th December, 2007, from Dr. C. the Board of Management following its meeting on the 10th January, 2008, did invite Dr. C. and the plaintiff to meet the Board on the 17th January, 2008, and set out their respective grievances. I am prepared to accept the evidence of the Rev. former Chairman and of the current Chairperson of the Board of Management that the Board was not aware of the full extent of the problems existing and that neither the teacher’s representatives nor the Union representatives on the Board had formally raised the matter before the Board. Nonetheless, between April 2007 and the 10th October, 2008, the Board was aware that the plaintiff and Dr. C. were not communicating with each other, that confrontations were taking place between them and that this was essentially the same sort of situation which had formed the basis for the plaintiff’s complaint of bullying and harassment by Dr. C. on the 4th October, 2006. However, was apart from the single offer to meet the parties on the 17th January, 2008, the Board of Management took no positive action whatsoever to deal with the situation which the Deputy Principal in evidence described as “catastrophic, totally strange, unusual and unreal”. I find that this failure of the Board of Management to act as a reasonably careful and prudent employer would have acted permitted the continuous bullying and harassment of the plaintiff by Dr. C. to continue to the point where the plaintiff began to suffer clinical depression. Dr. C. told the court that he was driven by desperation to engage the services of the private investigator because of the failure to the Board of Management and the Department of Education to take any action in the matter. The evidence of the Rev. former Chairman of the Board of Management and the evidence of the current Chairperson of the Board suggests that the reason why the Board did not act prior to the 10th October, 2008, was that the procedures under the Code of Procedure were slow and complex and, “the lawyers had turned the whole affair into a procedural wrangle and a legal morass”. Certainly the correspondence admitted or proved in evidence in the course of the trial might afford a reasonable basis for that belief. However, this does not provide a reasonable or proper ground for taking no action at all for ten months. In my judgment the Board of Management of B.C.C. was in breach also of the direct duty of care, which, as her employer, it owed the plaintiff.
62. In my judgment the evidence establishes that the plaintiff was subjected to deliberate and continuous bullying and harassment by Dr. C. as a direct consequence of which she suffered mental injury in the form of clinical depression, a result which was reasonably foreseeable. I am satisfied that from some short time after the 7th February, 2008, until June 2010, the plaintiff suffered a serious depressive illness. She has now recovered from this, but I accept Dr. Lane’s evidence that she remains at present anxious at times, is subject to occasional flashbacks and nightmares of persons following her and is vulnerable to becoming re-traumatised by any form of significant confrontation. However, neither Dr. Lane nor Dr. McMahon advised the plaintiff not to return to work or to take early retirement from teaching. On the contrary, Dr. McMahon strongly advised her against such a course. There was no evidence which would lead me to conclude that it would be irrational and unreasonable to expect the plaintiff to continue to serve as Home-School Liaison Coordinator or in some other teaching capacity in B.C.C.. She did so between the 7th February, 2008 and the 1st October, 2008 and with very few days absent from work. There is nothing I can see on the facts in this case which would in any way inhibit a simple and just resolution of the difficulties which have arisen between Dr. C. and the plaintiff which would enable them to continue to work efficiently together as professional colleagues, even if not as friends. The evidence in this case clearly established that it is quite usual for some teachers in large schools and colleges not to be on speaking terms with other teachers in the same school or college.
63. The court has already held that the defendants were negligent in causing or permitting the plaintiff to be harried, watched and beset in the course of her employment with the Board of Management of B.C.C.. I find that the same acts or omissions may form a basis for an action for breach of an implied term of contract. In Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57, Sellers L.J. delivering the judgment of the Court of Appeal held at p. 66 as follows:-
“It is perhaps sufficient if I say that, in my view, this question is a somewhat artificial one. The existence of the duty arising out of the relationship between employer and employed was recognised by the law without the institution of an analytical inquiry whether the duty was in essence contractual or tortious. What mattered was that the duty was there. A duty may exist by contract, express or implied. Since, in any event, the duty in question is one which exists by imputation or implication of law and not by virtue of any express negotiation between the parties, I should be inclined to say that there is no real distinction between the two possible sources of obligation. But it is certainly, I think, as much contractual as tortious. Since in modern times the relationship between master and servant, between employer and employed, is inherently one of contract, it seems to me entirely correct to attribute the duties which arise from that relationship to implied contract. It is a familiar position in our law that the same wrongful act may be made the subject of an action either in contract or in tort at the election of the claimant, and, although the course chosen may produce certain incidental consequences which would not have followed had the other course been adopted, it is a mistake to regard the two kinds of liability as themselves necessarily exclusive of each other.”
64. In the instant case I think it will be found that the plaintiff elected to present her case in tort. In these circumstances I feel that it can only lead to confusion to deal further with implied contractual terms and remedies for breach of contract.
65. In my opinion the actions of Dr. C. in this case do not amount to what Griffin J. described in Conway v. I.N.T.O. [1991] 2 I.R. 305 at 323 as, “wilful and conscious wrongdoing in contumelious disregard of another’s rights”. In such circumstances the court is not disposed to awarding exemplary, otherwise punitive damages to the plaintiff. In the same case Finlay C.J. defined “aggravated damages” as compensatory damages increased by reason of:-
“(a) The manner in which the wrong was committed involving such elements as oppressiveness, arrogance or outrage or,
(b) Conduct of the wrongdoer after the commission of the wrong: refusal to apologise or ameliorate the harm done, or threatening to repeat the wrong, or
(c) The conduct of the wrongdoer or his representatives in defending the claim up to and including the trial of the action.”
66. In my judgment the behaviour of Dr. C., towards the plaintiff in the present case was oppressive and arrogant and, I find caused her additional hurt and insult. I therefore consider that this is an appropriate for the court to mark its abhorrence of such conduct by awarding aggravated damages to the plaintiff. The court will therefore award damages to the plaintiff for the personal injuries which she has suffered to the date of this judgment in the sum of €60,000 of which the sum of €5,000 represents the increased amount of the compensatory damages. The court will award the plaintiff additional damages in the sum of €15,000 in respect of personal injuries which she may suffer in the future. €13,625 agreed specials.
Other Cases Referred to in Arguments
Educational Company of Ireland Ltd & Anor. v. Fitzpatrick & Others [1961] I.R. 345.
Kennedy & Others v. Ireland and the Attorney General [1987] I.R. 587.
Allen (Claimant) v. Dunnes Stores Ltd. (Jan. 1995) [1996] Employment Law Reports 203.
The Health Board v. B.C. & The labour Court (Jan. 1994) Employment Law Reports.
Maher v. Jabil Global Services Ltd. [2005] I.E.H.C. 1310.
McGrath v. Trintech Technologies Ltd. [2005] 4 IR 382.
O’Keeffe v. Hickey & Others [2009] 1 ILRM 490.
Brennan v Mullan
[2014] IEHC 61JUDGMENT of Mr. Justice Cross delivered on the 18th day of February, 2014
1. The plaintiff is a detective garda who was born on 13th November, 1971. The defendant is sued representing the relevant Christian Brothers Congregation.
2. The plaintiff claims that while a student in a local national school, his class was visited by a Christian Brother, Br. F. who asked for assistance from a boy to work in the monastery garden which was situate nearby at St. David’s Christian Brothers Secondary School to which Br. F. was attached. The plaintiff, a bright lad, volunteered. He had the support of his parents and family who believed that Br. F. would be a good influence on him. This occurred in 1980 when the plaintiff was approximately eight years old. The plaintiff alleges that for a number of years following, up to at least 1986, he was subjected to grooming and sexual assaults involving fondling, masturbation, oral sex and anal sex by Br. F. The assaults were progressive commencing with Br. F’s hand being placed on the plaintiff’s knee and escalating as previously described. The assaults took place when the plaintiff would call on a regular basis to the monastery and would be admitted by various brothers upon him asking to see Br. F. The plaintiff visited Br. F. on almost a daily basis and the abuse would take place on almost every occasion the plaintiff visited the monastery. It took place in the brother’s bedroom and in areas of the monastery building which were not generally open to members of the public. The abuse continued until the brother fell ill and was taken to a nursing home in Sutton when the plaintiff visited him there where he was further abused.
3. The plaintiff claims that up to the commencement of the abuse he was a typical young lad who had great friends at school and after the abuse, he found himself not fitting in that the was without friends and he felt isolated and indeed guilty. The plaintiff had no formal sex education at the time and he felt responsible for what had happened.
4. The plaintiff gave evidence of his isolation the fact that his youth and adolescence and adulthood after the abuse stopped were miserable. He has been diagnosed as suffering from depression and chronic post traumatic stress disorder as a result of child sexual abuse and personality trait disorder with sensitivity preoccupation, rumination inadequacy, isolation and a sense of rejection.
5. The plaintiff joined An Garda Síochána in June 1992 and though the plaintiff is and was clearly very intelligent he only graduated from the garda training college, with an average grade. He also feels he got a generally bad reputation in Templemore due to his isolation and self preoccupations. The plaintiff recounted that he continued to get on badly with his peers but had a few girlfriends though he withdrew into himself and felt unable to fully develop any relationships at the time. He did not get on well in the gardaí in terms of promotion which he applied for but felt that his previous reputation in Templemore and afterwards as a loner or difficult person in the force, militated against any promotion. He is still at the rank of garda. In 2008, the plaintiff was accepted for study into King’s Inns to lead towards the degree of Barrister at Law, however, he was unable to for financial reasons to avail of this opportunity.
6. The plaintiff did commence rowing with the famous garda rowing club and was proficient at this, and later became rowing captain in 2001, and this gave him a comradery and some support though the first person he could tell about the abuse was his first serious girlfriend but he later broke off his relationship with her as she was looking for commitment.
7. He also informed a few of the other girlfriends with whom he was in a serious relationship about the abuse and one of the girls, an American, who advised him that she had been herself raped insisted that he go to the Rape Crisis Centre in 1995. He was given some five or six sessions of counselling at their centre in Molesworth Street and they advised him to go to the Christian Brothers but he did not feel able to go. The plaintiff was given the name of a well known solicitor by the Rape Crisis Centre and he went to the solicitor who advised him that as the person was dead that he “didn’t have a case”. He also made an anonymous complaint in the late 1990s to An Garda Síochána but he did not feel able to follow this up.
8. The plaintiff’s injuries as described continued and he first met his wife in 1998 and he commenced going out with her 2000. The relationship broke up but they got together again on the condition that the plaintiff would go to regular counselling. The plaintiff felt that this counselling transformed him from being an isolated person and opened him up and resulted in some improvement of his symptoms.
9. The plaintiff claims that before the counselling he was very insecure and volatile he used to take his insecurities out on his wife. He later heard an item on the wireless in 2009 to the effect that a religious order had been successfully sued notwithstanding the death of the abuser and he recalled the advice that he got from the solicitor in 1995 which now appeared erroneous.
10. The plaintiff then went to the One in Four Organisation and he met his present solicitor, Mr. Mehigan in June 2009 who advised that a claim would have to be first brought before the Personal Injuries Assessment Board (PIAB) and authorisation was issued on 31st March, 2010 and the proceedings herein followed in the normal way.
11. The plaintiff recounts that when it became clear that the case would proceed to a full trial in this Court, he had the very painful task of first informing his siblings one after another of the fact of his abuse and of the fact that he was taking the case. This was only done shortly before the case was first listed for trial. The plaintiff advised that he still has not had the courage to tell his parents and hoped that his name would not be published during the case. It is clear that the informing of his siblings about the abuse was still a very difficult and traumatic event for the plaintiff. The plaintiff hoped that his parents would not hear of the case in the media.
12. I note that due to the good officers of the media, no publication of the plaintiff’s name has to my knowledge taken place.
13. In the proceedings, the plaintiff claimed against the defendant for damages for injury caused by the negligence of the defendants in their failure to take reasonable steps to ensure that the plaintiff would be safe and protect him from harm. In particular the plaintiff claims that the defendants were in breach of their duty of care as they were aware, or ought to have been aware than on 8th December, 1960, Br. F. had been furnished a formal Canonical Warning by his superiors on account of him “interfering incorrectly with boys who had been in your class”.
14. The defence in this matter was a complete denial of the fact of the sexual assaults of any loss or damage or the fact that Br. F. was under the control of the defendants or the fact that the defendant owed any duty to the plaintiff. It was further pleaded that any injury or loss was not caused by reason of the matters complained of and that the defendant was a nominee of the Irish Congregation of Christian Brothers, an unincorporated community of religious brothers and that neither the defendant nor any other members of the community had a responsibility for any of the acts alleged to have caused the personal injuries. It was denied that the defendant or any other member of the Congregation could be personally or vicariously liable in respect of the conduct of Br. F. There was also a plea in reliance of the provision of s. 35(1)(i) of the Civil Liability Act 1961.
15. It was then pleaded that the plaintiff’s claim was statute barred and the claim should be struck out due to the inordinate and inexcusable delay to institute proceedings.
16. The trial proceeded on 4th, 5th and 6th December, 2013, on this basis but on its resumption on 10th December, 2013, by agreement between the parties, an issue paper was furnished which narrowed the issues in dispute between the parties and read as follows:-
“(1) In this case, the defendant has not contested the fact that the plaintiff was sexually abused by (Br. F.).
(2) The defendant does not in this case rely on the defence that the Christian Brothers Congregation European Province is an unincorpate body which is incapable of being sued.
(3) The defendant does not in this case rely on the defence under s. 35(1)(i) of the Civil Liability Act 1961, as amended.
(4) The plaintiff raises no claim based on vicarious liability.
(5) The remaining issues in this case fail that fault to be determined are:-
(i) the plaintiff’s claim in negligence;
(ii) the denial of the allegations made by the plaintiff that he has suffered personal injuries, loss and damage;
(iii) the defence on the statute of limitation; and
(iv) the defence based on delay.
The above issues only relate to the within case and are strictly without prejudice to the Congregation’s full defence in other cases.”
17. Accordingly, up to the last day of the hearing, although the defendant had not questioned the plaintiff’s account of the abuse by Br. F., this had not been admitted by the defendant.
18. Before dealing with the issues in the order that I propose to do so, I want to make it clear that I accept the plaintiff’s evidence in full, I believe that he is a truthful witness who has been severely abused by Br. F. in a manner that has caused him significant trauma and I note that it is only with the issue of these proceedings that these matters came to be acknowledged on the last day of the hearing.
19. I believe that the plaintiff in no way exaggerated, the injuries and the trauma that he has suffered.
20. I propose to deal with the issue in the following manner:-
(a) Were the defendant’s negligent?
(b) Should the plaintiff’s claim be dismissed for inordinate and inexcusable delay?
(c) Had the defendant a defence under the statute of limitations?
(d) If appropriate, the issue of damages?
Negligence
21. The defendant representing the Congregation of Christian Brothers is, in my view, negligent in its failure to take any steps whatsoever to supervise Br. F. or to prevent him from access to vulnerable child such as the plaintiff in the full knowledge that Br. F. had been, in the past, guilty of child abuse of young boys.
22. I fully accept that up to reasonably recently, the knowledge as to the addictive propensity of abusers to resume their abusive actions was not widely appreciated. Accordingly, it would be entirely inappropriate to view any negligence of the defendant with the hindsight of the years since the last decade of the twentieth century.
23. It remains to be said, however, that as early as 1960, the defendant’s predecessors were aware that Br. F. was a person guilty of sexual abuse. In the light of that knowledge, the members of the defendant’s Congregation allowed the plaintiff unfettered access to Br. F., members of the Congregation opened the door of the monastery to him, allowed him to wander about the inner sanctum of the monastery and to visit Br. F. in his bedroom unsupervised on a regular basis. I hold that even by the standards of the 1980s, the defendants ought to have put in place a system to watch and monitor Br. F. to ensure that he did not have such access to the plaintiff or to others. The calling by the plaintiff on a regular basis every day to assist Br. F. in the cultivation of the monastery garden or otherwise, must have been known and must have been remarked upon and ought to have resulted in measures being put in place to watch Br. F. and to prevent him having access to the plaintiff so that he could abuse him on a regular and continuous and sustained basis. There is absolutely no evidence of any system being put in place by the defendant in relation to Br. F. or any treatment of Br. F. that differentiated him from the vast majority of non-abusive brothers. If there was any such evidence it could have been produced by the defendants and no evidence has been furnished that any lapse of time has prevented the Congregation giving evidence of any differentiation of the treatment of Br. F. from other members of the Congregation. It seems clear that having given the Canonical Warning in 1960 the defendants proceeded to treat Br. F. in precisely the same manner as every other member of their Congregation.
24. The defendant initially pleaded provision of s. 35(1)(i) of the Civil Liability Act 1961, attempting to visit the plaintiff with the actions of Br. F. but have quite properly withdrawn such a plea. There is no question of contributory negligence in this case.
Delay
25. The defendant contends that the proceedings ought to be struck out due to the delay in maintaining the action by the plaintiff. The court has an inherent jurisdiction to strike out proceedings for an inordinate and inexcusable delay as was established by the Supreme Court in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459.
26. In Primor, Hamilton C.J. in the course of delivering his judgment (at pp. 475 and 476) stated as follows:-
“(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to
(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action,
(iii) any delay on the part of the defendant — because litigation is a two party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant’s reputation and business.”
27. In a number of recent cases referred to in their submissions by the defendant (e.g. Gilroy v. Flynn [2005] 1 ILRM 290 and W. v. W. [2011] IEHC 201), the Supreme Court and the High Court referred to Article 6 of the European Convention on Human Rights suggesting that the courts independently of the actions or inactions of the parties have an obligation to ensure that the rights and liability, civil or criminal are determined within a reasonable time.
28. Be that as it may and accepting that certain periods of delay would now held to be inordinate that would not have been held inordinate in times gone by, the law still requires the court to be satisfied by the Primor principles (above). Indeed, it could hardly be otherwise. The right to a speedy trial must, in my view, be subsidiary to the overriding right of a litigant to a trial in the first place. The right and indeed the obligation on the courts to dismiss cases for inordinate and inexcusable delay is contingent upon a finding of inexcusability. This, of course, involves culpability on the part of the plaintiff or the plaintiff’s legal advisers. Even if “inexcusability” is found a balancing exercise must take place before a case could be dismissed.
29. Turning to the instant case, I accept the submission on behalf of the defendants that the delay in this case is indeed inordinate. The lapse since the date of abuse may not be “more than 30 years” identified by the defendants in their submissions but it is at least 25 years and indeed it by any stretch to the imagination inordinate.
30. The defendants contend that the delay is inexcusable and rely upon the observations of Hogan J. in I. v. J. [2012] 1 IEHC 327 (20), in which he referred to the delay in which the plaintiff took from her initial legal complaints to the initiation of the proceedings and then her failure to pursue the proceedings with despatch.
31. The defendants contend that as the plaintiff in this case sought legal advice and was in a position to attend a solicitor’s office in 1995 to discuss a potential case against Br. F. that it was the legal advice which prevented him from initiating proceedings in 1995 and not any incapacity.
32. The issue of the plaintiff consulting a solicitor in 1995 and any incapacity that he suffered or may have suffered at that time or since that time will be further discussed under the heading of the statute of limitations but the issue before me on the question of delay is not the cause of the plaintiff’s delay in issuing proceedings but whether the delay was excusable or inexcusable. In this case there is no question of any post procedural delay on the part of the plaintiff or his solicitors. I am of the view that the defendants who have the obligation to make the case have failed to establish that the plaintiff’s delay was, in all the circumstances, inexcusable.
33. It is clear that the plaintiff was, long after his consultation with a solicitor in 1995, and indeed is still, despite the counselling, suffering under the after effects of the abuse. On receiving advice in 1995, that he had no case against Br. F. (the question of whether he had any case against the Congregation was not, it seems, canvassed), the plaintiff quite naturally did not issue proceedings. It may well be that in 1995, a prudent solicitor would have correctly advised the plaintiff that the state of the law as it then was that he would have great difficulty, to say the least in any case against the Congregation due to the then effects of the statue of limitations, but as I said this issue does not seem to have been canvassed with the solicitor.
34. Stephens v. Paul Flynn Ltd [2008] 4 IR 31 and other cases, are clear authority for the proposition that a party acting through a solicitor is to an extent vicariously liable for the activity or inactivity of the solicitor in relation to the length of delays in litigation. Accordingly, a plaintiff cannot escape the fact that he may be guilty of inordinate delay when the delaying party was his solicitor. The issue to be determined here is entirely different, it is whether the plaintiff’s delay in commencing the proceedings was in the circumstances inexcusable and I have come to the conclusion that the defendants have failed to establish that fact. When ascertaining excusability, the court is performing an entirely different function from the ascertaining of the inordinate nature of the delay. Even if a prudent solicitor in 1995 would have advised issuing proceedings against the Congregation (and given the nature of the statute at the time that has not been established), when it comes to assessing whether the failure to initiate the proceedings was inexcusable, I must assess the plaintiff’s mind and I hold that his delay was entirely reasonable. At worst, from the plaintiff’s point of view, he was given not unreasonable advice and acted upon it.
35. However, I do not accept that the defendants have established on the balance of probabilities that even had the solicitor advised the plaintiff that he had a good case in 1995 that he would necessarily have taken one. It is clear that the plaintiff did not continue with any counselling after his initial visits to the Rape Crisis Centre in 1995 and his injuries and disabilities were continuing. I am not satisfied that he would have had the capacity to bring proceedings in 1995 had he been advised he could do so. It is noteworthy that he failed to heed the Rape Crisis Centre’s advice that he should go to the Congregation and reveal his abuse. The plaintiff also was unable to further his anonymous complaint to An Garda Síochána.
36. If I am incorrect in my reasoning, I have no hesitation in deciding that the balance of justice clearly lies in allowing the case to proceed.
37. No allegation of prejudice is alleged other than the possibility that Br. F. and other brothers could have given evidence. Given the fact that the defendants, who are well advised, did not dispute the fact or nature of the abuse perpetrated by Br. F., the absence of Br. F. is therefore not material. The same point answers any question of prejudice due to the probable absence of any of the other brothers in the monastery who could arguably have given evidence contrary to the plaintiff’s version of how he gained access to the building. I do not believe that any of these evidential lacunae are relevant to the plaintiff’s case, once the admissions that were made on the last day of the hearing applied. Even without these admissions as my principle finding of negligence against the defendant is the failure to have any system in place that could or did supervise or watch the activities of Br. F. in the light of the Canonical Warning no question of prejudice could arise as such evidence could have been given from the records of the defendant or indeed from other members of the Congregation still alive.
38. Even if the delay were both inordinate and inexcusable (which I have not found) I would hold that the balance of justice should allow the case to proceed and the defendant should fail on that defence.
The Statute of Limitations
39. Section 3(1) of the Statute of Limitations (Amendment) Act 1991, as amended by s. 7 of the Civil Liabilities and Courts Act 2004 provide that a plaintiff has two years from the accrual of his cause of action to bring a personal injuries action.
Section 3(1) of the 1991 Act provides that an injured party has two years from his “date of knowledge” within which to institute proceedings if this is later than the date of the accrual of his cause of action.
40. A person’s date of knowledge is the date in which he was aware of the five matters contained in s. 2(1) of the 1991 Act which provides as follows:-
(Reference is to that person’s date of knowledge) “are references to the date on which he first had knowledge of the following facts:-
(a) that the person alleged to have been injured had been injured,
(b) that the injury in question was significant,
(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
(d) the identity of the defendant, and
(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”
41. The plaintiff would have reached his majority in November 1989. In 1989, he would have had irrespective of any subsequent enactments, three years from his majority date to initiate proceedings. In Delahunty v. South Eastern Health Board [2003] 4 IR 361, the plaintiff alleged that he had been sexually abused by a house master while visiting an industrial school in 1976 when he was 11 years of age. The plaintiff claims that the abuse had caused him to suffer from psychological problems which he only later realised were attributable to the abuse and proceedings were issued in 1997. The defendants said the proceedings were statue barred. Having heard detailed expert medical evidence, O’Higgins J. held that the proceedings were not statute barred and that the plaintiff only became aware of the facts constituting his date of knowledge within the meaning of s. 2 of the Statute of Limitations (Amendment) Act 1991 within a period of three years prior to the proceedings being brought. He was aware of having been assaulted and the identity of his perpetrator but it was held that he was not aware of the significance of the assault nor was he aware that his significant psychiatric and psychological injuries were attributable to the sexual assault until 1996 and that knowledge was only ascertainable with the help of psychological and psychiatric medical experts and the plaintiff had taken all reasonable steps to obtain that device.
42. In this case, however, the plaintiff was aware that his significant psychological and psychiatric injuries were attributable to his abuse certainly from 1995 and accordingly, I hold that the plaintiff cannot avail of the provisions of this Act and he does not fall within the terms of the Delahunty judgment (above).
43. It remains to be considered whether the plaintiff is or was under a disability as defined in the Statute of Limitations (Amendment) Act 2000 or is otherwise entitled to the benefits of that Act.
44. Section 49(1)(a) of the 1957 Statute of Limitations, coupled with the provisions of s. 5(1) of the 1991 Act as amended by s. 7 of the Civil Liability and Courts Act 2004, provided a two year period from the date when a person ceased to be under a disability subject to a number of not relevant exceptions.
45. The Statute of Limitations (Amendment) Act 2000 was introduced to deal with perceived injustices of the then existing law in relation to the Statute of Limitations in light of the mounting issue of sexual abuse.
46. Section 2 of the 2000 Act amended the 1957 Act by inserting the following section after section 48:-
“Disability of certain persons for purpose of bringing certain actions arising out of acts of sexual abuse.
(1) A person shall, for the purpose of bringing an action –
(a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached full age, or
(b) against a person (other than the person who committed that act), claiming damages for negligence or breach of duty where the damages claimed consist of or include damages in respect of personal injuries caused by such act,
be under a disability while he or she is suffering from any psychological injury that –
(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and
(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired.
(2) This section applies to actions referred to in subsection (1) whether the cause of action concerned accrued before or after the passing of the Statute of Limitations (Amendment) Act, 2000, including actions pending at such passing.
(3) An action referred to in subsection (1), that but for this subsection could not, by virtue of this Act, be brought, may be brought not later than one year after the passing of the Statute of Limitations (Amendment) Act, 2000, provided that, after the expiration of the period within which such action could by virtue of this Act have been brought, but prior to 30 March, 2000 …”
47. The remainder of the section does not seem to be of relevance.
48. It is submitted on behalf of the defendants that the effect of s. 48A was “simply to introduce a once off extension of time, running for one year from 21st June, 2000”. In this regard, the defendants place reliance upon the decision of O’Dwyer v. McDonnell [2006] IEHC 281 and suggested it is also the interpretation given by the learned author in Cany Limitation of Actions (2010)at para. 9.18.
49. I am urged by reason of the doctrine of Stare Decisis as eloquently articulated by Clarke J. in Worldport Ireland Limited (In Liquidation) [2005] 1 IEHC:-
“It is well established that, as a matter of judicial comity, a judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong…Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all of the relevant authorities and which was, as was noted by Kearns J., based on forming a judgment between evenly balanced argument. If each time such a point were to arise again a judge were free to form his or her own view without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered….”
50. I have read the judgment in the case of O’Dwyer v. McDonnell, which I have been referred to. This case consisted of an application by the defendants to dismiss the plaintiff’s claim against the State on grounds of inordinate and inexcusable delay in which the learned judge made passing reference to the Statute of Limitations (Amendment) Act 2000 and the quotation to which I am referred to arises:-
“The effect of provisions of s. 48A of the Act of 2000 was to permit certain categories of person (a), who were suffering from psychological injury, (b) which had been caused, (in whole or in part), by alleged sexual abuse committed when the person had not reached full age and, (c) who would otherwise have been barred by the positions of the Statute of Limitations, 1957, to bring an action founded on tort against the alleged perpetrator of the abuse within one year after the passing of the Act of 2000.
Such an action could be brought provided inter alia that, prior to the 30th March, 2000, the person concerned had either, (i) obtained professional legal advice which has caused him or her to believe that the action was barred by the provisions of the Act of 1957 or, (ii) had made a complaint to the Garda Síochána in respect of the abuse.”
51. It is absolutely clear that the learned judge was not interpreting the provisions of s. 48A of the 2000 Act and in particular he did not examine the provisions of s. 48A(1) of the Act. The learned judge was considering the issue under the Primor principles as defined above and reference to the 2000 Act in that judgment were clearly obiter and indeed it is clear that insofar as the learned judge referred to s. 48A at all, he was referring to s. 48A(3) as he makes reference to the provisos in relation to legal advice etc. In that case there was no question of the plaintiff being somebody who may have suffered under a disability at law.
52. I do not therefore find that the principles of Stare Decisis in any way is invoked by virtue of the decision in O’Dwyer (above). Contrary to the submissions on behalf of the defendant, I do not accept that the learned author in Cany Limitation of Actions (2010) at para. 9-8 interpreted the Act in the manner as contended for by the defendant either.
53. In the effect of the 2000 Act was, in my view, to do two things. First of all, s. 48A(1) stated that a person who satisfied its provisions would be considered to be a person under a disability within the meaning of the Statute of Limitations Act 1957, as amended, (i.e. have two years after the end of the disability period to bring the action) and further under s. (3), if the plaintiff were not under a disability in the case of an action claiming damages for sexual abuse etc. then that person had a once off period of one year after the passing of the 2000 Act to bring his proceedings provided certain conditions were met. It is clear that s. 48A(1) and s. 48A(3) are creating separate rights or entitlements to a victim of sexual abuse.
54. It is clear that the plaintiff cannot qualify under the one year period. The issue before me is to whether or not the plaintiff has demonstrated that he is indeed a person under a disability as defined by section 48A(1).
55. In order to qualify as being under a disability under s. 48A(1) the plaintiff must be suffering from any psychological injury that is caused in whole or in part by the act of sexual abuse or any other act of the person who committed the act of sexual abuse and that injury is of such significance that “his or her will, or his or her ability to make a reasoned decision to bring such action is substantially impaired”.
56. It is clear that any disability that the plaintiff is suffering from was caused in whole or in part by the act of Br. F. and accordingly the issue before me is whether that the ability of the plaintiff to make a reasoned decision to bring the action is “substantially impaired”.
57. The defendants submit that the plaintiff in 1995 went to see a solicitor and indeed counsel and returned on a second occasion took legal advice about the case and followed that advice. It is submitted by the defendant that at that point in time at the very latest, the plaintiff was not under any disability and had the capacity to institute legal proceedings. It is submitted that the plaintiff had the will and ability to attend a solicitor with a view of instituting a case and the only reason that he did not actually institute the case at the time because he was legally advised that it would not succeed. In this regard, the defendant relies upon their expert witness Dr. Sheehan who was of the view that the plaintiff had capacity from 1995 to instruct a solicitor and makes the point that “there was no psychological disability be treated or anything, it was a legal impairment that was taken away and he subsequently pursued the case”.
58. The plaintiff relies upon the evidence of Dr. Paul McQuade who established that the plaintiff suffered post traumatic stress, depression, he had a need to be secretive and control his memories and an ability to fit in with his peers, difficulty in relation to friendship and social withdrawing and vivid memories of the sexual abuse he suffered, rejection of his religion, immature sexualisation, doubt and insecurity, personality trait disorder, preoccupations and ruminations and feelings of inadequacy and isolation and rejection.
59. The plaintiff further relies upon the judgment of Ryan J. in Doherty v. Quigley [2011] IEHC 361, delivered on 5th July, 2011, in which he correctly identified that impairment, not prevention as the determining factor in assessing capacity under the 2000 Act. In that case, the plaintiff had been abused in the 1980s when the statute in the normal course would have expired in the early 1990s and proceedings were initiated in 2007 and the plaintiff in this case relies upon the following passage from the judgment:-
“The section provides for impairment, not prevention, of capacity. It seems obvious that one cannot simply say that a person who brings an action is necessarily outside the scope of the provision. Nor will it always be possible to say with any confidence when impairment ended. The fact that the plaintiff did actually bring proceedings or have them instituted on her behalf in 2007 does not mean that she is obliged to prove that there was a date when her condition changed from previous impairment to non-impairment. It seems to me that some such proposition is implicit in the defendant’s approach in submissions and cross-examination. And it does not have to be at a particular level all the time; that would not make sense because there must be very few conditions, whether psychological or physical, that do not wax and wane over time. It follows that the section may apply in a wide range of circumstances, including episodic reduction of capacity if that means it is substantially impaired.”
60. If I accept for the purposes of this judgment that in 1995, had the plaintiff been furnished with advice that he had a good cause of action, he would have initiated proceedings, it does not necessarily follow from that fact the plaintiff’s capacity was not “substantially impaired” in 1995 or subsequently.
61. I find that after the 1995 advice the plaintiff continued and continues to be suffering from a disability that has substantially and is still substantially impairing his ability to bring the proceedings. The fact that he has now managed to does not alter the essential facts about the plaintiff’s psychological situation. The plaintiff has on the advice of his wife been attending intensive counselling in recent years. This has been of great assistance to him and alleviated the problems that he is suffering from to a considerable degree. Notwithstanding that fact, I accept the medical evidence of Dr. McQuade and the evidence of the plaintiff as to his present situation. He was still clearly psychologically considerably damaged after 1995 and indeed still is damaged. He was unable to make a formal complaint to An Garda Síochána. He could not bring himself to confront the Congregation as he had been advised. Accordingly, though he had been given much good advice in 1995 and indeed later, he was unable to follow that advice. He did not persist with his counselling and his problems with relationships, friends and generally with his life persisted. Even after the support of a loving wife and family and after extensive counselling and after the launching of proceedings he still does not have the capacity to inform his parents that he was abused. He had to undergo a considerable regime of planned preparation before he could inform his siblings. In order to inform his siblings, he had to construct a regime whereby he first told the sibling he considered the strongest and relied upon the support of already informed siblings to notify the rest of his large family.
62. I have no hesitation following the judgment of Ryan J. (above) in holding that the plaintiff was prior to initiating of the proceedings herein suffering from psychological injury of such significance that his ability to make a reasoned decision to bring the action is substantially impaired within the meaning of section 48A(1).
63. Accordingly, the defence of the Statute of Limitations must fail.
Quantum
64. I have not been addressed by the parties in relation to quantum. The defendant was not the party who assaulted the plaintiff but the negligence of the defendant, as found, resulted in the plaintiff being grievously assaulted over a prolonged period of time with significant adverse consequences to the plaintiff.
65. Accordingly, I do not see any substantial difference between the general damages the plaintiff would be entitled to as against this defendant rather than had Br. F. been personally sued. The only difference is that the issue of aggravated or extemporary damages does not, in my view, arise.
66. Clearly the issue of aggravated or exemplary damages would arise against Br. F. had he been the defendant. In this case, the claim against the defendant is for damages for negligence and I do not find that the manner in which the defendants defended this case was such as to give rise to any aggravated or exemplary damages. I believe that the defendants were entitled to defend the case though the concessions made on the last day of the trial could properly have been made before its commencement without any difficulty to defendant and had that been so, I have no doubt but that the plaintiff’s burden would have been easier.
67. As previously stated, it is only with the bringing of these proceedings and indeed of the fourth day of their trial that the plaintiff has received a helpful acknowledgement that what he has said is true.
68. I have previously discussed the nature of the abuse the plaintiff has suffered. I have also in the course of my judgment referred to the past and ongoing trauma that the plaintiff endured. I fully accept the plaintiff’s evidence and the evidence of Dr. McQuade in this regard.
69. The sexual abuse suffered by the plaintiff is of the most extreme that I have seen in my career as a judge or earlier as a barrister. It is correct, of course, that the plaintiff was not physically attacked in a violent way but that does not make the abuse he suffered or its consequences any the less. Indeed, for someone who like the plaintiff has suffered abuse of a sexual nature after grooming and who as a young lad without any sexual experience went back time and time again to his abuser the ongoing psychological effects of such abuse can be far more serious than if someone is violently and sexually assaulted. The element of guilt and self doubt may exist to a far larger degree in someone who did not object or resist the abuse someone who was the object of a violent sexual assault. Such is my view of the plaintiff’s situation. In my view, the plaintiff has suffered severe injury which have affected him throughout his life up to date and which are still affecting him. The plaintiff has been substantially rescued from his discomfort by the love of a good woman, the benefits of fatherhood and the beneficial effects of ongoing counselling which will, in my view, render his future far more hopeful than his past.
70. I note the opinion of Dr. McQuade that the plaintiff’s prognosis is “guarded in terms of continuing potential for mood swings”, which I accept. I also however accept Dr. McQuade’s final conclusion “while he has been significantly damaged by virtue of his sexual abuse, as alleged, they are important indicators of favourable and more mature developments”.
71. It remains to be said that the abuse the plaintiff suffered was over an extraordinary long period. The plaintiff is a most admirable individual who as essentially triumphed over adversity and is, I believe, a credit to his profession in An Garda Síochána.
72. A case is made out that the plaintiff has suffered some loss of promotion, opportunity and I think that a relatively modest sum of €20,000 in the general damages to date should make up for this. I would be hopeful that the plaintiff will, given the courage he has shown as well as his clear intelligence qualify for promotion in the near future.
73. I assess general damages to date to include a sum for loss of job opportunity at €320,000 and general damages into the future at €50,000 totalling together a sum of €370,000.
Elmontem v Nethercross Ltd
[2014] IEHC 91JUDGMENT of Mr. Justice Herbert delivered the 28th day of February 2014
1. The court is satisfied on the evidence that the second defendant was employed by the first defendant as head chef at its hotel, spa, golf and leisure complex at the date of the events giving rise to these proceedings. The evidence established that this was and is a very considerable enterprise employing between 70 and 100 people of mixed ethnicity. I am satisfied that the offer of employment was made by email dated the 17th March, 2010, under the signature of Ian McGuinness, who proved this document. He gave evidence that he was managing director of the first defendant since June 2004. The offer was accepted by the second defendant. The evidence established that the position was not advertised in the print media or in any trade journals. I am satisfied on the evidence of Mr. Brady, then general manager of the complex, and Mr. McGuinness that this was unnecessary as the existence of the vacancy would have been well known within the small group of non self-employed experienced and reputable chefs working in the State. I am satisfied that the decision to offer the position to the second defendant was made by Mr. McGuinness and not by Mr. Brady.
2. I find on the balance of probabilities that Mr. McGuinness at that time was not aware and was not aware at the time of the incident giving rise to the present claim, that the employment of the second defendant as head-chef by a former employer had been terminated following an incident in which he had assaulted an under-chef by throwing a pan at him in the course of their work. The person who had investigated that incident and who had terminated the second defendant’s employment on that occasion was Mr. Brady, who was then general manager of that other business.
3. It is clear from the text of the offer contained in the email dated the 27th March, 2010, that Mr. McGuinness had met the defendant on at least one occasion before offering him the position of head-chef with the first defendant. There was no evidence that the second defendant had submitted or had been required to submit a curriculum vitae when applying for the position with the first defendant. I find on the balance of probabilities that Mr. Brady did not, as he now recalls, inform Mr. McGuinness of this previous assault, nor had he cautioned Mr. McGuinness about employing the second defendant. I am also unable to accept his “belief” that the second defendant had told Mr. McGuinness of this previous assault. The dismissal had, it appears resulted in a hearing before the Employment Appeals Tribunal at which the second defendant had been awarded the equivalent of a month’s salary.
4. The evidence established that there were several other well qualified candidates for the position in addition to the second defendant. Mr. Brady told the court that the second defendant was an excellent chef, but had a problem controlling his temper. I accept the evidence of Mr. McGuinness that he would not have offered the position to the second defendant had he been aware of this previous incident in the second defendant’s career. He and his fellow directors and shareholders, – the first defendant is a family owned and controlled company, – would have been concerned about the risk of involvement in employment disputes or litigation. On the balance of probabilities I find that Mr. McGuinness is correct in his recollection that it was Mr. Brady who had arranged for him to meet the second defendant and that Mr. Brady had been present at that meeting. I accept his recollection that Mr. Brady had told him that the second defendant was a very, very good chef and was ideally suitable for the position. Mr. McGuinness recalled that he had understood that the second defendant was at that time intending to accept the position of chef at a licensed premises known as The Graduate in Killiney having decided to move from another licensed premises known as The Vaults. Mr. McGuinness told the court that he was unaware of the previous assault or of the Employment Appeals Tribunal hearing. Mr. Brady gave evidence that the previous assault had occurred at a resort in Co. Wicklow. The evidence established that the second defendant lived at Lusk, which is closer to the first defendant’s complex near Swords than Killiney. The manner in which Mr. McGuinness dealt with the second defendant following the incident in the present case is consistent with his evidence that he would not have chosen the second defendant for the position had he been aware of this previous assault. However, for the purpose of this action, the fact remains that Mr. Brady as general manager of the first defendant and therefore the immediate superior of the second defendant, was aware that the second defendant had demonstrated a propensity to behave violently towards fellow employees if angered.
5. The plaintiff is and has been since 2006 or 2007 financial controller of the first defendant. The evidence established that at approximately 17.30 hours on the 21st March, 2011, the second defendant called to the plaintiff’s office enquiring as to why he had not received a V.H.I. card when other senior employees had received theirs in the post. I am satisfied on the evidence of the plaintiff, – the second defendant was present in court and represented by solicitors and counsel but did not give evidence, – that during their ensuing conversation the second defendant became increasingly aggressive. The plaintiff told the court that he had advised the second defendant that he would telephone the V.H.I. offices as soon as he could, but that he was then busy dealing with a Bank. He said that the second defendant had raised his voice and shouted, “you are always (expletive) busy”. The plaintiff told the court that the conversation became so heated that he pointed his finger to the door and asked the second defendant to leave the office. Even were I accept, which I do not, the pleading that the plaintiff put his finger in the face of the second defendant in a provocative and aggressive manner and swore at the second defendant in an aggressive manner, this would not constitute negligence or contributory negligence on the part of the plaintiff in the circumstances of this assault.
6. I am satisfied on the evidence that the second defendant without warning struck the plaintiff who had remained sitting behind his desk, battering him violently about the face and head with both fists. The plaintiff told the court that when he had attempted to get up, the second defendant seized him by the neck and pushed him against the wall of the office and continued to punch him about the head and upper body. The plaintiff suffered a cut over his left eyelid, a black eye, contusions on the left side of his face, swelling of the facial soft tissues and bruising to his left shoulder area. I accept the plaintiff’s evidence that he was very severely shocked and traumatised and was in great pain and that his face and clothes were covered in blood.
7. Photographs admitted into evidence show blood spattered over documents on the plaintiff’s desk and even on the ceiling of the office. The plaintiff gave evidence, which was not contested, that there were also blood stains on the carpet surrounding his desk. Mr. McGuinness gave evidence that he was on his way to the office having been informed of the incident, when he met the second defendant and noticed that the knuckles of both his hands were covered in blood. This assault took place in the presence of another employee, – a part time accountant, – who was working at a desk in the same office as the plaintiff. This gentleman, who was named, did not give evidence. This gentleman brought the plaintiff to Airside Clinic at Swords and then to Swords garda station where the plaintiff made a complaint to Gda. Paul Healy. If a statement was taken on the occasion it was not produced in evidence. It was accepted that the second defendant had pleaded guilty to criminal charges brought on foot of this complaint.
8. It is submitted by the plaintiff that the first defendant is vicariously liable for this assault on him by the second defendant. Additionally or alternatively he submits, that the first defendant was negligent and in breach of duty, including breach of statutory duty, in failing to provide him with a safe place of work and responsible fellow employees. I am satisfied that these claims are sufficiently made out and particularised in the personal injuries summons and in the replies to the various requests for particulars raised on foot of the summons.
9. I adopt the “close connection” test for the imposition of vicarious liability expounded, after an extensive review of decisions in this State and in other common law jurisdictions, by Fennelly J. (Murray C.J. and Denham J. (as they then were) concurring), in O’Keeffe v Hickey [2009] 2 IR 302 at 378, paras. 243 and 244, where he held:-
“[243] 62. 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.
[244] 63. The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J. provides an excellent example of the practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 D.L.R. (4th) 45 the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.
10. Whether the actions of the second defendant on the 20th March, 2011, were closely connected with his employment must be considered in the context of such matters as, the nature of the employer’s business, whether the risk of the sort of incident which occurred arose because of the nature of that business, the nature of the duties, broadly defined, which the employee was engaged to perform at the time the incident occurred, whether the act could be said to be incidental to or a consequence of anything which the employee was employed to do, whether at the time of the incident the employee could reasonably be said to have been acting, however, mistakenly or excessively in the interests of the employer or was merely pursuing some private end, whether the employee in the course of his duties was expected or encouraged to act aggressively, whether the assault arose out of vengeance or spite, or resentment or intemperate behaviour on the part of the employee and, many other similar factors. The fact that the opportunity to commit the act would not have arisen but for the access to the plaintiff’s office afforded to the second defendant by his employment is not in my judgment sufficient to establish the requisite close connection between that employment and his tortious act.
11. Even on the most liberal construction of this test, I am satisfied, that to hold the first defendant vicariously liable for the tort of the second defendant would, on the facts hereinbefore set out, amount to imposing absolute liability on an employer. To alter the law to this extent would require, in my judgment, a clear act of the legislature. The presence of the second defendant in the plaintiff’s office on the 20th March, 2011, was I am satisfied, in relation to his employment with first defendant. The terms of his employment, by reference to the email of the 27th March, 2010, contain the following:-
“We have a company health scheme with V.H.I. and the company will cover the costs of V.H.I. for you personally, (cost €690), – if you want your family covered, the cost can be deducted from your salary.”
The grievance which brought him to the plaintiff as financial controller of the company was therefore connected with his employment. However, what then occurred was nothing more than a vicious attack on the plaintiff motivated by some personal resentment which ignited an apparently ungovernable temper. In my judgment this could not be remotely consistent with the interests of his employer and had no close connection with any acts which fell truly within the scope of his employment as head chef with the first defendant. I find that the first defendant is not vicariously liable for the assault by the second defendant on the plaintiff.
12. There is a non-delegable duty at common law on an employer to take all reasonable precautions for the safety of each of its employees and not to expose them to a reasonably foreseeable risk of injury: to act as a reasonably careful and prudent employer would in the circumstances. A similar but more extensive duty is placed on employers by the provisions of the Safety Health and Welfare at Work Act 2005. Part of this duty is to provide and maintain a safe place of work and to provide competent co-employees. I am satisfied in the instant case that no failure to provide the plaintiff with a safe place of work has been made out. This aspect of an employer’s duty relates to the physical condition in and under which an employee is required to work. It does not apply to the personal behaviour of a particular co-employee in an otherwise safe place of work. In the present case the evidence established that the plaintiff and the second defendant did not even work in the same building in this extensive complex. The incident which I have described occurred when the second defendant came uninvited to a building, – seemingly a former gate lodge on the premises, – where the second defendant and Mr. McGuinness alone had their offices. It is not suggested in evidence that the second defendant should not have come to the plaintiff’s office on the occasion or that he was acting contrary to instructions in so doing, or in so doing without making a prior appointment.
13. The Safety, Health and Welfare at Work Act 2005, came into force on the 1st September, 2005, (S.I. No. 328/2005). Section 8(1) of the Act of 2005 provides that:-
“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”
14. Without prejudice to the generality of subsection (1), section 8(2)(b) of the Act of 2005, imposes a duty on an employer of:-
“Managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.”
15. Section 8(2)(g) of the Act of 2005, requires an employer to provide:-
“The information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees.”
16. Section 2(6) of the Act of 2005, defines, “reasonably practicable” as meaning that an employer:-
“Has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.”
17. There is no definition in the Act of 2005, of “improper conduct or behaviour”. I find that it would include such matters as bullying, harassment, rough play, practical joking, racial or other abuse or physical violence.
18. The evidence established that the first named defendant through its then general manager, Mr. Brady, was aware that the second defendant had on a previous occasion in a fit of temper caused physical injury to a fellow employee in the course of their joint employment. I am satisfied that Mr. Brady knew or ought to have known that there was a very real risk, not just a mere possibility, that this could occur again, if for any reason the second defendant’s temper became aroused and that this exposed his fellow employees, including the plaintiff, to a risk of physical injury. I am satisfied that it was reasonably foreseeable that the second defendant was likely to prove a source of danger to other employees of the first defendant because of his apparently ungovernable temper.
19. It was not submitted and I would not accept, that it was negligent or a breach of duty including statutory duty on the part of the first defendant to have employed the second defendant at all. The evidence did not establish that Mr. Brady was aware of any further assaults perpetrated or threatened by the second defendant on fellow employees. Mr. Brady had dismissed the second defendant following the previous assault. This may have led Mr. Brady to assume that such an incident was unlikely to recur. However, the cause of the previous assault was not a personal antipathy between the second defendant and a particular fellow employee no longer on the scene. The cause was the second defendant losing his temper to an almost maniac level with a co-worker over some dispute or perceived grievance in the course of their work. A real risk of a reccurrence therefore remained. In my judgment the making of such an assumption would not and did not excuse the employer from taking no measures whatsoever to prevent a recurrence. The first defendant did not exercise reasonable care and, certainly did not exercise all due care to put in place measures to prevent or to protect against, such an event. This was not a risk which could be entirely eliminated, but in my judgment was one which could have been adequately controlled without grossly disproportionate or expensive measures.
20. The first defendant, however, took no care to put in place measures to prevent a recurrence of such improper conduct or behaviour on the part of the second defendant likely to put the safety and health of other employees at risk. There was no evidence that the first defendant had a Safety Statement or a notified policy which identified conduct or behaviour in the workplace that would not be tolerated, – conduct such as verbal abuse or physical violence of or towards other workers. There was no evidence that Mr. Brady had notified and warned the second defendant in writing in clear and definite terms that physical violence towards any other employee would not be tolerated and would result in his being dismissed for gross misconduct. The evidence established that Mr. Brady ceased to be general manager of the first defendant in July 2010, prior to the assault by the second defendant on the plaintiff. However, the common law and statutory duty to put necessary protective and preventive measures in place arose immediately on the employment of the second defendant in March 2010 and continued unabated thereafter. The evidence did not establish that the first defendant had security staff or C.C.T.V. monitoring at the complex. This might have had an additional deterrent effect on the second defendant. However, one cannot lose sight of the fact that the second defendant perpetrated the assault on the plaintiff in the presence of another employee of the first defendant and a short distance from the office of Mr. McGuinness, managing director of the first defendant.
21. Mr. McGuinness gave evidence that prior to the assault on the plaintiff by the second defendant he had received a complaint from another employee that the second defendant had made very offensive racist remarks about the wife of that fellow employee. Mr. McGuinness said that he had immediately investigated this complaint. The second defendant had apologised to the other employee, – they were both from the same ethnic background, – and the apology was accepted. Mr. McGuinness told the court that he had given a verbal warning to the second defendant on that occasion. In my judgment an incident like this should have clearly brought home to the first defendant the urgent necessity of having a clear Safety Statement or policy with regard to improper conduct or behaviour at work, especially having regard to the multi ethnic nature of its large workforce.
22. I am satisfied that the plaintiff succeeds on this aspect of his claim. I find that the first defendant and the second named defendant are jointly liable to the plaintiff for the injuries suffered by him.
23. After the incident, the plaintiff was seen at the Accident and Emergency Department of Beaumont Hospital. X-rays taken of his facial bones showed no fractures. The plaintiff was given an anti-tetanus injection and his left eyebrow was sutured with three sutures. He was then discharged into the care of his general medical practitioner, Dr. Richard Aboud.
24. The plaintiff was examined by Dr. Aboud on the 28th March, 2011, one week following the assault. On that occasion Dr. Aboud noted that the plaintiff had substantial bruising on the left side of his face and over his eyes. There was a 2cm long sutured laceration over his left eyebrow. The entire soft tissue of his face was tender. The plaintiff had left sided jaw pain which limited mouth opening. He complained of a clicking sensation when he opened his mouth. Dr. Aboud prescribed anti inflammatory medication and exercises, – which I assume were facial exercises. The plaintiff was re-examined by Dr. Aboud on the 4th March, 2011. On that occasion, the plaintiff complained of increased pain and a worsening of the clicking sensation in the left side of his temporo-mandibular joint. An M.R.I. scan was carried out on the 12th April 2011. This disclosed no bone lesion or soft tissue abnormality and joint alignment appeared satisfactory. The radiology Report notes that the imaging was somewhat suboptimal due to movement.
25. The plaintiff was seen by Mr. Leo A. Vella on the 25th April, 2012. He noted that the wound over the plaintiff’s left eyebrow had healed without leaving a noticeable scar. Mr. Vella recorded that the plaintiff was taking prescribed analgesic medication together with anti-depressant medication and sleeping tablets. He noted that the plaintiff was attending Ms. Elizabeth Buckely for psychological counselling. Mr. Vella found that there was some remaining bruising on the plaintiff’s left shoulder, but recorded that the plaintiff had advised him that this was not causing the plaintiff any problems. Mr. Vella found that the plaintiff could open his jaw fully, but that there was a minor soft click in the left temporo-mandibular joint. Mr. Vella recorded that the plaintiff was obviously upset during this examination and appeared to be suffering from significant psychological upset or depression.
26. X-rays were taken of the plaintiff’s mandible on the 9th August, 2011, which showed no fractures. The plaintiff was seen on the 17th August, 2011, by Mr. Padraig O’Callaigh, a consultant oral and maxillofacial surgeon. He advised the plaintiff that he had sustained no jaw or facial fractures. The plaintiff was again seen by Mr. Vella on the 8th November, 2013. Mr. Vella noted that on the 14th June, 2013, an x-ray mandible pantomogram showed a normal bony outline. Mr. Vella considered that the plaintiff had made good progress, but still suffered clicking in his left jaw on opening his mouth. He noted that the plaintiff continued to suffer occasional discomfort on his left temporo-mandibular joint. In Mr. Vella’s opinion the medical record demonstrated that the plaintiff had suffered post traumatic stress disorder from the date of the accident on the 21st March, 2011, to the 5th October, 2012.
27. The plaintiff was re-examined by Mr. O’Callaigh on the 13th November, 2013. He noted that the plaintiff clinically continued to have a click in his left jaw on opening his mouth. The plaintiff advised him that this was getting better and he stated that it did not bother him too much. The plaintiff also complained of occasional discomfort in his left jaw. Mr. O’Callaigh noted that the plaintiff had been given some jaw exercise which caused the clicking to disappear. He found that the plaintiff’s muscles of mastication were normal. On this occasion Mr. O’Callaigh considered that the persistent discomfort in the plaintiff’s left jaw was most likely secondary to work stress which the plaintiff was then experiencing.
28. The plaintiff was seen by Dr. Aboud on the 21st November, 2013. He noted that the plaintiff still had clicking in his jaw on the left side. He records that the plaintiff’s mood was stable but he was still taking two types of anti-depressants, an anti-anxiety tablet and a sleeping tablet. Dr. Aboud considered that the plaintiff was continuing to improve. The plaintiff complained of insomnia, anxiety, depression and early morning waking. Dr. Aboud concluded that the plaintiff was under considerable work stress at the time and that this stress was exacerbated by the stress of the pending court hearing. He noted that the plaintiff had attended for psychotherapy and considered that additional psychotherapy on a monthly basis for a further year would be of assistance to him.
29. A very short letter from Ms. Elizabeth Buckley M.I.A.C.P. dated the 1st January, 2014, was produced in evidence. This records that the plaintiff had been referred to her by Dr. Aboud for [psychological] counselling to assist him in working through the effects of the assault on him. She stated that he had attended for a total of sixteen sessions ending on the 15th June, 2012. In his report of the 22nd November, 2013, admitted into evidence with other medical reports, Dr. Aboud suggested that perhaps the specialist opinion of a psychiatrist might be of value. If any such was obtained it was not produced in evidence by any party during the hearing.
30. I am satisfied that as of the date of this judgment the plaintiff has recovered from the physical and mental injuries suffered by him as a result of the unexpected and vicious assault on him by the second defendant on the 21st March, 2011. I am satisfied on the evidence that there will be no future adverse sequelae. The court awards the plaintiff damages in the sum of €28,000 for the pain and suffering which he has endured to date. Special damage has been proved in the sum of €5,984. There will therefore be a decree in favour of the plaintiff for €33,984 against the first defendant and the second defendant.
Clohessy v Legal Aid Board
[2014] IEHC 72.Judgment of Mr Justice Michael Peart delivered on the 20th day of February 2014:
1. The plaintiff has issued proceedings against all of the above defendants and has delivered a Statement of Claim.
2. The third named defendant, being the Minister for Justice and Law Reform, and the fourth and fifth named defendants, being Ireland and the Attorney General, have issued a Notice of Motion dated 18th January 2012 in which they seek orders dismissing the plaintiff’s proceedings against them because the plaintiff makes no claim seeks any relief against them; and in the alternative they seek orders striking out proceedings on the basis that they disclose no reasonable cause of action and/or on the basis that they are frivolous and/or vexatious within the meaning of Order 19, Rule 28 of the Rules of the Superior Courts.
3. The present proceedings arise against a background of protracted dispute in relation to land which was litigated between the present plaintiff’s father and the present plaintiff going back to 2001. The plaintiff’s father was legally represented by solicitors employed by The Legal Aid Board which issued the necessary legal aid certificate in that regard.
4. The Statement of Claim is a lengthy, detailed and carefully prepared to document and it makes a number of allegations against the Legal Aid Board arising out of what is alleged to be a failure by it to properly assess the true nature of the claims being made against the present plaintiff by his father, failure to properly take into account when assessing the means of the plaintiff’s father the fact that he had deliberately reduced his assets by placing them in a joint bank account with his daughter the fifth named defendant for the purposes of obtaining a legal aid certificate. It is also pleaded that the Legal Aid Board never made any attempt to properly determine whether the plaintiff’s father had previously disclosed to the Department of Social and Family Affairs that he was not the owner of any lands at Ballincurrig, Co Cork.
5. In addition to the claims against the Legal Aid Board in relation to the granting of a legal aid certificate to the plaintiff’s father, the plaintiff in the present proceedings alleges that “the litigation instituted and maintained by the first named defendant for 9 years against this plaintiff was a champertous arrangement for the ultimate benefit of its client Peter Clohessy (now deceased) and the fifth named defendant who benefited from the fact of having the State finance the costs of the litigation”.
6. In addition, he alleges that the Legal Aid Board, through its servants and agents, between 2001 and 2010 “concocted, instituted, and unlawfully maintained litigation for Peter Clohessy (now deceased) based upon unfounded, misleading and fraudulent facts”. Specifically, it is pleaded that the Legal Aid Board failed in its duty of care “by embarking on litigation against the plaintiff on or about the 31st July 2001 when it was aware that its client Peter Clohessy (now deceased) and his natural daughter Valerie Coleman, the fifth named defendant, had been previously legally advised against attacking the Deed of Patrick Clohessy …”. There are other parts of the Statement of Claim in which further allegations are made against the Legal Aid Board.
7. In addition to containing allegations and claims against the Legal Aid Board, there are allegations and pleas made against the sixth, seventh and eighth named defendants.
8. But nowhere in the Statement of Claim is there any allegation made against any of the third, fourth or fifth named defendants, and no reliefs are sought against any of them specifically.
9. At paragraph 10 of the Statement of Claim, it is simply pleaded in respect of the third named defendant that he is appointed by the Government of Ireland and that “its mandated statutory functions are many and varied including the overseeing of the proper lawful functioning of the statutory bodies under its ministerial control which includes the Legal Aid Board its servants and agents, and the employees of the Court Services working within the office of the County Registrar in so far as those functions relate to an executive function of the Government performed by the Courts Services”.
10. At paragraph 11 of the Statement of Claim, it is pleaded in respect of the fourth and fifth named defendants (Ireland and the Attorney General) that “the Attorney General advises the Government in matters of law and legal opinion, parliamentary drafting, statute law revision, and has as part of its office and under its umbrella the office of the Chief State Solicitor whose function includes providing a solicitor service to its principal clients, which are all government departments, the Director of Public Prosecutions, and the Garda Siochana.”.
11. It seems clear to me, and it has been so is submitted, that the only justification for including the third, fourth and fifth defendants is on the basis of some vicarious liability for the actions of the first named defendant. The plaintiff has submitted that ultimately Legal Aid Board is responsible to and controlled by the Minister for Justice and Law Reform, and must ultimately be liable for the actions of that Board. However, it is clear from the Civil Legal Aid Act, 1995 that while the Minister may, by order, from time to time as occasion requires, issue to the Board such general directives as to policy in relation to legal aid and advice as he or she considers necessary, the Board nevertheless is independent in its functions. In fact, Section 3 (2) of the Act provides:
“(2) the Board shall be a body corporate with perpetual succession and an official seal and power to sue and be sued in its corporate name and, with the consent of the Minister, to acquire, hold and dispose of land or an interest in land or rights over or in respect of land and to acquire, hold and dispose of any other property.”
In addition, Section 7 (3) of the Act provides;
“Nothing in this Act shall be construed as enabling the Minister to exercise any power or control in relation to any particular case with which the Board is or may be concerned.”
12. I am completely satisfied that the third, fourth and fifth named defendants, being the applicants on foot of the present Notice of Motion, should not be required to remain in these proceedings and to defend them given that no claim is made out against them and no relief is sought against them. Any claims being made in these proceedings by the plaintiff are in reality aimed at the other defendants against whom and in respect of which reliefs are sought and claims are made. It would be oppressive and unfair, and therefore unjust, that these three defendants should not be permitted to have the proceedings struck out as against them.
13. I will therefore make the order is sought, namely striking out these proceedings as against the third named defendant, being the Minister for Justice and Law Reform, the fourth named defendant, namely Ireland, and the fifth named defendant namely The Attorney General, and I do so on the basis that no reasonable cause of action is disclosed on the pleadings in respect of the defendants.
Hickey v McGowan
[2017] 2 I.R. 196
Judgment of O’Donnell J. delivered the 9th February of 2017
1 The emergence of the phenomenon of historic sexual abuse of children, and in particular abuse carried out by clergy and members of religious orders, has had a profound impact in many countries around the world, not least Ireland. That impact has also been felt in the law, which has struggled to deal with the very many issues thrown up by proceedings both civil and criminal. In the field of criminal law, the prosecution of offences alleged to have occurred many years previously, on extremely limited evidence, sometimes in circumstances where evidence of the principal complainant has been the product of a process of recovery of memories through therapy, raises many issues. In civil cases different though no less intractable problems arise. First, and most obviously, I think it is now well accepted that a feature of abuse committed against young children is that it may take considerable time for a victim to be in a position to acknowledge the fact of abuse, and be prepared to institute proceedings. Indeed this was treated as almost a matter of judicial knowledge in the judgment of Murray J. (as he then was) in the important case criminal law case of P O’C v. DPP [2000] 3 I.R. 87, at p.105. However, the lapse of time which often occurs between the matters complained of, and the bringing of proceedings, raises issues not simply of the Statute of Limitations, and of the fairness of proceedings, but also, the less well recognised practical problems of identifying a defendant against whom an action obtained and who or which may not have sufficient assets to meet any claim for damages. It is in the nature of claims such as these that they will involve a complaint of abuse by an adult against a young child, some time ago. Almost inevitably, defendants against whom proceedings are now sought to be brought, may be old, and in some cases deceased, or may have few assets, and therefore, it either may not be possible, or practical to bring proceedings and maintain them to conclusion.
2 As a result, proceedings are often most vigorously contested not between the alleged victim and the abuser, but rather between the victim, the claimant, and an institution which can be a corporate body, the State, or a body with the benefit of an insurance policy – and all of which have in common that they may have a longer life expectancy than the individual whom it is sought to make responsible for the wrongdoing. There is something questionable, at least in my view, in companies and institutions being made liable long after the event for matters, in respect of which no claim could now be brought against the persons who actually perpetrated the wrongs, but that is perhaps an unavoidable consequence of different rules of law relating to the time limit for claims being brought against the estates of deceased persons, and the legal status of an incorporated body. It is however unavoidable that claims relating to historic matters such as those which occurred in this case more than 40 years ago, will encounter significant additional hazards over and above the inherent difficulties of proof which might arise even in cases where the alleged abuse occurred recently.
3 The question raised in this case of the potential liability of a religious order or its members at any identified point in time for wrongdoing carried out by another member raises complex questions, some of which have been the subject of extended analysis in the Supreme Courts of a number of common law countries. Among those issues questions of the limits of the developing law on both limbs of vicarious liability: first the person or persons who can be liable without individual fault or culpability on their part, for the tortious acts of another; and second, the particular acts for which a person or body may be vicariously liable. Behind both these questions lies a difficult question as to the legal status of a religious order, and its liability, or the liability of its members, for wrongdoing perpetrated by another member.
4 These are substantial and difficult issues which have been the subject of judgments in other jurisdictions of the common law world without any coherent or consistent pattern emerging. It will be necessary to address some of these issues later in this judgment. However it seems unlikely that any Supreme Court which is engaged with the issues which arise in this case, has been confronted with a factual record and procedural history as fragmentary and unsatisfactory as that in this case. Accordingly, it will also be necessary to deal with some issues of procedure and evidence. In order to understand both the complex issues of law which are thrown up by this case, and the difficulties of procedure which stand in the way of addressing those issues, it is necessary to set out the facts and procedural history in some detail.
The Facts
5 The underlying facts of these proceedings have been set out in a judgment of the High Court (Ó’Néill J.), [2014] IEHC 19, delivered on the 24th of January, 2014. In essence the plaintiff was born in 1960, grew up in Sligo Town and attended St John’s National School for four years. For his last three years at the school from 1969 to 1972, he was taught by the second named defendant who was then a Marist Brother. The first named defendant is the present Provincial of the Marist Order. By modern standards there were a high number of pupils, in excess of 50 and sometimes over 60, in the class attended by the plaintiff, and taught by the second named defendant. The classroom was crowded and there were pupils’ desks immediately in front, and sometimes at the side, of the teacher’s desk.
6 It is unhappily the case that the courts are now familiar with the accounts of child abuse which can give rise to proceedings in both civil and criminal law. Many of them follow a depressingly familiar pattern. What is perhaps unusual about this case is that it was alleged by the plaintiff and other boys in the class that the abuse occurred in the classroom. The plaintiff contended that he would be instructed by the second named defendant to come to the top of the class, close to his desk, on the pretext of reading to the class or being assisted in learning by the second named defendant. The second named defendant held the plaintiff very close to him and would rub his legs which evolved into fondling of his anus and genitalia, initially outside his clothes but then inside his clothes, and sometimes inserting a finger into the plaintiff’s anus. Sometimes the plaintiff described the second named defendant placing a gown or cape type garment which he sometimes wore around the plaintiff to obscure his activities from view. On one occasion, the plaintiff said the second named defendant placed what the plaintiff described as his “belt” around the plaintiff securing him to the second named defendant. The plaintiff said these activities occurred several times every week and they were a cause of great upset to the plaintiff and that he was powerless, in the context of what was described as the position of authority of the second defendant and his close relationship with the plaintiff’s family, to do anything about it, and that he lacked the language to express his distress.
7 It is the nature of sexual abuse that it often occurs in private and secluded circumstances. Here, however it was alleged by the plaintiff, and found by the High Court, that the abuse took place largely in public and significantly the plaintiff’s evidence in this regard was corroborated by four other boys who had been in the class. Again, somewhat unusually, the alleged abuser, the second named defendant, gave evidence and denied any abuse. The High Court judge accepted the evidence of the plaintiff and the degree of corroboration provided by the evidence of the other boys, and rejected the second named defendant’s denials. Accordingly he concluded that the plaintiff had indeed been abused by the second named defendant. Although these matters were the subject of considerable contention during the course of the trial, and occupied much attention during it, they are not now in issue for the purposes of this appeal and the matters debated between the first named defendant and the plaintiff. Accordingly, the starting point for this Court, is the finding that the plaintiff was abused by the second named defendant.
8 The trial judge accepted that although the plaintiff had no memory of the events until contacted by the gardaí in the course of a criminal investigation, nevertheless it is now clear that these matters had a significant impact upon him and his life and indeed that the fact that the plaintiff blocked the matter out of his memory illustrated how traumatic the abuse was for him. In the circumstances the High Court assessed general damages against the second defendant at €250,000 to date, and €100,000 in respect of general damages in the future, totalling €350,000. However, that brought the Court to the issue which has been central to the appeal, as to the liability of any other party, and in particular the first named defendant, for the abuse committed against the plaintiff. In order to consider that matter, and in particular the claim that the first named defendant was vicariously liable for the damage suffered by the plaintiff, it was necessary to examine the status of the first and second named defendants vis-à-vis each other, and the position of the second named defendant in the school, and the contractual and other relationships governing his position.
9 The evidence in this regard was fairly scanty. It is however not now in dispute that at the relevant time between 1969 and 1972, the second named defendant was a brother in the Marist congregation. As such he had taken vows of chastity, poverty and obedience. The Marist congregation had a hierarchical structure which was international, provincial and local. The second named defendant was subject to the authority of the Superior in the house to which he belonged. The congregation of Marist Brothers was divided into provinces, each province having at its head a provincial. St. John’s National School in Sligo was a national school subject to the prevailing legal regime for the governance of national schools discussed in the judgments of the Supreme Court in O’Keeffe v. Hickey [2009] 2 IR 302. Evidence was given by Father Hever, the current administrator of the cathedral parish in Sligo, in which parish St. John’s National School was located. The administrator of the parish on behalf of the Bishop, who was the patron, was the manager of the school, and it was he who discharged the function of legally appointing teachers to the school, including the principal. The curriculum pursued and the academic standards required was regulated by the Department of Education which operated the school inspectorate system.
10 In the words of the trial judge, the school was “a Marist school” in the sense that the principal was a Marist Brother and the teachers in it at that time were nearly all Marist Brothers. They were selected for their positions, and directed to take up those positions, by the provincial of the Marist Brothers in Ireland. That congregation was dedicated to the care of the young and in pursuit of this primary objective, the principal activity engaged in was teaching. In essence therefore, the school was a national school with a manager who was the legal employer of teachers: those teachers were supplied by the Marist Order. The trial judge concluded that the day to day control of the activity of a teacher would have rested exclusively within the realm of the Marist congregation; initially between the teacher and the principal of the school, and if issues were not resolved within that relationship, then within the hierarchal structure of the Marist Order. Only in the extraordinary circumstances of a Marist Brother defying the authority of his superiors in the congregation would it have been necessary, the trial judge considered, to have involved the manager of the school to resolve problems or difficulties in connection with the discharge by the teaching brother of his teaching duties. The judge considered that the Marist congregation had therefore full control on a daily basis over the management of the national school in the relevant years.
11 The trial judge referred in his judgment to a then recent decision of the United Kingdom Supreme Court in the case of Catholic Child Welfare Society and Ors. v. Various Claimants (FC) and Ors. [2012] UKSC 56 (“CCWS”) which had been delivered on the 21st November, 2012, very shortly before the hearing in this case commenced. There is no doubt that the High Court relied heavily upon the analysis in that judgment. Indeed the appellant contends that in the absence of an adequate evidential foundation in the case itself, the plaintiff resorted to the CCWS case not just to supply a legal analysis for imposing liability but also to fill the evidential gaps in the case. In the event, the High Court concluded that the Marist Order had control of the school on a day to day basis, and that “the well-known identity of the Marist Congregation can [not] simply disappear in to the sands of unincorporated association”. Accordingly the judge stated at paragraph 69:
“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.”
12 The High Court then turned to the plea made on behalf of the first named defendant, and held that the relevant manager was also vicariously liable as the effective employer of the second named defendant. However the plaintiff had not sued the manager, and the action was now statute barred by virtue of s.9(2) of the Civil Liability Act 1961, and the liability of that party was to be attributed to the plaintiff by virtue of the provisions of s.35(1) of the Civil Liability Act 1961 which, so far as is relevant, provided that for the purposes of determining contributory negligence where the plaintiff’s damage was caused by concurrent wrongdoers and the claim against one had become statute barred, the plaintiff should be deemed responsible for the acts of such wrongdoing. The High Court judge concluded that the manager was however only 10% responsible, and accordingly the damages against the second named defendant were reduced by €35,000 to €315,000.
The Procedural History
13 The progress of this case has been a depressing story of inadequate pleading, missed opportunities, lack of clarity, confusion and error. The plaintiff had been living in Cornwall in the late 1990’s and was alerted to the events in his childhood by the visit of the gardaí then investigating allegations of child abuse in the school. He cooperated with the inquiry, became a witness in the criminal proceedings, and at some stage instructed solicitors to initiate civil proceedings. A letter was prepared addressed to the first named defendant (the Provincial), the second named defendant (the perpetrator) and the Attorney General, Ireland and the Minister for Education (the State parties). It does not appear however that the letter was ever sent to the first named defendant so he was not alerted to the claim at that time. A plenary summons was then issued on the 6th of February 2001 naming the five parties above as defendants. It appears however it was only served at the time on the second named defendant. Accordingly the state parties were unaware of the proceedings, and the first named defendant and accordingly the Marist Order more generally, were unaware of any claim by the plaintiff, until 2008. After this fitful and sporadic start the proceedings fell into abeyance. A statement of claim was sent to the State defendants with a demand that a defence be delivered. The defendants replied pointing out reasonably that no plenary summons had ever been served. Eventually in 2008, the plaintiff changed solicitors. The new solicitors brought an application to extend the time for service of the plenary summons. However they decided not to pursue a claim against the State defendants in light of the judgment of this Court in O’Keeffe v. Hickey now reported at [2009] 2 IR 302. In effect therefore the renewal of the plenary summons was critical to the claim against the first named defendant. It bears noting that seven years had been spent during which the sum total of the progress of the claim against the first named defendant was that a letter was prepared but not sent, and a plenary summons prepared but not served. This was in the context of a claim related to a period almost 30 years before the original date of the preparation of the plenary summons. The High Court nevertheless renewed the plenary summons and permitted service on the first named defendant. The first named defendant brought an application to set aside the order renewing the plenary summons, but this was unsuccessful.
The manner in which the claim was pleaded against the first named defendant.
14 The statement of claim identified the first named defendant as a Provincial of the Marist Order. The claim made against the first named defendant was that the Order was responsible for the wrongdoing of the second named defendant who was a member of the Order. This was a basic, not to say a rudimentary form of pleading the case. The defence by contrast was a much more elaborate document. It raised a number of issues but in respect of the issue which has most occupied time in this Court, the critical plea is that found at paragraph four:
“The Plaintiff discloses no cause of action as against the First named Defendant on the basis inter alia that the religious order described as the Marist Brothers is an unincorporated association, whose members are not liable in law, either directly or vicariously, for any act or default of each other. Further, and without prejudice to the foregoing, the current members of the Order are not liable directly or vicariously for any act or default of any member of the Order committed prior to their becoming members thereof.”
15 With the wisdom of hindsight it is possible to see, even at this stage and in this respect, that the issues between the parties had not been identified with the clarity which is desirable in every case, but essential in a case raising novel and complex issues of law. At the hearing we were also informed that there was an exchange of correspondence in which the plaintiff’s solicitors sought agreement from the first named defendant’s solicitors, that the first named defendant could be treated as a representative of the Marist Order. This was refused by the solicitors on behalf of the first named defendant. If the plaintiff’s advisors had in mind some form of obligation to compel this course, then nothing ensued and the proceedings meandered onwards. This pattern of sporadic and somewhat ineffectual efforts on behalf of the plaintiff which were met with a barrage of technical complications raised by the first named defendant characterised the progress of this case. However, a defendant is entitled to be punctilious, technical and difficult, though such a course is not without risk. There is no such excuse for ineffective efforts on behalf of a plaintiff. The terms of paragraph four of the defence, and the uncompromising position taken in the correspondence were unmistakable signals that real and difficult issues were going to be raised by the defendant and that the plaintiff could not rely on concessions or agreements or some tacit understanding that the first named defendant could be taken to represent the Marist Order. Questions as to whether the correct defendant has been sued are major traps for plaintiffs and their advisors. Such issues, particularly in a case where there has been a significant lapse of time, require to be addressed, but in this case it appears they were not.
The Hearing
16 The hearing commenced in November 2012, and occupied eight days in the High Court. The plaintiff’s case focussed essentially on matters of fact. This may have been a consequence of the fact that unusually the second named defendant was represented in the proceedings and adopted an approach bearing similarities to the defence in the criminal trial and which involved a stubborn refusal to concede anything. It may have been assumed, therefore that the difficult issue was proof of abuse as a matter of fact, and that once established it would be follow that the first defendant would be liable. However, the first named defendant for its part raised a number of technical and substantive issues. Counsel for the first named defendant has suggested that the emergence of the judgment in the CCWS case just days before the commencement of the hearing was treated by the plaintiff as a form of deus ex machina which solved all legal problems. Counsel for the plaintiff in this Court (who it should be said was not involved in proceedings before this appeal, and who argued the appeal with skill and tenacity) sought to advance the narrow argument that while the evidence was sparse, there was enough evidence to permit the High Court to reach the conclusions it had, and those conclusions were now effectively beyond challenge in this Court. I cannot agree that this narrow approach is a satisfactory way to resolve an already tangled case. It is necessary therefore to address in some detail the argument advanced by the first named defendant.
17 The evidence on the question of the organisation of the Order and the interaction of the Order with the school, was sparse indeed. Discovery had not been sought. The only evidence on the issue seemed to be gleaned indirectly from the evidence of the second named defendant himself, and from Canon Hever who was the manager of the school. Apart from seeking to exploit evidence from these witnesses (who had not been called by the plaintiff) the plaintiff adduced direct evidence from a theologian recruited apparently only a day or two before the High Court hearing began. That evidence was at a level of exceptional generality about the constitution of religious orders. Given the dearth of evidence the first named defendant argues that the plaintiff and subsequently the High Court, were driven to rely on the decision in CCWS not just as providing a template for legal analysis, but even to fill the evidential gaps in the case. There is in my view more than a little merit in this criticism.
18 The first named defendant argues that O’Keeffe v. Hickey requires “intense concentration” on the facts of the case to allow a conclusion to be drawn on the controversial issue of vicarious liability for sexual abuse carried out by another party. Nothing further from such intense scrutiny of the facts could be imagined, it was said, than the threadbare fragments of evidence gathered together in this case. The first named defendant contends that there was simply no evidence allowing the Court to conclude that the school was under the control of the Marist Order, particularly when there was a manager in place who had a legal obligation to run the school and who was in law the employer of the second named defendant. Furthermore, the first named defendant argued that the CCWS case was itself in fact a vivid illustration of the inadequacies of the plaintiff’s case here. There, a large number of individual defendants had been sued, discovery obtained, and detailed evidence given as to the operation of the school and the involvement of the various parties in it. In addition, important concessions were made by the representatives of the religious order in that case. Furthermore, and in any event, the defendant contended that the factual and legal circumstances involved in the CCWS case, were markedly different. If, as was agreed, the issue involved intense concentration on the facts, then it was argued it was an impermissible departure from such an approach, to treat the CCWS case as analogous to this. In particular, CCWS involved a residential school for troubled children who were particularly vulnerable. The staff, in that case the religious brothers, were on the site and in close contact with the children 24 hours a day, and provided a form of parental care. Here by contrast, the case involved a standard national school which was a day school in a substantial provincial town in Ireland. There was no suggestion that the children were particularly vulnerable. Contact was during school hours and as teachers. It negated the intense scrutiny approach emphasised by O’Keeffe v. Hickey if fundamental factual distinctions like this were to be ignored. Finally and in any event the first named defendant argued that even if the Court were to consider that the facts of CCWS were sufficiently close to this case to make it available as a precedent, the Court should nevertheless not adopt the approach in CCWS, which, it was argued was unduly vague and unprincipled.
19 The CCWS case is undoubtedly an important case in a sequence of recent cases at the highest level in courts of common law countries concerning the difficult question of liability for sexual abuse of children. However, a useful starting point in this jurisdiction is in my view the decision of this Court in O’Keeffe v. Hickey. That case involved a claim against a school teacher and the State parties, for sexual abuse carried out in a national school. Judgment in default of pleadings was obtained against the school teacher. The only issues therefore remaining in O’Keeffe v. Hickey were in regard to the direct liability or the vicarious liability of the State parties. Significantly, proceedings had not been issued against the manager or patron of the school, there, as in most cases, the local parish priest and bishop respectively. The case involved a very careful analysis of the unique structure of national schools in Ireland pre-dating independence. The High Court dismissed the plaintiff’s claim for direct liability on the part of the State parties for negligence in the management or inspection of the school. That decision was not appealed. Accordingly the only issue in the Supreme Court was whether the State was vicariously liable for the wrongdoing of the principal which for the purposes of the proceedings was now established. Geoghegan J. was prepared to hold that the State parties were vicarious liable for the sexual abuse. The majority of the Court however dismissed the claim. Two substantial judgments were delivered by Fennelly and Hardiman JJ. which came to the same result but for very different reasons. It is I think clear that it is the judgment of Fennelly J. (with whom Murray C.J. and Denham J. (as she then was)) which represents the majority view on the law of vicarious liability for sexual abuse. However, Hardiman J.’s powerful judgment (with which Murray C.J. also agreed) is in my view very useful in identifying the critical issues argued and determined in the Supreme Court, and casts a useful light on the judgment of Fennelly J.
20 Hardiman J. reviewed the development of the law of vicarious liability. He pointed out that vicarious liability represents liability without fault for the wrongful acts of another. It is a threshold question in any case in which the law of vicarious liability is sought to be expanded, to determine why a person or body who may be liable if shown to be at fault, should be made liable without fault or culpability of any kind. The classic case of vicarious liability is the responsibly of an employer for the acts of an employee. There is of course no difficulty in imposing liability on an employer whose employee acts on his or her instructions. But liability could also attach for unauthorised acts, and indeed acts contrary to the employer’s instructions. The test was first formulated by the distinguished authors of Salmond and Heuston on the Law of Torts, and repeated for much of the 20th century. It is set out, for example, at pp. 521 to 522 of the 19th edition, Heuston & Buckley, Salmond and Heuston on the Law of Torts (London: Sweet and Maxwell, 1987) 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 Pacific Railway Co v. Lochart [1942] AC 591 at 599.”
This test contemplates some liability for unauthorised acts, but is still quite strict: the act may not have been expressly or impliedly authorised by the employer (indeed may have been forbidden by him or her) but liability may attach but only if the act is viewed as a “mode – although improper mode – of doing what has been authorized”. It is apparent that sexual abuse of a pupil by a teacher cannot on any version be considered to be merely an improper mode of doing the authorised task of teaching and nurturing a child. It is indeed the antithesis of what was authorised and intended, and amounts to a serious criminal offence. It is apparent therefore, that liability cannot attach to an employer for sexual abuse if the Salmond test is maintained.
21 In essence, Hardiman J. considered that the Salmond test should be maintained as he considered that the policy justifications underpinning it were justified, whereas he was sceptical of more expansive approaches which had found favour in other jurisdictions and among textbook writers on the basis that they ensured recovery of damages by a plaintiff who had suffered significant injury. At paragraph 41 of the judgment he said:
“I do not feel the unqualified enthusiasm which the authors evince for what they believe to be the modern theory of vicarious liability. The fact that a person or entity may have some resources (if only a private dwelling house) does not in and of itself, in my opinion, convert him, her or it, into a “deep pocket”. More fundamentally, even if the pocket is genuinely deep, that fact cannot in ordinary justice support the imposition of liability on such a person where it would not be imposed on a poorer person. And it is, with every respect, fatally easy for a writer in his study to dismiss another person as a “deep pocket” when that other is not such and does not so regard himself.”
(p.317)
22 Fennelly J.’s judgment can usefully be read in the light of the trenchant position adopted by Hardiman J. Fennelly J. pointed out that it was already well established law that an employer could be vicariously liable for the wrongful acts of an employee including criminal acts: Lloyd v. Grace, Smith & Co. [1912] 1 A.C. 716 and Johnson & Johnson (Ireland) Ltd. v. C.P. Security Ltd. [1985] I.R. 362. On balance, Fennelly J. was prepared to apply the close connection test which seemed to have been adopted by the majority of the House of Lords in Lister v. Hesley Hall Ltd. [2002] 1 AC 215 and the majority of the Canadian Supreme Court in Bazley v. Curry (1999) 174 D.L.R. (4th) 45:
“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. . . The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J. [in Delahunty v South Eastern Health Board [2003] 4 IR 361] provides an excellent example of a practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 D.L.R. (4th) 45 the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.”(p.378)
23 The power and depth of analysis in both judgments is apparent, but the significant divergence between them is obscured somewhat by the fact that the two judgments came to the same conclusion in O’Keeffe v. Hickey: the State parties were not vicariously liable for the criminal acts of the principal school teacher. On the facts of the case, it might be said that there was a connection and perhaps even a close connection between the abuse and the teaching – although as Fennelly J. observed the abuse took place during private lessons outside school time – but there was no sufficiently close connection between the State parties who were the defendants and the teaching in question. The result of the case was therefore heavily influenced by the distinctive structure of national school teaching in Ireland. In particular the existence of a management system which had both control over the teacher and was his employer, was particularly important. The existence of this employer weighed heavily against the State having vicarious liability on the analysis in both judgments.
24 Notwithstanding this coincidence of result, it is apparent that the reasoning of the two judgments diverges sharply and in an appropriate case would lead to quite different results. The debate between the two judgments can be seen more clearly if the issue of the liability of the school manager, which lay in the background to O’Keeffe v. Hickey, is considered. Although both judgments were careful not to reach any concluded position in that regard in the absence of any defendant in a position to argue the case, it is certainly much more likely that such a manager could have been found liable under Fennelly J.’s close connection test, and unlikely, perhaps highly unlikely that a manager could be found liable under Hardiman J.’s adherence to a strict “unauthorised mode of performance of the task” test. I think it is clear however that the judgment of Fennelly J. must be taken now to represent the law. This is not simply because it was agreed to by two other members of the Court, but, it must be recalled, Geoghegan J. delivered a judgment in which he would have dismissed the appeal and held the State parties to be vicariously liable.
25 However as already observed, in my view, the judgment of Hardiman J. remains important not simply because of its rigorous analysis, but also because it casts light on the judgment of Fennelly J. Therefore when Fennelly J. states that everything depends upon the facts of the case, and that the facts must be carefully analysed, he considered that the test he adopted was more expansive than that asserted by Hardiman J., but not decisively so. An employer may (not must) be liable for sexual abuse carried out by his employee or a person for whom he or she is vicarious liable.
26 A number of conclusions can be drawn from O’Keeffe v. Hickey which are important for this case. First, as already observed, the judgment of Fennelly J., and the close connection test must be taken to represent the law in Ireland. Second, even though there was not a residential component to the school and the children were not particularly vulnerable, it seems clear that that test was satisfied in this case. The abuse took place during the very act of teaching in the classroom. Indeed, this seems to have been tacitly accepted in this case insomuch as the case proceeded on the assumption that the manager employer was vicariously liable for the abuse. It follows therefore that there was a close and sufficient connection between the teaching carried out and the criminal abuse. Third, and perhaps most importantly, the issue which divided the Court in O’Keeffe does not therefore arise here. The question is not whether the act done is one for which a person is otherwise vicariously liable for the acts of another should be responsible i.e. whether on this occasion the employer or anyone else should be liable for an act of sexual abuse. That issue must be taken to be satisfied in this case both on an application of the close connection test in general, and the attribution of liability to the manager in particular. The question here for determination is a separate and perhaps anterior one: is the first named defendant either on his own behalf or as a representative of the Marist Order vicariously liable for the acts of the second named defendant (including in this case the sexual abuse)? That question, as we shall see, leads to another question as to the legal nature of a religious order, but for present purposes it is easier to treat the first named defendant Brother McGowan as essentially indistinguishable from the Order itself. The question therefore becomes whether the Order (or its members) is vicariously liable for the actions of a member. Taking the classic case of vicarious liability as the relationship between an employer and an employee, the question becomes whether the relationship between an order (or its members) and another member is such to give rise to vicarious liability for a wrongful act, it being accepted that if vicarious liability arises, it may, in an appropriate case, extend to acts of sexual abuse. That issue (and the related issue of the legal status of a religious order) were the subject of consideration in the CCWS case and it is not surprising therefore that the High Court judgment under appeal relied on the reasoning of the judgment of the Supreme Court of the United Kingdom, as indeed was stated expressly in the passage of the judgment set out at paragraph nine above. It is necessary therefore to consider that judgment in some detail.
Catholic Child Welfare Society and Ors. v. Various Claimants (FC) and Ors. [2012] UKSC 56.
27 The plaintiffs in these proceedings were pupils at a residential school in Yorkshire. Originally the school had been a reformatory, later an approved school for young offenders, and latterly an assisted community home for children in the care of the local authority. The school had been established initially by Catholic benefactors and at the relevant time was managed by two diocesan bodies responsible to the diocese of Middlesbrough who were the legal employers of the teachers and staff working there. The Institute of the De La Salle Order (referred to in the judgment as “the Institute”) had been invited by the diocesan bodies to run the schools. Members of the Order lived on the grounds of the school. The pupils were self-evidently vulnerable children placed in their care. However over a period of some 20 years boys were abused in particular by the headmaster who was later convicted of a series of offences in respect of his activities at the school. It is alleged that other pupils were abused by another brother. There were over 170 plaintiffs and the proceedings were in the nature of a test case.
28 In the proceedings the claimants sued the principal perpetrator as the direct tortfeasor and another 35 defendants who it was alleged were responsible in law for his wrongdoing. Those defendants could be divided in to two broad groups: the diocesan bodies who were the legal manager of the school and employer of the staff (“the diocesan bodies”), and members of the De La Salle Order (“the Institute”). A preliminary issue was directed to be tried on the vicarious liability of both sets of defendants. The High Court held that the diocesan bodies were vicariously liable for acts of abuse by staff but the Institute (or its members who were defendants) was not. This decision was upheld by the Court of Appeal. However, the Supreme Court of the United Kingdom in a unanimous decision, overturned the decision of the Court of Appeal and held that the Institute was vicariously liable along with the diocesan bodies for the sexual abuse carried out by the headmaster and other members of staff. There is a certain imprecision in the description of these defendants which, for reasons which will become clear, is unavoidable at this stage. However, for present purposes it can be said that the conclusion of the Supreme Court was that where sexual abuse was perpetrated on vulnerable children attending a residential school by a person employed by one body, and who was a member of religious order, both the employer and the order could be vicariously liable for that abuse.
29 The only judgment was that of Lord Phillips of Worth Matravers. He referred to a Court of Appeal decision in E v. English Province of Our Lady of Charity [2012] EWCA Civ 938 which had been decided shortly after the Court of Appeal decision in the CCWS case. The leading judgment in the E case had been given by Ward L.J., and to a large degree, Lord Phillips preferred the analysis in that judgment, to that of the Court of Appeal (and the High Court) in the CCWS case. The judgment commenced by observing that the Institute was as a matter of law an unincorporated association. However, he observed at paragraph 19 that “the law of vicarious liability [was] on the move”. The basic position as a matter of history was encapsulated in the “course of employment test”. Since that test had been developed however, the law had developed in a number of ways. Unincorporated associations had been held to be vicariously liable for the tortious acts of a member citing in this regard Heaton’s Transport (St Helen’s) Ltd. v. Transport and General Workers’ Union [1973] A.C. 15; Thomas v. National Union of Mineworkers (South Wales Area) [1986] Ch. 20, 66-7 and Dubai Aluminium v. Salaam [2003] 2 AC 366. Vicarious liability was possible even when the acts of the employee were unauthorised, in breach of duty to the employer, and even criminal. It was also possible for two (or more) defendants to be vicariously liable for the acts of another.
30 Any case of vicarious liability involves wrongful acts of one defendant (D1) and a determination that in addition another defendant (D2) who themselves are innocent of wrongdoing are nevertheless liable for the tort of D1. Lord Phillips explained that any determination of the existence of vicarious liability involved two separate but connected steps: firstly whether the relationship between D1 and D2 was such as to give rise to vicarious liability for any acts, and second, whether such liability could extend to certain acts or actions. The first question involved an analysis of the relationship between D1 and D2, and the second a consideration of the connection between the actions complained of and that relationship. Most focus in the CCWS case was upon the first question, that is the relationship between an individual brother and the Institute or Order. Lord Phillips also addressed the question of the status of a religious order, and as he described it, “the problem of the Institute” (Paragraph 27). This indeed had been a significant feature in the Court of Appeal decision which had held there was not a sufficiently close connection between the brothers of the Institute around the world and the torts committed by the brother teachers at the school in question to given rise to vicarious liability. This prompted Lord Phillips to raise the question of whether it was “right to treat the De La Salle Defendants as being simply an unincorporated band of brothers scattered around the world” (Para.27). This issue, as Lord Phillips noted, arose from the fact that the common law did not recognise the Catholic Church as a legal entity in its own right, but saw it as an unincorporated association with no legal personality and which held property through the mechanism of trusts. He addressed and resolved this question for the purposes of this case in three important paragraphs in the judgment:
“31 I can appreciate Hughes LJ’s difficulty in accepting that a De La Salle brother in Australia could be vicariously liable for the sexual assault by a brother at St William’s. Indeed, there is something paradoxical in the concept of an attempt to hold vicariously liable a world wide association of religious brothers, all of whom have taken vows of poverty and so have no resources of their own. So far as individual defendants are outside the jurisdiction this might also have given rise to an interesting question of conflict of laws. This is, however, a long way from the realities of these proceedings and Lord Faulks has not taken any point on the nature of the Institute.
32 It is open to the claimants on the pleadings to seek to establish vicarious liability on the part of an unincorporated association made up at the relevant times of the brothers world wide, or of members of the London Province, or of the England Province, or of the Great Britain Province. At the end of the day what is likely to matter will be access to the funds held by the trusts, or to insurance effected by the trustees. Whether one looks at the picture world wide, or within Great Britain, the salient features are the same. The Institute is not a contemplative order. The reason for its creation and existence is to carry on an activity, namely giving a Christian education to boys. To perform that activity it owns and manages schools in which its brothers teach, and it sends its brothers out to teach in schools managed by other bodies. The Institute is, for administrative purposes divided into Provinces, each administered by its Provincial. To carry out its activities it has formed trusts that have recognised legal personality. The trusts are funded in part from the earnings of those brothers who receive payment for teaching. The trust funds are used to meet the needs of the brothers and the financial requirements of the teaching mission.
33 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.” (emphasis added)
31 Treating the individually named defendants as if they were a single corporate body able to own property and possess substantial assets, the judgment then turned to the question of whether that body could be vicariously liable for the acts alleged in this case. The judgment observed that vicarious liability was a longstanding and vitally important part of the common law. In the majority of modern cases the defendant is not an individual but a corporate entity and vicarious liability was likely to be the basis on which the defendant was sued. He continued:
“The policy objective underlying vicarious liability is to ensure, insofar as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread. It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability.”(Para. 34)
32 Coming to the conclusion in relation to the CCWS case, Lord Phillips adopted much of the analysis in E v. English Province of Our Lady of Charity, albeit that case concerned the liability of a bishop for a diocesan priest. The “crucial features” identified were:
“that the priest was appointed in order to do the work of the church with the full authority to fulfil that role, being provided with the premises, the pulpit and the clerical robes. He was directed into the community and given free rein to act as representative of the church. He had been trained and ordained for that purpose and his position of trust gave him great power.” (Para. 48)
33 Lord Phillips considered that the case for finding vicarious liability was much stronger in the CCWS case than it was in E v. English Province of Our Lady of Charity. The features which were relevant in this regard were: (i) the Institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body; (ii) the teaching activity of the brothers was undertaken because the Provincial directed the brothers to undertake it; (iii) the teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the Institute; and (iv) the manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. Lord Phillips also suggested a simpler analysis at paragraph 61:
“Provided that a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage 1, just as in the case of the action of a member of a partnership. Had one of the brothers injured a pedestrian when negligently driving a vehicle owned by the Institute in order to collect groceries for the community few would question that the Institute was vicariously liable for his tort.”
The High Court Judgment
34 The High Court judgment expressly adopted the analysis in the CCWS case and in the passage at paragraph 69 of the judgment already quoted, treated the Marist Order as if it were a corporate body of which the first named defendant could be regarded as the representative. Indeed, the appellant submitted that the extent to which the High Court was forced to rely upon the judgment extended to utilising the judgment to supply some of the manifest inadequacies of the evidence in this case. In particular there was, it was argued, no evidence whatsoever as to the day to day running of the school and in particular the interaction, if any, between the Marist Order and the manager, and therefore no evidence to support the conclusion that the Marist Order was in control of the school or the teaching activity of its members in the school.
35 I agree that the evidence here directed to this issue was fragmentary and was not focussed on the important issue which now looms large in this appeal. I also agree that there was not any sufficient evidence for the conclusion that the Provincial of the Marist Order was in control of the teaching activities of the second named defendant. It would indeed be unsurprising if there was not a certain fluidity in the performance and allocation of roles in this regard in early 1970’s Ireland. However, I do not consider the Court can make findings as to the position in a particular school in a three year period between 1969 and 1972 without evidence directed to the issue. There is no doubt therefore that the plaintiff’s case would have been considerably stronger if he had shown that there was shared control, or even, which is not implausible, that at certain times the school was effectively run by the Marist Order. However it does not follow from this that the Court cannot make determinations on the precise legal issue which arises here. That question is the relationship between the wrongdoer and the person or body alleged to be vicariously liable for the wrongdoing.
36 Looked at in this way, it should be apparent that this is in fact not the most difficult issue in the case. There is evidence that Brother Cosgrove was a member of the Marist Order. It is accepted that the Order was a teaching order, and supplied teachers to the school. That was how Brother Cosgrove came to be in the school. Teaching was not simply an occupation, but an important and central part of the mission of the Order. The Order was established, and its members bound, not merely by rules, but solemn vows taken by them and considered sacred and binding. Those vows included chastity, obedience, poverty and celibacy. I think we are entitled to take cognisance of the fact that members of religious orders at that time normally wore habits of standard design, identifying them as members of orders, and indeed correspondingly reducing their individuality, while emphasising their part in a collective.
37 At a crude level the question of whether a relationship between D1 and D2 in any particular case is sufficient to give rise to vicarious liability can be addressed by asking how closely the relationship approximates to the classic case of employer/employee. Some of the cases have taken this approach. There is however in my view something slightly absurd in seeking to draw comparisons between the case of religious orders and businesses. Furthermore, the tests and language applicable when considering the case of employment and analogous relationships, such as “enterprise” and “risk” are not easily applicable in the case of religious orders. Indeed, to apply tests drawn from the relatively modern world of commerce and industry to religious organisations which have existed for centuries is in my view, to miss the sheer scale and impact of religious institutions on peoples’ daily lives, particularly in the Ireland of the first three-quarters of the 20th century. The relationship between members of an order and his or her fellow members and indeed the order itself was much more intense, constant and all pervasive than the relationship between an employer and an employee, or in the old language of the late Victorian cases, a master and his servant. Everything in the organisation of religious orders is directed towards emphasising the collective. The vow of obedience involves subjugation of individual will to that of the superior. The vow of poverty has the effect of making the member dependent upon the order’s collective resources. The vow of celibacy emphasises the focus of the member on relationships with the order and with God. The objective of teaching young people is not merely incidental to the work of an order, it is indeed the manner in which the order seeks to achieve its object. For a member of the order, teaching was not merely a job it was a religious vocation. There can no doubt that Brother Cosgrove was in the classroom in Sligo between 1969 and 1972 because he was a member of the Marist Order. That was known, understood and accepted by pupils and parents, and when such individuals looked at the various brothers who staffed the school at any given time, they saw, and were intended to see not just a teacher, but a Marist.
38 The relationship between members and the order, and the importance to the order of the role of members as teachers of young people, are matters which have no direct comparators in the secular world. Accordingly, I do not consider that there is anything inappropriate in addressing this question from the perspective of justice and fairness. This is not to reintroduce the unbridled discretion in individual cases so sharply criticised by Hardiman J. in O’Keeffe v. Hickey. Instead, a general question is raised in this case as to whether all persons similarly situated should be liable if certain facts are found. It would be surprising if fairness was not a component of that decision. It is perhaps conceivable that an onlooker might consider it not unfair that the only person liable for sexual abuse should be the perpetrator, and that these actions are so wrong, and outside contemplated activity, that they are the responsibility of the wrongdoer alone and no other body can be made liable for them without culpability on their own part, such as failing to act on complaints. This was the thrust of the judgment of Hardiman J in O’Keeffe. However that position is no longer possible and it is now clear that there can be vicarious liability without fault for acts of sexual abuse. If so the onlooker would surely struggle to understand that the only person or body who as a practical matter may be required to compensate a plaintiff abused in this way by a member of the Marist Order, in a school staffed by the Order, should be the local parish priest. Accordingly I conclude that in principle, once it is accepted there can be vicarious liability of acts of abuse a religious order (or its members) may be vicariously liable for acts of abuse which are sufficiently closely connected to the object and mission of the order.
39 I reach this conclusion adopting what I consider to be the cautious and incremental approach outlined by Fennelly J. in O’Keeffe, conscious indeed of the strength of the criticism of that approach contained in the judgment of Hardiman J. in the same case. 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, “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.
40 It is I think revealing that responsibility in the shape of the intentional torts, or fault, in the case of the more common, if sometimes hyper-exacting modern law of negligence, remain such an important part of the tort law system, which remains by far the most important mechanism for compensation for injury. Despite the theoretical arguments which have been advanced for over half a century for a general system of compensation without fault and burden spreading, whether by an insurance or State supported scheme, there has been a stubborn but persistent adherence to culpability or responsibility as an underlying justification for liability in tort. There is no perfect correlation between wrongdoing and injury, and persons may be guilty of serious wrongdoing which cause little injury, whereas persons committing trivial acts of carelessness can be held responsible for great damage; nevertheless the process of seeking and paying compensations seems to function on the basis that at some level it can be said that there is some culpability whether intentional or negligent on the part of the defendant, which justifies the imposition of the burden of compensation. This is of course an insight which is not limited to the common law world. However, the law also permits in certain circumstances liability without wrongdoing, intentional or careless. The common law developed by individual incremental decisions which are then tested by time, and if found satisfactory, and not altered by legislation, establish the law. In those cases of liability without fault which the law of tort permits, perhaps most obviously, the ancient rule in Rylands v. Fletcher, the law of agency, and vicarious liability in the context of employment, there are I would suggest, some reasons which justify the imposition of such liability, and which have been found sufficient at least at the practical level of not leading to a reversal of the law, whether by statute or through case law.
41 In most such cases of imposition of liability without individual culpability, to some extent at least it can be said that the defendant creates, or permits and often benefits from, a situation which carries with it the risk of injury or the wrongdoing by others. In the case of the employer/employee, the employee is in a position to commit the tort because he is employed and provided with equipment which he or she may misuse. The employer chooses the general activity and it is of value to him or her. To that extent it is perhaps not unfair that an employer should bear the risk of wrongdoing, even wrongdoing which he or she may forbid and indeed genuinely abhor. This is, I would add, irrespective of whether the employment is for profit or can be labelled an enterprise. In the context of this case, it is of course possible that in another life the second named defendant might still have been a national school teacher, but it is surely beyond argument that a large part of the reason why he was in an overcrowded national school room with young boys between 1969 and 1972 was because he was a member of the Marist Order, and that he and the Order considered that he was pursuing an important and central objective of the Order in teaching such children rather than merely providing a service to the manager of the school. The fact that here the abuse occurred in the very school room is important, and in my view a decisive feature in this case.
42 However, I would not, and with respect, adopt some of the rather freewheeling analysis advanced by the plaintiff, and adopted by the High Court, on the basis of aspects of the decision in CCWS. Vicarious liability is not on the move, at least not of its own volition. If it moves, it is by the decision of judges which must be reasoned and justified. The law of vicarious liability was relatively stable, narrow and well understood for most of the 20th century until recently, and much if not all of the development of the law has occurred because of the necessity of addressing the phenomenon of historic sexual abuse of children in an institutional context. There is in my view no discernible movement in the common law world to expand vicarious liability, and therefore liability without fault, on the basis merely of an ability to pay alone, and any such development would raise fundamental issues. Instead, there has been a number of carefully analysed, but not always consistent, attempts in the courts of the highest level in the common world, to provide a framework in which to address claims of historic sexual abuse.
43 I also doubt with respect, that the function of vicarious liability is to ensure that liability for a tortious wrong is borne by a defendant with means to compensate the victim. This can I think be said more accurately to be the function, or at least the aspiration, of the plaintiff’s lawyer. The function of tort law, and vicarious liability which is a part of it, is I think to identify a defendant who can justly be called upon to compensate an injured party. There remains in the real world however an unavoidable risk that the party or parties deemed liable by the law may not be able to meet an award, particularly when the award is sizeable and the wrongdoing occurred a considerable time ago by persons who may be deceased, or in institutions which may no longer exist, or for matters in respect of which insurance was not available, or if insurance was obtained, it may no longer be in place. If this results in victims not receiving compensation which is considered desirable, then that may be a matter for public policy more generally, but it may be beyond the reach of inter-party litigation and any possible development of the common law. These are problems that can arise in any claim, but are more likely to be encountered in cases that relate to events which occurred a long time ago.
44 While the issue was raised primarily in the context of the legal nature of a religious order, an issue which must be addressed later in this judgment, I do not think it is helpful to address any part of these issues on the ruthlessly pragmatic basis that what matters is access to funds held by a trust or to an insurance policy. Firstly, it remains the case in Ireland in my view, that it is not permissible to seek either to join an insurance company to a personal injuries action, or to address the question of the presence or absence of insurance in such proceedings. Strictly speaking the existence of insurance is irrelevant to the legal issues to be determined whatever its practical significance. The law is meant to apply equally to the rich, the poor, the insured and the uninsured, and questions of liability must be determined on that basis. Indeed, this is an important discipline when issues come to be addressed in the context of cases in which individual plaintiffs may have suffered serious and life changing injuries. More importantly, while it is important at the level of policy and legal history to acknowledge the interaction of insurance and liability, that insight is of little assistance here. Indeed, it is to reverse the natural order in which the issue should be addressed. A person is normally obliged to, or at least wise to, insure against a liability which he or she may have: if there is no liability, then there is no requirement to obtain insurance and indeed conceivably such insurance may not be available. The question of liability of an individual cannot therefore be determined by the existence of insurance against that risk.
45 At a more practical level, there is no necessary guarantee that any insurance policy does exist which could be interpreted at this remove, to provide cover for claims in respect of conduct which occurred 40 years ago. Given the antiquity of these claims, it is entirely possible that there are no existing insurance policies. The policies have been lost or lapsed, or the entity providing the insurance no longer exists, or if it still exists that its reinsurance has been lost either partially or wholly. Even if a policy existed which, fortuitously could be argued to provide cover for members of a religious order in a school, it is unlikely that it would have been entered into, or, a premium set, in contemplation of the risk of sexual abuse, or the possibility that it could be perpetrated by members of a religious order. This is particularly important given the fact that if the level of damages awarded in this case were replicated generally, then the cost would be very substantial indeed to any organisation. The resulting cost would not be spread over those few policies which might still exist, and which could be said to cover abuse which occurred nearly 50 years ago. Instead the cost will be borne by the insurance company and sought to be recouped by increased premiums from future policy holders, not responsible for the abuse and perhaps not religious orders. It is not clear why that is any fairer as an outcome. Different difficulties arise in the case of trusts. Normally, the fact that an individual or property is a beneficiary of a trust would mean that the trust property is not available to meet any award made against the individual. There is nothing to suggest that there is any trust here or in any such similar case, or indeed any similar funds to provide ready compensation for the plaintiff, and therefore assuage concerns as to the extension of liability in the case. Reference to insurance and trusts therefore only distracts focus on what are undeniable difficult issues.
46 Finally, and at the level of detail, I doubt that it can be said as a general proposition that an unincorporated association is vicariously liable separately from its members, for the tortious acts for one or more of its members. As pointed out in the comment in Morgan, ‘Vicarious Liability on the Move’, (2013) 129 L.Q.R. 139, the three UK cases cited: Heaton’s Transport (St Helen’s) Ltd v. TGWU [1973] A.C. 15; Thomas v. The National Union of Mineworkers (South Wales Area) [1986] Ch. 20, 66-7 and Dubai Aluminium Co. Ltd. v. Salaam [2003] 2 AC 366, do not establish that proposition. Both Heaton’s and Thomas involved trade unions and Salaam involved a partnership. In each case therefore there were statutory interventions which had the effect of permitting the union or the partnership to sue or be sued. These cases therefore offer little guidance as to the vicarious liability of wholly unincorporated associations whose structure and legal status is not in any way provided for by statute. The High Court judgment here followed the approach in CCWS in treating a religious order as if it were a body corporate, and then analysing the two stages of vicarious liability. I have approached the issue of vicarious liability on the same basis since it reduces the possible complications in the analysis of what are in any event difficult issues. However, in my view the most difficult issue in this case is whether the assumption, and indeed the conclusion in the High Court, that the Marist Order could be treated as if it were a body corporate and therefore a single entity vicariously liable for the acts of its members, and therefore permitting execution against what are deemed to be the assets of the body (and avoiding perhaps execution against any individual assets of members if such is possible) is indeed correct. There is a further related procedural matter as to whether even if the Order may be treated as if it were a body corporate, such a body has been properly sued in these proceedings.
The legal status of the Marist Order and its relationship to the first defendant
47 The High Court here held that it was appropriate to treat the Marist Order as a corporate body liable for the acts of its members and, implicitly that the first named defendant could be treated as a representative of the Order so that judgment could be, and was, entered against him. In coming to that conclusion, the High Court judge expressly followed the approach in CCWS. However although that was indeed the outcome of CCWS, the matter was not the subject of any extended argument, or consideration, apparently because the issue was not itself seriously contested by counsel on behalf of those defendants sued on the basis of their involvement in the De La Salle Order. (See paragraph 31 of the CCWS judgment already quoted at paragraph 30 above). The issue of the problematic nature of the De la Salle Order, at least as a matter of law, was however considered by Lord Phillips and his conclusion set out at paragraph 33:
“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.” (emphasis added)
48 The starting point for analysis must be that the common law considers a religious order such as the De La Salle Order in CCWS, or the Marist Order here, as an unincorporated association. This approach stems in turn from the historic unwillingness of the common law to recognise the Catholic Church in particular (and presumably other religions other than the Established Church) as a legal entity in its own right, notwithstanding its obvious size, organisation and importance in the daily life of the community. If indeed the common law had recognised the Church and religious orders as possessing legal personality distinct from its members, then this and other cases would be much easier. However that step was not taken either in the United Kingdom or even in Ireland post-Independence. The limited extent to which religion and in particular the Catholic religion was recognised in Article 44 of the 1937 Constitution did not, in my view, have any effect on the legal status of those religions, and that provision was in any event removed in 1973. Of course, it may be that there was no pressure or requirement for the law to address the status of churches and orders because it was possible for the Church to organise its affairs in civil law so far as was necessary, and to give effect to its objects. Accordingly, it was possible to hold property through trustees, to make contracts through nominees who would be liable, and then indemnified, and so far as the interests of the order required protection in court, it was possible for trustees or nominees to bring proceedings. None of this however addressed the question of the Catholic Church or a religious order, as a defendant in proceedings. It seems likely that this was dealt with on an ad hoc basis, and without any issue being taken either because of the availability of property to satisfy any award, or the existence of insurance policies. However, the potential range and number of claims brought in respect of historic sexual abuse raise the prospect of very extensive potential liabilities which in other countries have led to the bankruptcy of parishes, dioceses or institutions, and may threaten their capacity to continue to undertake valuable work in the community with marginalised and vulnerable people, which, it should be recognised, is work that was carried out by members of religious orders – themselves not merely blameless for the particular wrongdoing but who are admirable for their selfless devotion to charitable works. It is perhaps not entirely surprising therefore that the difficult issue of the liability of an order or its members is maintained in these proceedings. In any event it must be addressed.
49 I cannot accept that by some process of unexplained alchemy a group of individuals such as that involved in this case, which is in law, an unincorporated association, can come to be treated for the purposes of these proceedings only, as if it were a corporate entity. References to insurance, or the existence of property held on trusts, or the reality of proceedings, cannot in my view provide an acceptable legal route between these two points. The UK cases referred to as establishing the proposition that an unincorporated association can be vicariously liable for the acts of its members reveal themselves on examination to be cases about trade unions and partnerships – both of which have statutory provisions and recognition, the effect of which is to give them some status for the purposes of legal proceedings.
50 The law relating to such bodies casts some light on the liability of unincorporated associations more generally. It has been held that a registered trade union was a quasi or near corporation. In R (IUDWC) v. Rathmines UDC [1928] I.R. 260, Kennedy CJ said at p.300:
“A trade union which has been registered with a name, an address, a constitution and rules, is a legal person, at least analogous to a statutory corporation, having an existence apart from the individuals aggregated in the combination.”
This conclusion (which only relates to registered unions) followed not from the status of a union as an unincorporated association, but from the consequences of registration in accordance with the then statutory provisions recognising the existence of trade unions. In the case therefore of trade unions and partnerships, their capacity to sue or be sued in their name results from statutory intervention and not from a status as an unincorporated association. Indeed, the case of an unregistered trade union provides the more appropriate analogy. The difficulty which may, arise in relation to proceedings by and against such bodies is thoroughly and helpfully discussed in Kerr and White, Irish Trade Union Law, (Abingdon: Professional Books Ltd., 1985) pp. 62-63. The authors conclude:
“The legal position of the unregistered trade union is comparatively straight forward – it is an unincorporated voluntary association of individuals similar in legal nature to a social club. The union has no legal personality itself and consequently any action concerning the union, its property or activities must be brought or defended by way of representative action.”
51 The difficulties of cases in which it is sought to make a defendant representative of others are also discussed by the authors. The conclusion is, that in the absence of statutory intervention, an unincorporated association lacks separate personality and cannot sue or be sued as if it were. This position is reflected in the recent decision of this Court in Sandymount and Merrion Residents Association (SAMRA) v. An Bord Pleanála and Ors. [2013] 2 I.R. 578. There this Court in a judgment of Clarke J. held unanimously that the effect of s.50A(3)(b)(ii) of the Planning and Development Act 2000, was to provide an exception to the general rule that an unincorporated association could not bring proceedings. In the course of that judgment he said:
“It is true of course, that … an unincorporated association or body does not have the legal capacity to bring or defend court proceedings. Such an unincorporated body or association is simply the sum of its individual members with no independent legal personality. However, it is also clear there can be, whether by legislation or otherwise, exceptions to that general rule.”
52 There is clearly no legislative exception relied on in this case to alter the longstanding position of the common law that a religious order is an unincorporated association. It is perhaps not entirely inconceivable that it is within the powers of the court, and the common law, to provide for an exception to that rule in some cases. However, the basis upon which such a step could be taken, was not addressed in argument, or discussed in the CCWS case. As it stands therefore in my view, the Marist Order is an unincorporated association and must be viewed by the law as such. It is essential to the very nature of an unincorporated association that it is not a body corporate. It cannot therefore be treated as if it was that which by very definition it is not. In my view, the Court must address the difficult question of the liability of members of an unincorporated association, and, the related question on the assumption that there is such liability, the question whether it has been properly invoked in this case.
Liability of an Unincorporated Association
53 To speak of an unincorporated association implies a body of some substance. Given the importance of clubs sporting and otherwise in Ireland, it would be wrong to underestimate the social significance of such a body. George Orwell observed that the English are a nation of joiners, but the observation could be applied with equal merit in Ireland, although the list of activities might not put the same emphasis on the flower arranging, pigeon fancying and dart playing praised by Orwell. However, in law, the absence of incorporation means that the body is created by the agreement of its members embodied in rules which are in the nature of a contract between the members. Thus, in Conservative and Unionists Central Authority v. Burrell [1982] 1 WLR 522, Lawton L.J. defined an unincorporated association as “two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms, and which can be joined or left at will”. There is a dearth of authority in the common law world as to the liability of members of an unincorporated association but there is a working assumption that members are jointly and severally liable for damages arising out of a tort committed by a member in pursuit of the objects of the association. The celebrated case of Miller v. Jackson [1977] 3 All ER 338, featuring Lord Denning’s dissent from the proposition that a cricket club could be liable for balls hit into the property of its neighbours, is normally cited as authority for that proposition, but it does not appear that the point was argued or separately addressed as the award was sufficiently modest to be paid out of the club’s funds. The Scottish Law Reform Commission’s, Discussion Paper on Unincorporated Associations (DP 140) (2008) p.11, set out its understanding of the general position:
“It would therefore appear that the members would be liable jointly and severally for the damages awarded, beyond the amount of their subscription to the club.
The point has not been the subject of decision by a UK court because in the reported cases in which associations have been sued (through their officer bearers) at common law or under the Occupiers’ Liability (Scotland) Act 1960, either the pursuer has failed to establish liability or the sum awarded has been sufficiently modest to be payable in full out of club funds. It has, however arisen in other jurisdictions. In Australia, the possibility that committee members who had been found liable in damages to a third party might seek indemnity from members was mentioned by Jacobs JA in Smith v Yarnold. At common law in the United States, members of an unincorporated not-for-profit association are liable for the tortious conduct of fellow members and agents of the association, although it has been noted that in some jurisdictions liability has been restricted to members who participated personally in a tortious act, or who expressly or impliedly assented to it.”
54 Club members have been liable in tort in cases such as Kennaway v. Thompson [1980] 3 All ER 329 where members of a motor boat racing club were held liable in nuisance, and similarly in the case of Tetley v. Chitty [1986] 1 All E.R. 663, where all members of a go-kart racing club were found liable in nuisance together with the borough council which had permitted the activity.
55 Perhaps the most thoughtful and extended consideration of this issue is to be found in the Irish case of Murphy v. Roche & Ors. (No.2) [1987] 1 I.R. 656. The case involved a member of a GAA club, who attended a dance in the club house and sustained injuries due to a fall which he alleged was caused by negligence on the part of the club. The Supreme Court directed the trial of a preliminary issue on the liability of a club to its members. In the High Court, Gannon J. held that a member could not sue a club per se essentially because it was an unincorporated association and the plaintiff member would be maintaining an action against himself or herself. This analysis it might be noted is necessarily dependent upon the proposition that the individual members of the club (including the plaintiff) are legally liable for the negligence of other members, at least in the pursuit of the common purpose of the club. Gannon J.’s analysis of the position of members of an unincorporated association against whom proceedings are sought to be brought, was clear:
“In my opinion this club is a voluntary association of persons having a common or mutual interest not for any financial or commercial gain who have expressed to themselves and to all third parties the terms of their association in their rules. The mere fact of such association does not cast on any one of them liability for actionable wrongs by any other of them. Liability may attach by reason of actions of an agent common to all and acting as such, or by reason of the actions of one of them having the authority in nature of agency of all. Agency, however, cannot be assumed by reason only of common association and it would have to be established as a fact by any person seeking to rely upon it. The agency, its nature and limitations is to be found in the rules mutually adopted by the members for the purposes of the common interest. It is my opinion that any wrongful action of one member carries vicarious liability for all members to the extent that it corresponds with the common interest; and, to the extent that it is not common to all and is at variance with the rules, the liability remains that only of the individual, subject to express agency, if any. However, if the actions of any member or servant in the furtherance of the common interest should occasion actionable damage, the body of members as principals are all equally liable vicariously to the injured party for the entire damage attributable to the harm, but with the right of recourse for indemnity against the wrongdoer. In the absence of express terms no one individual sharing the common interest served by the action of the agent, be he member or servant, can avoid his vicarious liability for the entire damage to the injured party even though contribution may be obtained under the Civil Liability Act, 1961.” (p.661)
56 It becomes important to consider here precisely what was in issue in these proceedings on the pleadings. It will be recalled that the first named defendant did not make any concession as to responsibility but insisted that the case be determined strictly in accordance with law. Much of the first named defendant’s criticism of the case made by the plaintiff consisted of detailed, and in some cases justified, criticisms of the pleadings and the lack of detailed evidence. The same principle applies however to the first named defendant. The only plea raised was that at paragraph four discussed above which did not deny that the first named defendant was Provincial of the Order but rather pleaded that the members of the Marist Order as an unincorporated association were not liable either directly or vicariously for any act of any other member. It is correct that members of the Order are, at common law at least, members of an unincorporated association and they do not have any direct liability for the acts of others. However, for the reasons set out above, I consider that they have a vicarious liability for the acts of other members. The paragraph goes on to assert, correctly in my view, that any current member of the association is not vicariously liable for acts of a member prior to the defendant becoming a member of the association. In my view, the members for the time being at the time the act is committed are liable rather than the members, for example, at the time the proceedings are commenced. It is however conceivable that the rules of the association may allocate liability internally. It may be that this further plea is meant to imply that Brother McGowan joined the Order after 1972, but if so it is not explicitly pleaded, and was not addressed in evidence. The defendant deliberately chose not to risk providing assistance to the plaintiff’s case by calling evidence, but thereby ran the risk that he might also lose evidence that might be of assistance to the defendant’s case. On day six, page 46 of the transcript, it appears Brother McGowan was going to give evidence but having after a short period for consideration, he was not called. Therefore, the plaintiff has in my view established that he was abused by the second named defendant who was a member of the Marist Order, and that he has pleaded that the first named defendant is a member of the Marist Order and indeed a provincial, and this is not denied. It has neither been pleaded nor proved by the second named defendant that he was not a member during the period of the wrongdoing established in this case. That in my view is just enough to justify judgment against the first named defendant, although it remains to be seen what benefit such judgment against the individual will be to the plaintiff. This might appear a narrow and somewhat technical approach, which nevertheless has decisive consequences in this case. After all, the first named defendant may have been able to prove that he was not a member of the Order at the relevant time. However he neither sought to plead, or prove, such a state of affairs. Instead he took up a position – that members of an unincorporated association were not vicariously liable for the any of the acts of another member – which in the event failed as a matter of law. He also insisted on strict proof of all matters and stood on his right to defeat the claim even on grounds which were on any view, technical. It may be rough justice, but it is justice all the same, if the same standard is applied to his case.
Representative Defendant
57 There was considerable discussion in the course of the appeal of the possibility of seeking an order that the first named defendant was sued in a representative capacity on behalf of all members of the Order or, conceivably specified members. While the first named defendant made effective play of the fact that the plaintiff had not sought such an order the first named defendant did not necessarily concede that such an order was possible. It subtracts somewhat from the force of the arguments made about the inadequacies of the pleadings, if on closer examination it became apparent that there was no simple or effective route to a broader based claim. Order 15 Rule 9 of the Rules of the Superior Courts, 1986 does permit a person to sue, or be sued on behalf of all persons having the same interest in the cause or matter. However, Kennedy C.J. stated bluntly in Moore v. Attorney General (No.2) [1930] I.R. 471 at p.499, that the almost identical provisions of Order XVI Rule IX of the Rules of the Supreme Court (Ir.), 1905, did not apply to an action in tort. I am not sure that that is necessarily correct in all circumstances and in particular where a claim is made for the same vicarious liability against a number of parties (something that might not have been conceived possible in 1930). In any event I think that no sufficient attempt was made here to endorse the plenary summons with a claim that the defendant was sued in a representative capacity, or to identify the persons alleged to be represented. The appropriate course in such a case is to write to the order or provincial threatening to sue all individual members of the order unless a defendant is nominated. If that course is not taken, then all members who can be identified can be joined as defendants. If however any judgment is obtained against those defendants, the judgments are individual and whether or not such judgments will be met by insurance, or from assets which may be held for the benefit of the order more generally, may depend on the terms of the insurance, and indeed the terms upon which such assets are held, and perhaps the willingness and ability, of the order to make funds available to satisfy any judgment against an individual. Whether this is a desirable position as a matter of law and whether further changes should or could be made, is a matter which might usefully be considered by those charged with law reform.
Contributory Negligence
58 The High Court judge held that the manager of the school, as the legal employer of the second named defendant was also vicariously liable for his acts while teaching. Since the manager had not been sued, and since any claim against the manager was statute barred, the Court held that the plaintiff must be identified with the manager under s.35(1)(i) of the Civil Liability Act 1961, for the purposes of contributory negligence under s.34 of the same Act. However, the trial judge considered that the evidence was that the Order was much more substantially in control of the teaching than the manager of the school, and he apportioned liability as between the Order and the manager, 85%-15% and therefore reduced the plaintiff’s award by 15%. The first named defendant has appealed against the apportionment, and the plaintiff by notice to vary, contending that the finding of contributory negligence should not have been made. It is logical to deal with this latter argument first.
59 Section 35 of the Civil Liability Act deals with what it describes as “identification”. Much of it is unremarkable. It provides for example that the plaintiff is deemed responsible for the acts of a person for whom he is vicariously liable or when suing as a personal representative of a deceased’s person, or for example when suing as an assignee. However, s.35(1)(i) is quite novel. It provides:
“(1) For the purpose of determining contributory negligence—
… …
(i) where the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer;”
The immediately preceding section, Section 34, deals with the apportionment of liability in a case for contributory negligence. It provides so far as is relevant:
“(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant: … …” (Emphasis added)
60 Counsel for the plaintiff does not dispute that on the judge’s findings, the manager was a concurrent wrongdoer. He was vicariously liable for the assault of the second named defendant. It follows that for the purpose of s.35 that the plaintiff, who did not sue the manager, and whose claim against such manager is not statute barred, must be in the words of s.35 “deemed to be responsible for the acts of such wrongdoer”. However, counsel argues that s.35 is not an end in and of itself. It is introduced for the purposes of determining contributory negligence. He argues that contributory negligence is by virtue of s.34, limited to acts of negligence or want of care. Thus, the argument runs, the apparent breadth of s.35 is limited by the fact that it is stated to be an attribution of liability for the purposes of determining contributory negligence and therefore the only acts of the manager wrongdoer for which the plaintiff can be made responsible are acts “constituting negligence or want of care of the plaintiff or of one for whose acts he is responsible”, and not any other wrongdoing, such as assault, or as here vicarious liability for such assault.
61 It does not appear that this argument has arisen before, and it does not seem to have been the subject of any academic consideration. Certainly we were not referred to any such commentary. It is idle I think to deny that the argument has some weight at the level of language if the two sections are taken on their own. However, it is I think relevant that the Civil Liability Act is an extremely complex provision which while a significant advance in the law, is not so perfect a construction that there are not provisions in the Act which do not fit comfortably together. To understand these novel and complex provisions, it also necessary to understand the general structure of the Act and the function of these sections. In particular, as McMahon and Binchy, Irish Law of Torts, 4th Ed., (Dublin: Bloomsbury, 2013), p.840 at para. 20.67 points out, the provisions of s.35 “harmonise with the provisions relating to contribution, to ensure fair treatment, not only between plaintiffs and defendants, but among the defendants themselves”. It is necessary therefore to address the sections in that wider context.
62 It is in my view certainly open to argument that s.35(1)(i) operates too harshly. The underlying theory however is clear, and in principle at least, sensible. One of the main provisions of the 1961 Act was to allow the allocation of liability (and consequently damages) between defendants and indeed other concurrent wrongdoers responsible for the damage suffered by the plaintiff. If a plaintiff did not sue one such wrongdoer (with the consequence then that such wrongdoer may not be available for a claim of contribution by other concurrent wrongdoers who have been sued), then the Act through s.35 requires that the plaintiff must bear that loss.
63 It is significant that it is accepted that the definition of concurrent wrongdoers includes anyone responsible for the same damage to the plaintiff and specifically includes circumstances where the wrong on the part of one or both potential concurrent wrongdoers under s.11(2)(b) “may be a tort, breach of contract or breach of trust, or any combination of them”. If there was no provision for the identification of the plaintiff with the liability of a concurrent wrongdoer not sued by him or her, then the plaintiff might have less incentive to sue all potential concurrent wrongdoers, and might be able to throw all the loss upon one defendant. Once it is accepted however that intentional tortfeasors, contract breakers and trust breachers are also concurrent wrongdoers from whom contribution might be sought, it would make little sense to read the identification provisions of s.35 as only having a practical effect in relation to those acts of a concurrent wrongdoer which constitute negligence or want of care. This is particularly so since the want of care might not be such as would give rise to a cause of action whereas the intentional tort or breach of contract certainly would. Indeed it is difficult to see how a party, who is guilty of want of care which does not amount to a cause of action, can be said to be a concurrent wrongdoer.
64 The potential outcome of the defendant’s argument in this regard is more than peculiar. The combined effect of s.34 and s.35 would be is that certain acts (want of care) which would be contributory negligence if committed by the plaintiff, cannot be treated as contributory negligence through the vehicle of s.35 (since they would not necessarily amount to concurrent wrongdoing). On the other hand, while the plaintiff must be identified under s.35 with the acts of the concurrent wrongdoer not sued for the purposes of contributory negligence, certain of those acts (torts other than negligence, breaches of contract, breaches of trust), would nevertheless not constitute contributory negligence, even though, if the same concurrent wrongdoer is sued in the proceedings by the plaintiff, or joined as a third party, contribution in respect of those acts of concurrent wrongdoing would be available to the other defendants. There would be have symmetry or harmony between the provisions of s.35(1)(i) and the contribution provisions if that was the case. One might wonder then as to the purpose to be served by identifying the plaintiff with the acts of the concurrent wrongdoer who was not sued. If s.35 merely means that the plaintiff will be fixed with the acts of a concurrent wrongdoer which amount to negligence, it would have been simpler to have stated so explicitly rather that use the more general (and on this argument, misleading) words of s.35.
65 It seems to me that this section can be understood more readily and more naturally as merely a deeming provision which deems the liability of the statute barred defendant a form of contributory negligence which can then be pleaded against the plaintiff in reduction of the plaintiff’s award. The purpose of a deeming provision is to give a meaning to something for a particular purpose which it would not otherwise have more generally. Breach of contract or an intentional tort is not normally contributory negligence if committed by the plaintiff, but when committed by a concurrent wrongdoer not sued and now protected by the Statute of Limitations, it is deemed to be so for the limited purposes of the identification provisions of the Civil Liability Act.
66 Even read in this way the section has the capacity to operate harshly in a number of circumstances. First, in a case such as the present, where there are a large number of defendants who may be concurrent wrongdoers on the grounds of vicarious liability but who it may be very difficult to identify, and who the plaintiff may not have the capacity to identify, it may be unfair to reduce the plaintiff’s award for failure to join all potential parties. No provision is made for the possibility of a lack of knowledge on the part of the plaintiff of the existence of a concurrent wrongdoer when proceedings are commenced, and indeed when a claim came to be statute barred. Finally, the symmetry between the provisions of s.35(1)(i) and the general provisions on contribution, while close is not perfect. The limitation period for the initial claim by the plaintiff against the wrongdoers, is not identical to the limitation period for a claim for contribution. Thus the fact that a plaintiff’s claim against a concurrent wrongdoer has become barred does not necessarily preclude a claim for contribution by any other concurrent wrongdoer who has been sued. In such circumstances, which may of course be unusual, a defendant may have the option of either relying on the provisions of s.35(1)(i) or joining the concurrent wrongdoer as a third party. A related difficulty arises because s.35(1)(i) is triggered merely by the failure to sue a party against whom a claim is statute barred and may take no account of the capacity of such a party to meet an award of damages. In such a case although the plaintiff might not have recovered damages against that concurrent wrongdoer, the failure to sue the wrongdoer may result in a reduction of the plaintiff’s award. It may be that these difficulties do not arise, or that there are other and further difficulties. The matter was not argued before us in any detail and arises because it has been necessary to consider the underlying rationale of s.35(1)(i). I raise these matters in order to suggest that the section might benefit from further detailed scrutiny. For the purpose of this case however, I am satisfied that the High Court was correct in identifying the plaintiff with the wrongdoing of the manager who was not sued. I would accordingly dismiss the notice to vary.
67 There is however considerable force in the plaintiff’s contention that once it was determined that the manger was a concurrent wrongdoer and also vicariously liable for the acts of the second named defendant, there was no basis either in theory or in fact for apportioning responsibility 85%-15%. Since vicarious liability is liability without fault, it is difficult to see that there could be different “degrees of fault” as contemplated by s.34. Accordingly s.34(1)(a) applies and liability is apportioned equally. In any event, even if it were possible to apportion responsibility between two entities having vicarious liability, it was not possible in this case because there was an evidential deficit as to the relationship between the manager on the one hand and the Marist Order on the other. I do not think it is necessary to determine whether in any such case it may ever be possible to identify “degrees of fault” so as to apportion liability between two defendants both vicariously liable for the acts of a third: in this case the manager was the employer who had the primary liability for the acts of the employee. The relationship between the Order and its member may be such as to give rise to vicarious liability, but it would be wrong to hold that it can almost entirely displace the legal responsibility of an employer. Accordingly, I would apportion responsibility equally between the Order and the manager. In the judgment he delivers, Charleton J. concludes that the Marist order had sufficient control over the first defendant that it (assuming for these purposes that it could be separately sued) would be wholly responsible, and its liability would exclude entirely the liability of the person or entity that was the employer of the first named defendant. For my part I doubt that the evidence in this case is of sufficient detail and strength to provide a sound foundation for such a conclusion, and I would be extremely slow to hold that the liability of an employer can be lost, avoided or transferred other than by express agreement. Furthermore I think it would be undesirable to introduce this element of uncertainty into the relationship between employer and employee.
68 It follows from the foregoing that in theory all members of the Marist Order, at least those who are members at the time of the alleged abuse, are vicariously liable, but only Brother McGowan has been sued. There was some discussion therefore as to whether s.35(1)(i) applied in this context as well. I do not necessarily accept that it would be appropriate to permit a party such as the first named defendant in this case, to rely on the failure of the plaintiff to sue other members of a religious order when knowledge as to the identity of such members was something much more clearly within the power and control of the first named defendant rather than the plaintiff. However, in any event as is apparent, this issue was not raised by the pleadings, and accordingly it is neither necessary, nor appropriate, to address the question of the potential liability of other members of the Marist Order for the purposes of s.35(1)(i).
Quantum
69 The plaintiff’s damages were assessed at €350,000 by the trial judge. The assessment of damages for personal injuries is not a precise science, and becomes particularly difficult when it involves the assessment of general damages for the psychological impact of a wrongdoing. Much more information is available about the impact of physical injuries on human beings, and the courts have considerable experience in dealing with such injuries. Furthermore, it is also possible to be more confident about what the likely position of a plaintiff would have been, had a physical injury not occurred. The plaintiff now attributes difficulties he has experienced in his life such as changed jobs and difficulty forming lasting relationships to the discovery of the abusive behaviour of the second defendant. But some difficulties in life may not be capable of being traced to any single causal event, still less one for which compensation is available. The difficulties of assessment of damage to the psyche is compounded in cases such as this which extend over a considerable period, and where for the majority of the period, the plaintiff was unaware of the abusive conduct because he had blanked it from his memory. I do not wish in any way to depreciate the significance of these matters for the plaintiff. I do consider that the process of bringing proceedings, confronting a wrongdoer and having the determination of the court are more important factors in cases such as this than for example in a car accident. Confronting an abuser and obtaining a public and authoritative determination that the defendant is responsible for the abuse, is an important vindication of a plaintiff. While this is a distressing case, it must also be acknowledged that there have been even more severe and traumatising cases of abuse. There is regrettably a spectrum of cases with which the courts are now familiar, and any case must be located on that spectrum. This case while significant and serious, is not at the most extreme end of the scale.
70 There must also be some correlation between the figures awarded for injuries of this nature and general damages awarded for catastrophic personal injuries resulting in some cases in a quadriplegic life from a very young age, or severe brain damage. While very large awards are made in these cases, the bulk of the award relates to special damages in respect of past and future care. The component for general damages for pain and suffering rarely exceeds the amount awarded in general damages in this case. Awards for residential abuse may be a useful point of comparison. There was I think only limited evidence as to these matters which might benefit from greater scrutiny in another case. In the circumstances of this case however, I would reduce the overall general damages to a figure of €150,000. When the deemed contributory negligence under s.34 is taken into account, this would result in an award of €75,000.
71 I have had the opportunity of reading in draft form the judgment delivered today by Charleton J. and have greatly benefitted from its range, detail, and depth of thought. There is as he observes a large measure of agreement between us. This is a very difficult case. Charleton J. cannot agree that the finding of the High Court as to liability against Brother McGowan should be upheld on the narrow basis on which my decision rests. He would however remit the case to the High Court to consider if liability could be established against Brother McGowan, not individually as a member of an unincorporated association, but rather in his capacity as Provincial and on the basis that such an office is a corporation sole. I recognise the learning which he has brought to bear on this issue. I agree that the entire question of the potential liability of a religious institution, or order, first at common law, and then after the coming into force of the Constitution is something which deserves study and argument. If correct it might provide a basis for the liability of the Order through its Provincial, which the cases, in different ways, consider appropriate. However I cannot see that it is a possible route in this case which was commenced 15 years ago and concerns events more than 25 years earlier. If it was clear that additional legal argument would be decisive then there might be some argument for permitting that argument to be made, even at this stage. However the question of potential liability as a corporation sole is one not canvassed before, and is by no means clear cut. It was discounted by Geoghegan J in O’Keeffe. It would be necessary to amend the pleadings, seek discovery, call evidence and then engage in an entirely new argument. That would not be the resolution of this case, but in truth the commencement and determination of another. Accordingly I regret I cannot agree to the course he suggests.
Judgment of Mr Justice Charleton delivered on Thursday the 9th of February 2016
1. At issue on this appeal is vicarious liability for the sexual abuse of a pupil by a teacher. An important aspect of the case is also whether the present leader of an unincorporated religious group, specialising in teaching, may be vicariously responsible when one of their number sexually abused a child in a school 40 years ago, a time when he may not have even entered that way of life. While this case concerns an unincorporated religious order, many other groups of people who pursue similar aims and interests, such as sporting associations, also organise themselves without incorporation. Hence, the problems of liability and succession to liability are not specific to religious orders. Religious orders are merely one class of organisation lacking legal personality. Such groups must be considered within a broader analysis of vicarious liability. That aspect of the appeal also brings into focus succession to liability through a corporation sole, as mentioned in the judgment of Geoghegan J in O’Keeffe v Hickey [2009] 2 IR 309.
2. Brother Patrick McGowan, the first defendant, and the appellant herein, is the only appellant from the judgment of Ó Néill J in the High Court of 24 January 2014, [2014] IEHC 19. In his judgment, Ó Néill J awarded at full value the sum of €350,000 to Pádraig Hickey, the plaintiff, as damages in respect of sexual abuse suffered by him between 1969 and 1972 at Saint John’s, a Catholic national school in Sligo. These damages were reduced by 10% because of the defendants not proceeded against, as listed in the title. At that time the school was staffed by the Marist Brothers, a religious order devoted to teaching. Brother McGowan never abused Pádraig Hickey. The trial judge determined that the abuse was committed by Christopher Cosgrove, who was a Marist Brother when he abused Pádraig Hickey but who has since left the Brotherhood. That second defendant, ex-Brother Cosgrove has not appealed. The action against the State defendants was never proceeded with. It might also be noted that counsel arguing the appeal on behalf of the plaintiff/respondent differed from counsel in the High Court.
Facts
3. This national school was run according to pattern familiar in Ireland of having a board of management, headed by a school manager who was not involved in the day to day management of the school. He was a cleric who was appointed to that position by the patron of the school, who was the bishop of the diocese in which the school was situated. The bishop was not joined in these proceedings and neither was the school manager, who, as will be seen, was the administrator, or effectively parish priest, of the diocesan cathedral. Brother McGowan, it appears, is now the principle of the Marist Brothers in Ireland. The Marist Brothers are an unincorporated group of men who take religious vows of celibacy, obedience and poverty in order to devote themselves to teaching. The vows are for life. The case was never made that ex-Brother Cosgrove was known, or reasonably suspected, to be a danger to children. There was no evidence to that effect. No fault was alleged against the Marist Brother then in charge of the school for allowing ex-Brother Cosgrove to teach, and thus have access to children. The fault proven in this case is that of ex-Brother Cosgrove. He, as the trial judge found, sexually abused Pádraig Hickey. The liability is vicarious. At paragraph 4 of his judgment, Ó Néill J described what he had been subjected to as a child. An edited quote suffices to indicate the terrible nature of the abuse of authority which polluted the plaintiff’s childhood:
The plaintiff … described becoming involved with the school band… [Ex-Brother Cosgrove] was in charge … [H]e began the practice of holding the plaintiff in a close manner [whilst teaching him to play the drums] and of bringing his face into very close proximity with the plaintiff’s face. This type of activity, the plaintiff said, then continued in the normal classroom. [Pádraig Hickey] would frequently be instructed … to come to the top of the class … either under the pretext of reading to the class or of being assisted in learning. … [Ex-Brother Cosgrove] began rubbing his legs and this evolved into fondling his anus and genitalia, initially outside his clothes, but then inside his clothes and at times inserting a finger into the plaintiff’s anus. … The plaintiff described these activities as occurring several times during every week and that they were a cause of the gravest upset to the plaintiff and that he was powerless, in the context of the position of authority of the second named defendant and his close relationship with the plaintiff’s family, to do anything about it and that he lacked the language to express his distress and unhappiness.
4. On the evidence, the wrong for this was entirely that of ex-Brother Cosgrove. Nothing flagged whatever perversion drove him on. There was no indication to either the Marist Brothers or to anyone else teaching in or running that school that he had a sexual attraction to small boys. Had there been any indication, a case of negligence might have been built against another party; that of failing to prevent foreseeable harm. Vicarious liability, however, ascribes liability without fault. A primary tortfeasor is responsible for the wrong, and thus must be at fault, but the employer, or master to use the language of older cases, of that tortfeasor becomes liable through the relationship whereby the wrong is ascribed without fault to the person or body employing him. Brother McGowan, as the current head of the Marist Brothers in Ireland, was held by the High Court to be responsible vicariously for the wrongs of ex-Brother Cosgrove four decades previously. The fault of ex-Brother Cosgrove was ascribed without fault on the part of Brother McGowan to him solely by reason of his now having a leading role in that religious order in Ireland.
5. Before this case commenced, no representative order was sought on behalf of Pádraig Hickey against the Marist Brothers, no interrogatories were served, no discovery was sought as to the structure of the religious order or as to any manner in which responsibility was structured by that group, or property was held, and no exchange of particulars or interrogatories explored any of those issues. During the course of the case, these matters were not addressed in evidence. There was no, or minimal, focus on even the issue of who ran Saint John’s School in Sligo in the 1960s and 1970s. How authority was structured in the school was left unexplored. Ó Néill J found ex-Brother Cosgrove liable as the tortfeasor and Brother McGowan liable as his employer. Brother McGowan was, in this sense, regarded as somehow being the personification of the Marist Brothers. The explanation for how Brother McGowan came to be in the case at all came from counsel for Pádraig Hickey on the first day of the trial in November 2012 in terms that he was being sued “in his capacity as the head of the Marist brothers and in the sense they’re being sued on the basis that they are vicariously liable for the actions of [Ex-Brother Cosgrove] who was at the time a Marist brother.”
6. The appeal ranged over the multiple questions and was based on patchy testimony regarding the regrettably unexplored issues as to authority and structure within the school. It may conveniently be organised by a focus on the following questions:
(1) Was there evidence that the Marist Brothers were in control of the school or evidence from which such control might be inferred?
(2) Does control of a school by a religious order lead to the conclusion that abuse committed during the course of teaching by a brother renders the abuser’s congregation vicariously liable?
(3) Does this vicarious responsibility make the head of the congregation liable?
(4) Can the successor to the head of the congregation be liable, even after decades have passed?
(5) Do errors in the pursuit of this case on behalf of the plaintiff Pádraig Hickey require the ordering of a retrial in the High Court?
(6) Must the damages be reduced as excessive and further reduced under the Civil Liability Act 1961, as indeed the trial judge reduced same to €315,000, by reason of not pursuing a concurrent wrongdoer, the State defendants?
Proceedings on behalf of Pádraig Hickey
7. This action was commenced by the issue of a plenary summons on 6th February 2001 against the parties named as defendants herein. As Pádraig Hickey testified in the High Court, litigation had not been contemplated in the prior decades because of the complete suppression of these repellent memories into his subconscious. With the commencement of a Garda investigation into other instances of abuse at the school, he was contacted and subsequently sought psychiatric help. The trial judge in the High Court held that memory of the abuse was reliably recovered with the help of professional assistance. Letters of demand were served on, perhaps only some of, the proposed defendants on 9th of February 2001. Letters were received on various dates thereafter from all but Brother McGowan indicating on whom service should be affected. There was no evidence of service on Brother McGowan of any such letter. Further, the plenary summons was only served on the actual abuser, ex-Brother Cosgrove. Pádraig Hickey changed solicitors some years later and there is a notice of change of solicitor dated 22nd August 2008, which on the face of it claims to have been sent to all of the parties. This was ostensibly accompanied on that date by a notice of intention to proceed in similar form. Apparently, it was then noticed that the plenary summons had only been served on ex-Brother Cosgrove. An application was brought on behalf of Pádraig Hickey to renew the summons. In his supporting affidavit, dated 20th November 2008, Brother McGowan was described as “a representative of the Marist Brothers”, yet no order had been sought in that regard. The affidavit avers that “in the light of recent case-law”, he had “no cause of action against the State defendants” and that he was “not proceeding against those defendants.” The affidavit avers that the action against the State defendants was discontinued, but no notice of discontinuance was exhibited. As to service on Brother McGowan, the affidavit avers that he could find “no evidence of service”. An opportunity was thereby presented to offer evidence through a replying affidavit as to who Brother McGowan was, when he joined the order and what responsibility he held and when. That opportunity was not taken either then or at the trial. Instead, the defence of this case proceeded as if Brother McGowan was an accused in a criminal trial and was keeping an unbreakable counsel of silence.
8. By motion dated 20th April 2009, Brother McGowan sought to set aside the renewal of the plenary summons, which by this stage, 8 years after it had been issued, had been served on him. He also sought a dismissal of the proceedings against him for inordinate and inexcusable delay. He averred in his supporting affidavit that no “letter of demand was sent to or received by me on behalf of the Marist Brothers.” In a later affidavit, he also explicitly put on warning those proposing to run the case that his religious order did not run Saint John’s School:
The second issue I wish to deal with … is the suggestion that the Congregation of Marist Brothers were responsible for running the school at the time. This is not true. It is correct that a number of members of the Marist Congregation taught at the school but the Congregation never managed it. The school was at the time of the events complained of … managed by an individual school manager, who was the local priest in the parish and not a member of the Marist Congregation.
The issues just joined and specifically warned of should be noted together with the lack of any useful testimony on the issues. The order of O’Keefe J of 16th October 2009 was to dismiss that motion. The plenary summons thus stood.
9. By a defence dated 10th February 2010, Brother McGowan addressed the claim of liability through ex-Brother Cosgrove having once been a member of the Marist Brothers by denying that this could give rise to liability. He pleaded at paragraph 4:
The plaintiff discloses no cause of action as against the First named Defendant on the basis inter alia that the religious order described as the Marist Brothers is an unincorporated association, whose members are not liable in law, either directly or vicariously, for any act or default of each other. Further, and without prejudice to the foregoing, the current members of the Order are not liable directly or vicariously for any act or default of any member of the Order committed prior to their becoming members thereof.
10. It is not denied that Brother McGowan is now a member of the Marist Brothers. Nor is it denied that he was at the time of these wrongs against the plaintiff Pádraig Hickey. Nor is any pleading directed as to the organisation of the Marist Brothers and, subject to what follows, the issue of the structure of this unincorporated association is not set out as a matter of fact in this defence. The defence simply says: an unincorporated association cannot be responsible for torts committed during work on its behalf; and, even still, current members are not liable for what former members did.
Validity of High Court findings
11. On this appeal there has been a challenge on behalf of Brother McGowan to the finding implicit in the award of damages that the Marist Brothers were running St. John’s School in Sligo when Pádraig Hickey was abused. Ó Néill J held that the effective running of the school was by the Marist Brothers. This extract from his judgment is to be found in paragraphs 40-42:
St. John’s National School in Sligo, when the plaintiff was a pupil in it, was a Marist school in the sense that the Principal was a Marist Brother and the teachers in it were nearly all Marist Brothers. These Brothers were selected for their respective positions and directed to take up those positions by the predecessor of the first named defendant, the Provincial for the time being of the Marist Brothers in Ireland. The Marist Congregation was dedicated to the care of the young and in pursuit of this primary objective, the principal activity engaged in was teaching. Notwithstanding the clear identity of St. John’s School as a Marist school, it was nonetheless a national school subject to the prevailing legal regime for the governance of national schools… What this meant … was that the administrator of the parish, on behalf of the Bishop who was the patron, was the manager of the school and it was he who discharged the function of legally appointing teachers to the school, including the Principal. The school was run under the 1965 National School Rules regime, so that the curriculum pursued and the academic standard required was regulated by the Department of Education which pursued its interest in the system through the School Inspectorate system. I am satisfied on the evidence that, on a day-to-day basis, the school was run by the Marist Brothers and was under the day-to-day supervision of the Principal, who was a Marist Brother, and the manager at the time, Canon Collins, had very little, if any, hands-on involvement in the day-to-day management and running of the school, which I have no doubt the manager at the time and also, probably, the Bishop of the Diocese as patron, were more than content to leave in what they would have seen as the competent hands of the Marist Brothers … who could supply sufficient numbers of trained and experienced teachers who shared the religious ethos which the Bishop, as patron, sought to uphold.
12. On appeal, a court should take the findings of fact as decided by the trial judge once these are supported by evidence, as per McCarthy J in Hay v O’Grady [1992] 1 IR 210 at 217 if “the findings of fact made by the trial judge are supported by credible evidence … however voluminous and, apparently, weighty the testimony against them” because the “truth is not the monopoly of any majority.” There is a difference between a trial judge making an erroneous finding of fact and making a choice between competing evidence. In the latter instance it is not for an appellate court to “second guess the trial judge’s view”; Doyle v Banville [2012] IESC 25 at paragraph 2.7 per Clarke J. In this case it has been necessary to consider the entirety of the transcript to adjudicate whether there was evidence upon which a trial judge could reasonably conclude that the Marist Brothers were running the school. Pádraig Hickey testified that during his time in the school he had two teachers, the first a Brother Mel, with whom he had “no issues”, and the second Brother Cosgrove, as he then was. No other teachers are mentioned, particularly none outside the religious order. In referring to teachers, he mentions the Marist Brothers as wearing a distinctive form of religious dress. Four witnesses who had been pupils with Pádraig Hickey were called to testify to the abuse that they had seen him suffer at the hands of ex-Brother Cosgrove. They were not asked about the school, its structure or even what they observed as to who was teaching there. Canon Tom Hever testified that under the Education Act 1998, a national school is run by a board of management, of which he was the current chairman. Historically, he said that the patron was the Bishop of Elphin and his predecessors and acknowledged that up to the mid-1970s the Bishop “would nominate, if he wished, a manager to manage the school on his behalf.” His understanding was that, at that period in time, it “would have been the administrator of the cathedral.” As the Diocese of Elphin owned the property, and still does apparently, a Canon Collins was the manager at the time of the abuse and was succeeded by Father Gerry Donnelly. Nothing indicates that any of these had any awareness of what was happening at the school. Indeed, one of Pádraig Hickey’s classmates who witnessed the abuse told only his mother what he had seen. The result was that he left formal education in disgust. The school also had a headmaster. Canon Hever understood that the Marist Order would “put forward a name, but that would have to be approved by the manager.” Such a headmaster would have to meet the qualification standard of the Department of Education, as funder of national schools. The function of the headmaster would be “as they are today, to run the school on a day to day basis.” He agreed that this made the headmaster the day to day manager of the school. The cathedral administrator, he said, would have had no particular experience in education and would learn, as he had, through experience or perhaps do a course. Asked how the Marist Brothers became involved in the school, he said:
My understanding is that they’d always have to be invited in by the bishop, so they would have been invited in by the bishop of the time. I’m not too sure who that was or exactly when it was … I would think initially [the teachers] were probably all Marist, but then over a period of time they would have been lay people involved as well … over time. … The completion of any appointment [of lay people] would have been up to the manager. The principal could have recommended somebody … I think in those times I don’t know if interviews had come in … but it was always up to the manager to ratify any appointment.
13. Canon Hever agreed that the principal of the school was “always a Marist” at the time of the abuse, 1969 to 1972. Up to 1971, his evidence was that the principal was Brother Phelim and that he was replaced by the manager appointing Brother Einhard. Ex-Brother Cosgrove testified that he had entered the Marist Order at the age of 13 and had trained after secondary school as a teacher. He was “then assigned to Strokestown National School, a small school with two teachers” from where he “was assigned to St John’s school in Sligo” where he “taught the plaintiff.” His understanding that while he may have signed a standard form of contract with the Department of Education, the same as with other teachers “around the country”, he was “appointed by the provincial” of his religious order to his teaching assignments: “I was sent by the provincial when he made changes and brothers from around different places to different schools, I was sent to Sligo … the same thing.” There was no evidence called from the defendant Brother McGowan as to his career or responsibilities.
14. It would be unnecessary to resort to judicial notice – the experience which many judges have of their own education in national schools staffed by members of a religious order – to uphold the findings of the trial judge. No source of authority is mentioned in the evidence as operating within the school apart from the Marist Brothers. On no occasion is any decision by the school manager referred to. There is nothing to indicate him as being in a superior position. Witnesses operated on an underlying acceptance of fact that the Marist Brothers were in charge of the school. Canon Hever made explicit in his testimony that while the principal of the school was subject to the administrator of the local cathedral, this was not in any sense an executive role. In consequence, it is clear that the trial judge’s findings of fact in this regard were soundly based on evidence.
15. On the structure within which ex-Brother Cosgrove operated, the trial judge found that he was answerable to his religious superior. This extract is taken from paragraph 43 of his judgment:
…insofar as the control of the day-to-day activity of a teacher, such as the second named defendant, was concerned, I am quite satisfied that this would have rested exclusively within the realm of the Marist Congregation, initially between the teacher and the Principal of the school, and if issues were not resolved within that relationship, it is probable that they would have been, within the hierarchical structure of the Marist Congregation, no doubt achieving compliance to whatever was required, on the part of the teacher by recourse to his vow of obedience. Only in the extraordinary circumstance of a Marist Brother defying the authority of his superiors in the congregation, in my opinion would it have been necessary to have involved the manager of the school to resolve problems or difficulties arising in connection with the discharge by the teaching Brother of his teaching duties.
16. This finding was, again, soundly based in evidence. In addition to the above quotation in the context of the organisation of teachers within the school, the evidence of the Reverend Professor Michael Mullaney provided a foundation upon which the analysis of the trial judge of the relationship between an individual Marist brother and his superiors could be based. While, on this appeal, there was a strong focus by counsel on behalf of Brother McGowan as to whether the correct constitution of the Marist Brothers had been used by this expert witness, and while it was necessary to obtain during the testimony a copy of the earlier constitution in Latin, which no one in court spoke, these difficulties are more apparent than real. As that witness said: “I wouldn’t imagine the constitutions have changed enormously because obviously there’s a lot of consistency between the code of 1917 and 1983.” While this expert witness, called on behalf of Pádraig Hickey, had conducted no study of the Marist Brothers, his general evidence as to how religious orders are structured and managed was capable of acceptance by the trial judge. He gave a general overview of how a religious order “organises itself in terms of the hierarchy” thus:
Judge, the order is an institute of consecrated life in the Roman Catholic Church. It would be known as … an autonomous institute of pontifical right which means it’s a religious order which is approved by the Holy See and … there are a number of superiors within it. I suppose they have a major superior who is based in Rome. The order is divided – he has oversight of the order which is divided into, I suppose, you might say provinces or I suppose by analogy to dioceses maybe for a bishop but it’s provinces and that a provincial brother in this case would be … in each of those provinces there’s individual houses which would have their own superior but the key superior would be the provincial brother …[w]ho is over the province who makes most … of the significant decisions. [Going down to the next level w]ould be the superior of a house. Yes, there would be three main levels of superiors. You’d have the major superior, the provincial superior and the local or house superior.
17. He confirmed that this was the “situation as prevailed” in 1969 to 1972. Asked by the trial judge as to the nature of the relationship between a Marist Brother and his superior, the witness emphasised their vows of chastity, poverty and obedience. Referring to the vow of obedience, he said:
In the case of any religious [member of an order], a vow of obedience would mean to the superior or the provincial superior that they … would carry out the pastoral assignments that had been entrusted to them, that they would live a life that would be compatible with the spirituality or the charism that is the – the charism is the distinctive work or apostolic work or spirituality of the order. So, the superior would ensure that a member of the order was living a life faithful to their vows, fulfilling their duties… Well, the motivation for obedience for religious would be different. It would be based on … religious motivations for … spiritual reasons to imitate, obviously, Jesus. … I mean, you can never obey something that’s immoral or unjust or against … moral principles of any kind. Definitely [it is somewhat more extensive than the realm of obedience that exists in normal civil society], and even within other parts of the church. I mean a priest would make a promise of obedience to his bishop as distinct of a religious makes a vow, they’re very different … shades of obedience, obviously, but a religious’ obedience is more comprehensive … You know, decisions are made with consultation also but there is, at the end, there’s a certain sense of trust, entrusting yourself to your superior …
18. Each Marist Brother surrendered his salary to his superiors and was, in turn, given modest living expenses. Asked about holding property, this witness indicated “I am beyond my competence”. He simply commented that as a matter of canon law, the Marist Brothers were entitled to own property but he added “I have no idea what they owned.” Nor did any other evidence or pre-trial procedure in any way further illuminate what property the Marist Brothers may have owned or the structures within which they owned it. Nor was there any evidence to indicate who precisely Brother McGowan was, what role he had in the Marist Brothers, whether he had held office for a particular time and had a predecessor. No evidence was called on this issue, crucial to the resolution of this case, on behalf of Brother McGowan.
19. From the point of view of vicarious liability, there was evidence upon which Ó Néill J could hold that ex-Brother Cosgrove while a Marist Brother was subject to direction by his immediate superior, in this instance the principal of the school, in ways that were equivalent to an employment contract and perhaps more binding. In terms of ordinary sense, the relationship between persons in religious orders is closer than in employment; the direction by their superior is stronger than that of a boss at work because he or she carries moral as well as financial authority; and the coherence of a group advancing temporal aims for spiritual purposes exceeds that of any secular organisation.
Vicarious liability
20. In the notice of appeal by Brother McGowan, it is pleaded that:
…the learned trial judge erred in fact and/or in law in relation to the finding of vicarious liability by failing to have any regard or any sufficient regard to the fact that [Brother McGowan] was not an employer of [Ex-Brother Cosgrove].
It is also contended that the trial judge erred “in failing to have sufficient regard to the actual employment relationship which did exist between [Ex-Brother Cosgrove] and the school manager.” The argument here is that the abuser was not an employee of the Marist Brothers but was in fact employed by the school manager who, in turn, employed all of the Marist Brothers staffing and managing the school. Again, this is a legal argument and again the absence of contradictory evidence on key issues of fact discloses a reliance on the key elements of the defence.
21. Ordinarily a tortfeasor will have only one employer at the time of the wrong for which the plaintiff seeks damages. There may be cases where the courts are required to determine liability as between two apparent employers. This is not one of those cases, as the only party in respect of which a relationship giving rise to vicarious liability was contended for was that between ex-Brother Cosgrove and the Marist Brothers.
22. The extension of liability beyond the tortfeasor, the party who actually committed the wrong in circumstances which attracts an award of damages, to another party is most often dependent on an employment relationship. That is not always necessary. The modern law of vicarious liability developed from earlier models of strict liability, whereby an innocent party became responsible for the wrong of another by reason solely of a relationship. Historically, the treatment of the origins of vicarious responsibility as set out in Fleming – Law of Torts (10th edition by Sappideen and Vines, New South Wales, 2011) illuminates that relationships apart from employment were one of the strands from which current legal principles developed. At paragraph 19.10 of that work, it is stated:
Vicarious liability is a familiar feature of most systems of primitive law, and early English law was no exception. A notorious example is the erstwhile liability of a husband for the torts of his wife. The responsibility placed upon the head of the household for the conduct of his familia was also the genesis of the master’s liability for the torts of his servants, which, despite a varied history reflecting considerable vacillations of judicial outlook, has remained the principal instance of vicarious liability in modern law.
23. While developments in the common law have most recently focused on control or participation in enterprise as criteria whereby it may be determined as to whether an actual employee, that is one receiving a salary from the party sought to be made vicariously responsible, is within the scope of his or her duties, circumstances outside employment enable a sufficient connection to impose liability on another party. That other is usually sought out because of apparent greater likelihood that they will have the ability to pay. In this jurisdiction, the leading example of a non-employment relationship giving rise to liability for the negligence of another is Moynihan v Moynihan [1975] IR 192. There, a householder was sued for the negligence of another, Marie, in placing a pot of tea covered with a bright tea cosy attractive to a child on a table where the child was left at large. Marie was the two year old child’s aunt and the householder was the child’s grandmother. The reasoning of Walsh J for the majority was dissented from by Henchy J, and has been otherwise criticised judicially and academically. The analysis, nonetheless, harkens back to the historic origins of the law whereby an innocent party may be made liable for the blameworthy actions of another by reason of relationship. At page 197, Walsh J stated:
The negligence attributed to Marie was not the casual negligence of a fellow guest but may be regarded as the negligence of a person engaged in one of the duties of the household of her mother, the defendant, which duties were being carried out in the course of the hospitality being extended by the defendant. The nature and limits of this hospitality were completely under the control of the defendant, and to that extent it may be said that her daughter Marie in her actions on this occasion was standing in the shoes of the defendant and was carrying out for the defendant a task which would primarily have been that of the defendant, but which was in this case assigned to Marie. As the defendant was the person providing the hospitality, the delegation of some of that task to her daughter Marie may be regarded as a casual delegation. Marie’s performance of it was a gratuitous service for her mother. It was within the control of the defendant to decide when the tea would be served and where it would be served and, indeed, if it was to be served at all. It was also within the control of the defendant to decide how it would be served.
24. Dissenting, Henchy J relied on the test which enabled liability to be established to a fault-free party where the relationship is of the party at fault performing work as a servant for the benefit of his master. Non-delegable duties were an exception to that rule, which reflected the distinction, which the law still maintains, between those engaged on behalf of another in a relationship of work and those merely hired on occasion to do a task: the chauffeur and taxi-driver distinction. While disavowing this authority, thus preferring the dissenting view, Professor Heuston in a classic edition of Salmond on Tort (17th edition, Heuston editor, London, 1977), nonetheless acknowledges that employment relationships alone are not the sole basis of vicarious responsibility in tort. Control is nonetheless essential. At page 460-461 the following is stated:
One person may be the servant of another although employed not continuously, but for a single transaction only, and even if his service is gratuitous or de facto merely, provided that the element of control is present. The relationship of master and servant is commonly a continuing engagement in consideration of wages paid; but this is not essential. The service may be gratuitous, as when a child acts de facto as the servant of his father. But this must not be taken too far. The owner of a dog is hardly liable if a friend takes it for a walk and a pedestrian trips over the lead carelessly held. Nor is a householder liable if a guest, as distinct from a hired domestic help, carelessly pours hot tea over a fellow-guest. For it must always be remembered that the mere existence of a right of control is not sufficient to found liability. Otherwise a parent would always be responsible for the torts of his child, or the Crown for the torts of its prisoners.
25. In any defendable analysis of a relationship based on control giving rise to vicarious liability, the distinction between a contract of service and a contract for services must not be blurred. The famous remark by the crane driver that “I will take no orders from anybody” noted in Mersey Docks v Coggins [1947] AC 1 by Lord Simonds at page 20 is in our time even more often replicated in the modern employment relationship where specialist operatives engage in tasks beyond the capability of their employer’s direction. Where even a minimal understanding of how to go about the task is absent from the employer, however, that does not absolve an employer of responsibility. What remains is the duty to engage safe systems and to explore reasonably how such systems might be implemented and to set appropriate rules. Tort law structures itself by imposing liability for the avoidance of future harm. As the Supreme Court of Canada stated in Bazley v Curry [1999] 2 SCR 534 at paragraph 33:
…[b]eyond the narrow band of employer conduct that attracts direct liability in negligence lies a vast area where imaginative and efficient administration and supervision can reduce the risk that the employer has introduced into the community. Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take such steps, and hence, reduce the risk of future harm.
26. Control, nonetheless remains a component part of the test whereby non-employment relationships attract vicarious liability in respect of those who engage in a task on behalf of another. In the instances where such liability was imposed, the degree of control was at a level where the relationship was at an equivalent level to employment. Because of statutory intervention providing for automatic liability of a car owner for the driver, the once illustrative use of vehicle cases are now less relevant. Fleming, however, notes at paragraph 19.50 the following situations:
A road haulier who provides his own truck may be an independent contractor even if the work is almost exclusively for one customer; while a radio artist engaged to participate in a particular play has been held to be a servant despite receiving a fee rather than a salary, because he was subject to extensive directions by the producer. The employment of a servant may be limited to a single occasion or extend over a long period; it may even be gratuitous. It applies alike to a manual labourer, a ship’s captain, a schoolteacher, a circus acrobat, a fireman, and a son occasionally requested to drive his invalid parent in the latter’s car. The continued use of the word “servant” is perhaps unfortunate, because it carries a colloquial connotation far narrower than its legal meaning…
27. This judgment is not to be taken as approving these authorities but as drawing on a relevant analysis. While these are instances of liability imposed outside the relationship of employment, what characterises them is a close scrutiny of the nature of the work provided and the extent and degree of control over that work within a particular context whereby it becomes inescapable that the relationship is equivalent to employment. In this instance, the careful questions of the trial judge illuminated that the obligations then assumed by ex-Brother Cosgrove had such equivalence. Indeed, 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. Within the school, a teaching Marist Brother was equivalently under the direction of the Marist Brother principal of Saint John’s school and any relationship with either the school manager or the Department of Education was, in this instance, a matter of form. On the evidence, it cannot be seen as a matter of control or direction.
28. From the earlier rules, the modern approach to vicarious liability may fairly be recognised as having developed through policy considerations. Those who have control over an enterprise may not be able, as in prior times, to pretend to a knowledge or level of skill equivalent to their workforce, but are enabled to organise the manner of work and relations with those with whom it is engaged so that risks are reasonably anticipated and, through safety measures and training, are minimised. Of course, the absence of such engagement in foresight and prevention may of itself establish fault. The party, however, with the ability to assess risk and to guard against or insure against it will be the organiser of the work, usually an employer. In advancing the economic interests of the enterprise, a corresponding duty has arisen whereby those working for such an enterprise, as salaried individuals, and without the backing of capital, become as one with those who employ them. Tort liability thus pursues its part of the proper ordering of society because it incentivises an enterprise towards safety and away from wrongful conduct. Some will criticise the extension of vicarious liability in such a manner as a pursuit of those who have the ability to pay. As Fleming states at paragraph 19.10:
The effect of vicarious liability on the working of the modern tort system is profound. The link with personal fault is maintained in form, but does not control who pays. Identification of the employee as nominal defendant disguises the reality of the accident cost being borne by a larger, anonymous entity and eventually passed to a wider public.
29. The control test traditionally posits that liability is established where an employee is “subject to the command of the master as to the manner in which he shall do his work”; Yewens v Noakes (1880) 6 QBD 530 at 532 per Bramwell LJ. This formula emerges as strained in the present day, not only because of its archaic use of language. It is better to ask whether the person committing the tort in the course of some task is engaged as an integral part of a business; Stevenson v McDonald [1952] 1 TLR 101 at 111 per Lord Denning. The wrong should be committed, it was once said, in the course of employment and this meant that an employee “going on a frolic of his own” would not render an employer liable. With the emergence of cases where employees acted wrongly and against instructions, even to the point of effectively doing the opposite of what they were engaged to do on behalf of the employer, resort was had to the extension of the concept of what was within the course of employment to those unauthorised acts which could be regarded as wrongful and unauthorised ways of performing an authorised task. Thus in Colonial Mutual Life Assurance v Producers Assurance Co (1931) 46 CLR 41, an insurance agent rendered his employer liable notwithstanding an explicit prohibition in his contract of employment against using any language reflecting on the character or conduct of any person or institution, where he slandered a rival company. The High Court of Australia reasoned that since it was his task to solicit business, it was incidental to that task to select and use the appropriate means of drawing in the business of prospective customers.
30. Lloyd v Grace Smith [1912] AC 716, is the case most often cited by plaintiffs anxious to overcome what might seem a sensible principle that no employer, outside of organised crime, generally engages an employee to perpetrate frauds on customers. There, a firm of solicitors was held liable for the theft of mortgage monies by their managing clerk upon his inducement to a client to transfer the mortgage to him by means of a fraudulent misrepresentation as to the nature of the transaction. One hundred years ago, sexual abuse in a school, residential institution or therapeutic setting most certainly existed but no victim was bringing civil actions for damages. Resort was to criminal charges, if a complaint was believed and this was unlikely as reflected in special rules requiring corroboration of children and the downgrading of the testimony of those who did not understand the concept of an oath. Arching over all of that was a requirement that trial judges warn juries that it was dangerous, not even that it might be, to act on a person’s word unsupported by corroboration. Hence, vicarious liability was concerned with such wrongs as theft during the course of employment.
31. Since those older cases, conduct such as sexual abuse has been determined to fall within the scope of employment, notwithstanding the fact that such conduct is utter anathema to professions, such as teaching, which have as their ultimate aim the enhancement of the human spirit. No one engages a minister of religion to corrupt and denigrate youth. No one employs a teacher to molest children and adolescents. There may have been a time in the progress of the common law when this kind of conduct would have been regarded as beyond the no-fault responsibility of those engaging in work such as that engaged in by ex-Brother Cosgrove. Attitudes were then different. Their conduct might be regarded as akin to a surgeon who, instead of curing in the course of an operation, deliberately causes harm. That approach, of placing such conduct outside the sphere of what an employer can be liable for, is the basis of the dissenting judgement of Hardiman J in O’Keeffe v. Hickey [2009] 2 IR 309. This was another case in which the plaintiff, as a child, was sexually abused at her national school. The first defendant in that case was the abuser, the other defendants being State parties. He reasoned that cases such as Lloyd v Grace Smith and the Johnson & Johnson (Ireland) Ltd v CP Security Ltd [1985] IR 362, where an employer was held liable for thefts facilitated by a security man at a premises he was supposed to guard, were anomalies decided against the principled application of the law related to the control, or were bailment cases, or even cases of non-delegable duty. For him, strict liability was imposed on an employer for the torts of his employee where the acts were “authorised by the employer”, or while unauthorised were “so closely connected to the acts that the employer has authorised that they may rightly be regarded as modes – though improper modes – of doing what has been authorised.” This test is derived from Salmond on Tort, cited above, and goes back to the 1st edition of that work in 1907. Hardiman J said at page 328, citing a similar judgment of Costello J in Health Board v BC [1994] ELR 27:
I could not hold, on established principles, that the act of sexually abusing a pupil was within the scope of the first defendant’s employment. It was the negation of what he was employed to do, an act of gross and obvious criminality. At the time it was committed, in 1973, it was an unusual act, little discussed, and certainly not regarded as an ordinary foreseeable risk of attending at a school.
32. The earlier case of Delahunty v South Eastern Health Board [2003] 4 IR 349 at 377, per O’Higgins J, had left “open to question on a fuller analysis” whether sexual abuse could ever be within the scope of, in that case, a housemaster’s employment. In O’Keeffe v. Hickey, the majority analysis was that of Fennelly J, with whom Murray CJ and Denham J agreed. In that judgment, the decisions of the Supreme Court of Canada in Bazley v Curry (1999) 174 DLR (4th) 45 and of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215 expanded the “improper mode of doing what was authorised” test, as the touchstone of employer’s liability, into a test emphasising the “closely connected” aspect of the Salmond rule. Both cases involved acts of sexual abuse in the context of authority over vulnerable young people, the opportunity for wrongdoing coming with the employment of the actual abuser and the setting within which the employer placed him. These authorities were followed by the High Court of Australia in New South Wales v Lepore [2003] HCA 4. In Lord Steyn’s analysis in the Lister case, at page 320, the issue was “whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.” Lord Clyde agreed and at page 234 suggested that “a broad approach” meant it became “inappropriate to concentrate too closely upon the particular act complained of”; which was clearly what all of the prior cases had been concerned with in connecting the fault of the tortfeasor to that of his faultless employer. Fennelly J commented at page 375:
The theoretical underpinnings of the doctrine of vicarious liability are much debated but no clear conclusion emerges. The result is that strict liability is imposed on an employer regardless of personal fault, which is especially striking when the acts are criminal and could not conceivably have been authorised, even impliedly.
33. Adopting the close connection emphasis, in Lepore, Gleeson CJ at paragraph 74 indicated that there may be a range of relationships authorised by schools in the instruction of or care for pupils. These might range from academic development where the educational environment merely provides an opportunity for abuse to much closer relationships. It might be commented that the former is more characteristic of third level teaching while at primary level, a teacher may take on a mantle more akin to the responsibilities of parental authority. Thus not all instances of the abuse of pupils by teachers came within the close connection test as it has now developed. Gleeson CJ commented:
However, where the teacher student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment.
34. While Fleming comments that the usual means of imposing tort liability is the creation of unreasonable risk, and wonders why “a different approach should be taken to vicarious liability”, vicarious liability should be seen as part of a weave of liability which enjoins responsibility where it should be exercised. The editors of that work continue at paragraph 19.130:
More seriously, it is doubtful whether trying to ascertain whether there was a “sufficiently close connection” between the enterprise and the wrongful act to justify the imposition of vicarious liability is an easier exercise than applying the old “unauthorised mode of performing an authorised task” approach. Both require an examination of what the employee was authorised to do and what was actually done. This difficulty is evident in the continuing unpredictability of the judgments which have attempted to employ the newer language.
35. It may be remarked, however, that legal tests which admit of perfect predictability are more than rare. A test in law seeks to define the parameters within which liability may be imposed, while it is the factual matrix for the application of a legal definition which changes in a potentially almost infinite way from case to case; hence the divergence between practice and commentary. The close connection analysis was adopted by the majority of this Court in O’Keeffe v. Hickey. Certainly, on the traditional Salmond test, no school and no genuine religious order would authorise or endorse sexual predation on vulnerable children or adolescents, and while such torts might be perpetrated by teachers, it did not follow that this, of itself, established a sufficiently close connection for the transfer of liability to the employer. All depended upon an analysis of the particular circumstances. That continues to be the law. Ultimately, the test to be applied is that set out by Fennelly J at page 378 of the judgment in O’Keeffe:
The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J. [in Delahunty v South Eastern Health Board [2003] 4 IR 349] provides an excellent example of the practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 DLR. (4th) 45 the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.
36. In this case, the wrong suffered by Pádraig Hickey through the perverted attentions of ex-Brother Cosgrove were intimately woven into the web of school life. As a pupil, he had but one teacher over that handful of years; the initial setting of abuse was in the context of teaching a musical instrument, a task which requires gentle physical contact as to the proper approach to playing; the sexual violence was continued in a classroom setting; it was most often perpetrated during actual teaching; and it was a pretence at scholastic instruction. All of this establishes not authorisation or approbation, which is not essential to the vicarious sharing of liability as between the tortfeasor and the employer, but rather a close connection between the task devolved to the wrongdoer and the wrong complained of. While criminal and unauthorised, this predation was more than merely a setting for the individual wrong but, instead, was actually made intrinsic to the work which the employee had been engaged to pursue.
Representative order
37. On a consideration of the transcript of the trial in the High Court, it is notable that, after Brother McGowan is mentioned on the first line of the first day, 28th November 2012, there is silence as to who he is, his position and the structure within which he operated throughout the entire trial. On appeal, all sides accepted that he is now the current head of the Marist Brothers in Ireland. The lack of pre-trial procedures relevant to the issue of his status has already been commented upon. Order 15 rule 9 of the Rules of the Superior Courts provides that in a case where there are “numerous persons having the same interest in one cause” then by order of the High Court one of them take an action “or be authorised by the court to defend” for the benefit of or “on behalf … of all persons concerned.” Order 4 rule 9 provides that where an action is taken or defended “in a representative capacity, the indorsement shall show … in what capacity the plaintiff or defendant sues or is sued.” No such application was made. The statement of claim, dated 31st July 2002, is not indorsed in that way but pleads that Brother McGowan “is sued in his capacity as head of the religious order known as the Marist Brothers having its principal office at Moypark College, Clondalkin in the County of Dublin.” Whereas a company is required by legislation to have a registered office, this plea may be taken as merely descriptive of an unincorporated body.
38. On occasion, enough may be done to include those outside a representative order schedule in an action or in the defence of one. That is rare. The strictures in the Rules should be followed because then everything is clear to the parties. In Greene & Others v Minister for Agriculture [1990] 2 IR 17, a group of 5 farmers objected to being excluded from being able to obtain certain payments available under a rural regeneration scheme but pleaded that the action was taken in the name of “all farmers” in areas affected, in particular those hundreds of farmers listed in a schedule supplied to the defendant minister. While the point was taken by the Minister that a representative order was necessary, evidence as to who signed a petition urging the action and made a financial contribution at meetings throughout the country sufficed for Murphy J to conclude that the action was brought on their behalf. In the event the relief sought was refused and the case was settled on appeal. The limits of the evidence in this case have already been mentioned. There is nothing to enable a finding that this is truly a representative action. It is an action against the named defendants.
Unincorporated associations
39. Both sides on this appeal seem to agree that the Marist Brothers have not been incorporated into a company or into any other legal entity recognised by law. It is possible that they now hold property and it is highly probable that in the past, in particular during the dates when one of their number abused Pádraig Hickey, that this was also the situation. All that is known about the Marist Brothers and what property they may own is what may be deduced from the necessarily sketchy evidence of Reverend Professor Mullaney. Sketchy in the absence of any defendant testimony. He indicated that he knew nothing about whether the Marist Brothers “is an incorporated association”. He was asked if they owned property and replied “I don’t know what they owned but … I would say … by canon law they were entitled to own property as an Order, but I have no idea what they owned.” He was not even aware if there was now an “Irish province” of the Marist Brothers. He pronounced himself as “indifferent to the specifics of the case”, but was only testifying as an expert on canon law. Such an organisation “might decide to buy property or own property or hold money in trust”, he agreed, by “setting up a juridical person in canon law.” That “would also have to be compatible [with] whatever is the equivalent in civil law.” But, the normal position would be that “if you set one up in canon law you’d have to have something corresponding in civil law, like a trust, for example. … It depends on the legal system you are in, yes.” Unfortunately, no evidence was offered by the Marist Brothers as to who they were or how they organised themselves or as to their structure. No definite or understandable comment in that regard was made by their legal representatives. Pre-trial correspondence and applications were non-existent in this case. Consequently, no admission to clarify any such matter was sought in open correspondence.
40. Ó Néill J held Brother McGowan liable on the basis of reasoning derived from a case decided by the Supreme Court of the United Kingdom shortly before the trial; Catholic Child Welfare Society & Ors. v. Various Claimants (FC) & Ors [2012] UKSC 56, [2013] 1 All ER 670, [2013] 2 AC 1, and commonly called the CCWS case. There, several pupils at a boarding school run by the De La Salle Brothers, a teaching order similar to the Marist Brothers, were sexually abused by some of their number. At the time the abuse took place, the school had been a residential placement home for children in distress and the teaching brothers partly staffed it, with supervision responsibilities over dormitories. The school owners, a charitable trust, had engaged the order to manage and teach at the school. Obtaining an order against that trust satisfied the claimants. The trust was not content. As co-defendants with the Order, it sought contribution from that unincorporated association of De La Salle Brothers. This failed at trial and in the Court of Appeal but succeeded in the Supreme Court. At paragraph 20 of that case, Lord Phillips set out four propositions which were, ultimately and after analysis, applied by Ó Néill J to this case. These were:
i) It is possible for an unincorporated association to be vicariously liable for the tortious acts of one or more of its members: Heaton’s Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15, 99; Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20, 66-7; Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366.
ii) D2 may be vicariously liable for the tortious act of D1 even though the act in question constitutes a violation of the duty owed to D2 by D1 and even if the act in question is a criminal offence: Morris v CW Martin & Sons Ltd [1966] 1 QB 716; Dubai Aluminium; Brink’s Global Services v Igrox [2010] EWCA Civ; [2011] IRLR 343.
iii) Vicarious liability can even extend to liability for a criminal act of sexual assault: Lister v Hesley Hall [2001] UKHL 22; [2002] 1 AC 215.
iv) It is possible for two different defendants, D2 and D3, each to be vicariously liable for the single tortious act of D1: Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151; [2006] QB 510.
41. Given that the law now accepts that vicarious liability can be established for a crime, but only after a close analysis of the centrality of the wrong to the work engaged, the central issue becomes the liability imposed on Brother McGowan by the trial judge. This raises the question of the liability of unincorporated associations and succession to that liability. It was submitted to the trial judge, as it has been submitted on appeal, that liability can be established only against a person or a body having legal personality in law, such as a company. It appears from the CCWS decision that the De La Salle Brothers operated through a body, called “the Institute”, and it appears as well that counsel for that entity took no point “on the nature of the Institute.” Ó Néill J, even though there was no such concession in this case, applied the following passage from the judgment of Lord Phillips at paragraphs 31 and 32 directly to the circumstances of the case before him:
I can appreciate [the] difficulty in accepting that a De La Salle brother in Australia could be vicariously liable for the sexual assault by a brother at St William’s. Indeed, there is something paradoxical in the concept of an attempt to hold vicariously liable a world wide association of religious brothers, all of whom have taken vows of poverty and so have no resources of their own. So far as individual defendants are outside the jurisdiction this might also have given rise to an interesting question of conflict of laws. This is, however, a long way from the realities of these proceedings and Lord Faulks has not taken any point on the nature of the Institute.
It is open to the claimants on the pleadings to seek to establish vicarious liability on the part of an unincorporated association made up at the relevant times of the brothers world wide, or of members of the London Province, or of the England Province, or of the Great Britain Province. At the end of the day what is likely to matter will be access to the funds held by the trusts, or to insurance effected by the trustees. Whether one looks at the picture world wide, or within Great Britain, the salient features are the same. The Institute is not a contemplative order. The reason for its creation and existence is to carry on an activity, namely giving a Christian education to boys. To perform that activity it owns and manages schools in which its brothers teach, and it sends its brothers out to teach in schools managed by other bodies. The Institute is, for administrative purposes divided into Provinces, each administered by its Provincial. To carry out its activities it has formed trusts that have recognised legal personality. The trusts are funded in part from the earnings of those brothers who receive payment for teaching. The trust funds are used to meet the needs of the brothers and the financial requirements of the teaching mission.
42. Lord Phillips continued at paragraph 33 in seeming to accept that De La Salle Brothers in Australia were unlikely to be responsible for what happened in the local school where the abuse was perpetrated in England. He said:
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.
43. Applying that passage directly, at paragraphs 68 and 69 of his judgment, Ó Néill J held:
In my opinion, 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.
44. The differences between the CCWS case and the present case were stark. What they have in common is the fact that the tortfeasors were in each instance religious brothers bound by ties of obedience and poverty to an identifiable canonical body. In the CCWS case, it had been proven at trial that the De La Salle Brothers had corporate features, “including a hierarchy of authority.” With that feature, the Marist Brothers coalesce. The De La Salle Brothers were proven to have created “legal bodies that are capable of owning property and entering into legal relations” in pursuit of their teaching mission. The structure of the order was described in the CCWS case, and may be akin to the order in this case. It may be governed by a superior in Rome, or elsewhere, though this is not in the evidence, and it may have groups administered locally. This again is not in the evidence beyond a question by counsel for the Marist Brothers to the effect that there “is no Irish chapter”, to which no answer was given. When did that mean and why was there no defence evidence about it? In the CCWS case, it was proven that under the vow of poverty, amounting to surrender of financial autonomy to the superior, there had been set up “a 1947 trust relating to property held” for the London province and the British province. There was also a “1953 trust relating to property held in connection with the England province”. A member of the De La Salle order testified that brothers surrendering their salaries covenanted those earnings to the trust and that the trust had substantial funds derived from “the sale of its properties and from the covenanted funds”. Thereafter it became part of the trust functions to support the brothers in retirement or decline.
45. It seems probable that in this case as well there must be trusts. There must be property held by trusts and of necessity this implies that there are trustees with obligations under trust deeds to the beneficiaries of the trusts. But who are these? What is the nature of the trusts? It could be the present brothers, the past brothers or the pupils who are to benefit. There was no exploration. A trust, absent statutory intervention, cannot under common law sue or be sued because it has no legal personality. While it is common in law reports to have a group of individuals described as the trustees of a particular organisation, the suit giving rise to the case relates to the obligations entered into by them on behalf of the beneficiaries and the discharge of or misfeasance of the duties they have bound themselves into. Cases also exist where a trust is sued for what is done on its behalf. This entity, the Marist Brothers, may be backed by a trust or by several trusts from that time but the order is an unincorporated association with all that implies in law. An unincorporated association is defined in Conservative and Unionist Central Office v Burrell [1982] 2 All ER 1 at 4 as:
…two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms and which can be joined or left at will.
46. An unincorporated association has no legal status of itself but, like a trust, is capable of being proceeded against, or proceeding, in law through its members. Hence, people resort to representative orders. Regarding the peculiar legal status of unincorporated associations, Warburton on Unincorporated Associations (2nd Ed, London, 1992) at page 2 provides the following description:
An unincorporated association has no legal status apart from the members of which it is composed. No separate body with limited liability comes into being on the formation of an unincorporated association…This does not mean that no legal consequences follow from the founding of an unincorporated association. The members have duties and liabilities to each other. The source of those duties and liabilities is partly the general law but mainly the [construction of the] rules of the particular association.
47. Unincorporated associations are a broad category. They can encompass organisations ranging from a local chess or Gaelic Athletic Association club to a highly organised institution like the Marist Brothers. The difficulty with this case is that, in practical terms, the Marists Brothers seem to have many of the characteristics of an incorporated association; to the point where they resemble an incorporated association more than they do a typical unincorporated association for sporting or recreational purposes. The organisation most probably has a clear hierarchical structure, operates both nationally and internationally, it must own, or have owned, land and, without making any impermissible assumptions or inferences, would possess far greater monetary resources and obligations than small unincorporated associations. The order was also, in undertaking to provide primary education, engaging in an activity that has a significant public dimension and which demands a degree of professionalism and responsibility, quite unlike most unincorporated associations. In simple terms, the operation of the Marist Brothers must be far from a local hurling or bridge club, to the extent that any legal rule which would treat both similarly for the purposes of vicarious liability has the potential of leading to unfair outcomes. Any test that would seek to apply vicarious liability to unincorporated associations must take this distinction into account.
48. Lord Phillips posits the proposition at paragraph 20 that an unincorporated association can be liable vicariously for the wrongs of those acting for it. He seems to mean the association itself assuming corporate status while not being a corporation. That does not represent the law. Where people group together to employ someone, are not incorporated, and that person negligently injures someone, the members of the group can, however, be liable. That is different. This means no more than that members of a group responsible at the time for the negligent organisation of an event share liability. That liability appears to be a present one and not a continuing one. That is not to somehow incorporate a group, to give it legal personality. It is the individual members, not generally those who succeed them, possibly subject to an observation as to corporation made later herein. So, a group or association is not like a trust. Trustees can be succeeded, but the obligations under the trust deed remain and the trust property continues to be held. But, a group of religious brothers bound by oaths may change as to membership, people may leave and as in really old cases of sexual abuse, people will die or retreat into ill health. Of the cases cited by Lord Phillips for that proposition, vicarious liability was found against a union in picketing in Thomas v National Union of Mineworkers [1985] 2 All ER 1 because of the actions of a local branch; Heatons Transport Ltd v TGWU [1972] 3 All ER 101 was about liability of a union for the actions of a union official; and Dubai Aluminum Co Ltd v Salaam and others [2003] 1 All ER 97 concerned the liability of a partnership. There is no analysis in these cases of the liability of members of an association for the actions of a person who does something for them. Lord Phillips simply states the principle but the cases do not support it by any statement of principle. As O’Donnell J also observes in his judgment in this case, these are not examples of purely unincorporated associations.
49. There must, as a matter of ordinary logic, be occasions where unincorporated associations, consisting of the body of members of the association, may become liable. Warburton states that the members of an unincorporated association may become liable where, firstly, they are all carrying on the activities in question or, secondly, “where they are in overall control of activities being carried on by some of the members.” The examples given are of Evans v Waitemata District Pony Club [1972] NZLR 733 where a club put on a horse show but organised it negligently, thus allowing the plaintiff to be injured and Stone v Bolton [1950] 1 KB 201 where the Court of Appeal acted on the assumption that members of a cricket club could be liable for a cricket ball injury in nuisance because of occupation and the House of Lords, [1951] AC 850 in negligence. In the result, there was no liability because, according to Lord Normand, “It is not the law that precautions must be taken against every peril that can be foreseen by the timorous.” The party charged with responsibility was the committee of the cricket club. There is no discussion in these cases as to the point on the nature of the committee. Real authority is therefore thin but is supplemented by the analysis and authorities cited in the separate judgment of O’Donnell J; see particularly the compelling analysis by Gannon J in Murphy v. Roche & Ors (No.2) [1987] 1 IR 656.
50. On first principles, however, a proposition of several people engaging another to do a job, but who acts negligently on behalf of the group, is similar to an employment situation. The difference is that the employer is not a corporation or a person but is a group. If three people decide to operate a green grocer’s shop and engage as part of their joint enterprise another person to sell their wares, but that person contaminates the produce with bacteria, causing illness in consumers, no principle is identifiable whereby the three operators of the shop may escape vicarious liability. In the cases cited, it was the committee of the cricket club or the horse gymkhana that set up the situation who were variously made liable. In a club it is the same, though usually the actual organisers are engaged.
51. As for the proposition put forward by Lord Phillips that an individual tortfeasor may have two masters, this may be so but it must surely depend on control. It may not be so different to liability by a group in respect of a person engaged on a task for them, supposing the employee and independent contractor issue is resolved in favour of the plaintiff. The test of control over the work of the employee is, in a more specialised era, better expressed in terms of consideration of the issue of who has the authority to organise the work, its rules, its direction and appropriate safeguards. All may be done properly by the employer but the employer may nonetheless be liable because of the attribution of fault due to control. There may be situations where the employee is genuinely under the control of two masters, but as control is the test, no facile resort to multiple liability is possible. Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151; [2006] QB 510 is authority for the proposition that a worker on a building site who causes a flood can be working for two separate contractors. It would follow that if an unincorporated association can be liable for the actions of one who, in the course of fulfilling their instructions, acts negligently, there is no reason why two employers cannot be charged with the responsibility for ensuring the proper working of an employee. The ordinary, and almost invariable situation, is that as a matter of fact it will be clear that a particular worker is tasked to a particular job under the control of what will be a clearly identifiable employer. That factual situation is not going to change save in rare circumstances.
52. Thus it is established that a plaintiff may sue a group who have employed a person on a task but where due to that person’s misconduct or negligence the plaintiff is injured. Liability in that case is of the group jointly and severally for the tort vicariously attributed to them. In O’Keeffe v Hickey, a principal issue was the liability of the State for sexual abuse perpetrated on the plaintiff by a teacher when she was a pupil in a national school. The majority held that the State could not be liable because there existed no sufficiently proximate relationship between the State and the teacher amounting to control. In his dissenting judgment at paragraph 180, Geoghegan J considered that “exemption from vicarious liability by the State is not just.”
53. This is the first case, certainly in this Court, where this point of no liability because of no incorporation has been raised. With discovery, it might have been ascertained what assets were held by the Marist Brothers and through what legal vehicles. Those could have been joined in the suit using the O’Byrne letter procedure; section 78 of the Courts of Justice Act 1936, but now there are obligations such an initial letter under section 8 of the Civil Liability and Courts Act 2004.
54. What has gone before might usefully be summed up. A group, such as a club or a committee or a religious order, can employ or engage a person in a quasi-employment relationship to work for them. The wrong of that person may make the entire group liable on the same basis of vicarious responsibility as a corporation or other employer. The case law counsels swift action, however. The group is unincorporated. So, it does not continue. With the passage of decades, considerations other than limitation of actions arise. New committee members, new members of the club, new members of the religious order have nothing to do with the liability of their predecessors. That is the nature of unincorporation: rights and liabilities do not continue despite people calling themselves the same name. When they are gone, the liability is not passed on. An exception may arise, however, where one of the group on which vicarious liability is imposed is a corporation sole, for instance a bishop. His successors may remain liable provided that the concept of corporation sole is argued and found applicable. This reasoning dissents from that of O’Donnell J that an allegation against Brother McGowan that he is now head of the Marist Brothers, equates to a plea that he, as the current head of that organisation, was a member back in 1972 and is consequently vicariously liable. There surely would have to be a plea to that effect? There was not. If there had been, surely Brother McGowan would have been on notice of this point and would have given evidence as to when he joined the Marist Brothers. But, even still, ordinary fairness in procedure surely requires that Brother McGowan and Pádraig Hickey be enabled to give evidence.
Corporation sole
55. Liability, on the other hand, if it exists, based on the continuation of responsibility from head of the Marist Brothers to head of the Marist Brothers is consistent with the basis of suit. It may be that an exploration of the nature of the Marist Brothers will indicate that its head can be recognised as a corporation sole. While on the hearing of this appeal, the argument centred on who Brother McGowan was and how and whether he could be made liable, in O’Keeffe v Hickey the position of the school manager, a priest appointed by the bishop patron as in this case, was discussed. In particular, there was a serious issue as to “why the Church was not sued.” Geoghegan J records that the answer was a practical one of finding the personal representatives of the estates of the manager and patron of the school liable because, as in this case, the passage of decades had seen them die before proceedings were issued. The parents in the case had taken the advice of a journalist on the abuse being revealed by one small girl and after a boycott after a heated meeting by parents, the abusing teacher had left the school to take a position elsewhere but no complaint was made to the Department of Education or to the gardaí. These were different times. At paragraph 181, Geoghegan J commented:
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 the diocesan assets. But none of that arises here. I think there have been many cases in the past where actions have been brought against a diocese relating to events that occurred under a former bishop and where a current bishop would not take the point either as a matter of honour or because of insurance cover or both. But again none of that arises in this case.
56. That observation did not amount to a ruling that a bishop was not a corporation sole. The matter does not seem to have been argued. This category of artificial persons had its origin in ecclesiastical law; see FW Maitland – The Corporation Sole (April, 1901) LXIV LQR 335. Most often it is a bishop of a diocese but at common law it seems to be recognised that it can also be other clerics. Some jurisdictions such as the United States continue to recognise the corporation sole; see James B O’ Hara – The Modern Corporation Sole (1988) 93 Dick L Rev 23. The concept was imported at common law into that jurisdiction but has for centuries been regulated by statute for the purpose of holding property and for the succession of rights of action or liability for civil wrongs committed by its servants. Now, because of statutory recognition within the states of that union, corporations sole are entirely creatures of statute and the common law concept has ceased; Wright v Morgan (1903) 191 US 55 at 59.
57. Nonetheless, within that jurisdiction corporations sole as applying to the Catholic Church were recognised at common law following the Declaration of Independence. That had been the case in England, and by extension also in Ireland at least prior to the application of the Reformation. Blackstone, in his Commentary on the Laws of England (1765-1769) at 457 distinguishes corporations sole from corporations having “many persons united together into one society, and are kept up by a perpetual succession of members”. Blackstone extends the scope of the concept outside that of the English monarch and bishops in the same passage:
Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a sole corporation: so is a bishop: so are some deans, and prebendaries, distinct from their several chapters: and so is every parson and vicar.
58. It is to be noted that the early editions of Halsbury’s Laws of England, as of the time of Irish independence, follow that concept. The second edition of that work, in 1933, just prior to the enactment of the Constitution, states that an “archbishop, a bishop, a prebendary or cannon, a dean, an archdeacon, a parson, a vicar and a vicar choral are each a corporation sole.” It is an open question if this law applies to the Catholic Church and in particular to persons exercising equivalent or parallel positions. With the penal suppression of the Catholic Church in England and Ireland, legal recognition was expressly confined to the Anglican Church. Did that change the law, making it possible only for Anglicans to have corporations sole and not Catholics? Could that really be the law of this country? Is it possible that in disestablishing the Church of Ireland in 1871, the abolition of every ecclesiastical corporation also accidentally applied to the Catholic Church? The principle against accidental alteration of the law may otherwise suggest; see Bederev v Ireland & AG [2016] IESC 34. The utilitarian nature of the law at the time of Blackstone makes it clear that the necessity for the institution means that it applied to the person as a corporation by reason of his nature and function:
[T]he necessity, or at least use, of this institution will be very apparent, if we consider the case of a parson of a church. At the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and incumbrances; or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law, therefore, has wisely ordained, that the parson quatenus parson, shall never die, any more than the king; by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also.
59. Since the Anglican Church seems to have inherited the rights and obligations of the former church, the concept seems of general application. Certainly, to exclude, as in the times of penal suppression, one church would not seem right. It has not been argued as to whether this position continues to obtain under Bunreacht na hÉireann and in particular Article 50. Halsbury (5th edition, 2008) volume 24 at paragraph 314 states:
A corporation sole is a body politic, having perpetual succession, constituted in a single person, who, in right of some office or function, has a capacity to take, purchase, hold and demise (and in some particular instances introduced by statute, power to alienate) real property, and now, it would seem, also to take and hold personal property, to him and his successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is there may be, and often are, periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy, or no one in existence in whom the corporation resides and is visibly represented. Unlike a corporation aggregate, a corporation sole has a double capacity, namely its corporate capacity and its natural or individual capacity; so that a conveyance to a corporation sole may be in either capacity.
60. Liability of Brother McGowan as a corporation sole succeeding to the liability of the head of the religious order when this abuse was perpetrated, whether he is a corporation sole, if that legal entity continues in Irish law, cannot be decided now. It has not been argued because the focus was on the failure to establish the liability of an unincorporated group. There can be liability on a set of persons. That is not to make the group into a corporation. It is to acknowledge liability to the victim of a tort of those who organised an employee or quasi-employee, a religious brother. That liability is against each person in the group as it then was. That liability does not continue unless one of them is a corporation sole. Then it may, depending on the state of the evidence. On the state of the evidence, the teaching by ex-Brother Cosgrove was for the Marist Brothers. There is now and there was then a head of that unincorporated association. The head of the Marist Brothers had to be a member of the group in respect of whom vicarious liability arises. The successor to the corporation sole may still carry that liability depending on the viability of the concept of corporation sole in Irish law. As this discussion illustrates, that concept is uncertain. That is a matter for argument in the High Court, or since the majority disagree with a retrial and would simply uphold liability against Brother McGowan, a point for some other case.
Retrial
61. While the judgment and order of the High Court must be reversed, the issue arises as to whether there should be an order for a retrial. Such a retrial would focus solely on the continuation of the concept of corporation sole in Irish law and its applicability to the head of a religious order. It would leave in place the findings of vicarious liability upheld in this judgment. Such an order has been sought by counsel for Pádraig Hickey in the event of the order of the trial judge not being upheld on appeal.
62. Order 58 rule 29 of the Rules of the Superior Courts, provides that subject “to the provisions of the Constitution and of statute” the Supreme Court may “exercise or perform all the powers and duties of the court below” and “may give any judgment or make any order which ought to have been made and may make any further or other order as the case requires.” The former rule was Order 58 rule 9, but there are no decided cases noted on the circumstances wherein this Court ought to order a retrial in Delaney and McGrath – Civil Procedure in the Superior Courts (Third Edition, 2012, Dublin) at page 717. The matter is therefore one where this Court must be guided by experience as to the right form of order to make in such a case.
63. No proper exploration was made as to the concept of corporation sole at trial in the High Court. This is despite the issue being mentioned in the leading case in this area, namely O’Keeffe v Hickey. It would be wrong for this Court to decide that issue in the absence of argument. As it has been alleged in the High Court that Brother McGowan was sued as representative of the Marist Brothers, that encapsulates an allegation that he is liable as part of the unincorporated group. If the concept of corporation sole applies to the head of that order, and he is the successor, the liability from 1972 continues. It would not be right, however, for each side to be deprived of an opportunity to argue this point. Further, it would not be appropriate for this Court to decide it, as it may require evidence. But why, as with so much else, was it not previously argued and is it right to allow a retrial on this issue?
64. Experience suggests that the normal circumstance whereby a retrial of a specific issue is ordered on appeal is where an error of law by a trial judge has resulted in an order that does not accord with law. Sometimes cases are sent back in that context for the hearing of further evidence or submissions in order that a correct order may be made. Sometimes, as in this case, only a defined portion of the case is reverted to the High Court. In the consideration of any such issue, the justice of the case must be the touchstone by which a decision is made.
65. It may be argued that the consequences of the various steps taken in this case in the High Court should not be visited on Brother McGowan or on the Marist Brothers. That argument may sound in costs, but in the wider context procedural wrangling cannot be allowed to be productive of injustice. Litigation is not solely about the interplay of rules which carry little or no consequences, as in a game. The results of litigation seriously affect the parties to that litigation and the legal system strives to afford relief not to those who are best at its manipulation but rather to pursue the cause of justice. At all times the Marist Brothers knew that they were being pursued for vicarious tort liability in respect of their former member, Christopher Cosgrove. As in other cases, the CCWS decision being a case in point, it would have been possible for that order to have presented evidence with a view to assisting the judge as to a proper determination. It is less than satisfactory for civil cases to be defended on the basis of some parallel with the right to silence in criminal law.
66. There is a further point. The issues as to identity and succession to or continuation of liability have surfaced in other cases, most particularly in O’Keeffe v Hickey. These issues are of high public importance. On this appeal, this Court cannot resolve them because of the deficit of evidence available to the court. In addition, the matter should be argued at first instance. It is only by adducing such evidence that this case may be properly resolved. The duty of the Court is to make such order as the case requires.
67. The matter should therefore be referred back to the High Court to that limited extent.
The Civil Liability Act
68. Ó Néill J reduced the damages in this case on the basis that the plaintiff ought to have pursued the school manager. The argument presented was that the pursuit of the school manager would have yielded another party with liability to damages. The argument made on behalf of Brother McGowan was that s. 35(1)(i) of the Civil Liability Act 1961 required that reduction. The section provides that for “the purpose of determining contributory negligence”:
where the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer;
69. On this point, the trial judge ruled at paragraph 75:
Whilst I am satisfied that in law, there can be dual vicarious liability in respect of tortious acts of another, in this case, I am satisfied on the evidence that by far the greatest element of control over the teaching activities of the second named defendant rested with his superiors in the Marist Congregation and the manager of the school had little or no role to play in any of this. The manager did, however, retain his residual legal authority over the contractual arrangements between the manager and the second named defendant, an authority which cannot be treated as negligible or a nullity. However, a fair apportionment of liability and, it would seem to me that such an apportionment is necessary in this case to assess the extent of the liability which the plaintiff must assume pursuant to s. 35(1)(i); must be of small degree. Thus, I would assess the liability of the manager at 10% of the overall liability.
70. The Act of 1961 provides at s. 11 that “two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to … the injured person … for the same damage.” Specifically that can occur through vicarious liability of one for another, breach of joint duty, conspiracy, concerted action to a common end or independent acts causing the same damage” as per subsection (2)(a). The wrong may be “a tort, breach of contract or breach of trust, or any combination of them” as per subsection 2(b). Under s. 12, concurrent wrongdoers are “each liable for the whole of the damage in respect of which they are concurrent wrongdoers.” Liability may then be apportioned by a court “in such a manner as may be justified by the probabilities of the case”. The rules dealing with apportionment of damages are set out in section 14. Contributory negligence is defined in section 34. Damages are apportioned according to the degree of fault or, if this is not possible, equally.
71. Here a divergence occurs from the separate judgment of O’Donnell J. In dissenting on this point, it must be identified that the order of Ó Néill J is founded on a clear finding of fact that the controllers of the school were the Marist Brothers. That finding of fact is not to be disturbed. This is not a case where there can be two employers. With the passage of time, those with experience of being a parent will know that the dangers ignored or pretended out of existence have now been addressed by the ‘Stay Safe Program’ for empowering children to realise the inviolability of their own bodies. As was commented by May LJ in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others, it is usual in most cases for it to be obvious who, in terms of a possibility of a worker having differing employers, was in charge of the work. As previously said in this judgment, cases where two groups of employers are responsible for the one person are necessarily rare. This is not one of the cases. The school manager was on the evidence rarely present in the school, had little to do with management and nothing to do with the day to day running of the school. Thus there is no basis for the application of contributory fault to the manager in this case. A division of 50% responsibility to the present and the absent defendants therefore does not arise. An employer was clearly identifiable from the evidence.
Damages and contribution
72. O’Donnell J reasons for the reduction in damages to €150,000 and that figure reflects the nature of the case and the limits placed elsewhere on general damages. On the analysis in this judgment diverging from the proposition that two employers are not identifiable in this case, that figure should not be reduced by 50%. Even if two employers were identifiable, fault should not automatically be 50/50 but on the basis of the contribution to the wrong. Here, on this analysis, it would be to the complete exclusion of the nominal employer, because in effect he had nothing to do with this. Thus liability would be 100%
Order
73. There is substantial concurrence, but a few important areas of disagreement, in this judgment with that of O’Donnell J. In order to clarify where the accord lies and where divergence should be identified, the following observations are made, for the sake of clarity, based on the reasoning herein:
1. The judgment of Ó Néill J in the High Court cannot be upheld on the basis he reasoned as to the liability of a religious order, as this makes an unincorporated association into what is in effect an incorporated entity with succession to liability no matter what change of membership, O’Donnell J and the majority of the Court concur;
2. Depending on the circumstances, those running a school or educational establishment may be liable when a teacher sexually assaults a child, O’Donnell J and the majority concur;
3. An unincorporated association can be liable in damages through it members and the members can be vicariously liable for actions done in the course of a task assigned by the members, including abuse during teaching, but that liability is of those for whom the task is done at that time and those who join a group after a tort is already committed cannot be liable, O’Donnell J and the majority concur;
4. Since an unincorporated association can have liability for the actions of its employees, the individual members of the Marist Brothers in Ireland as of 1972 are liable for sexual abuse perpetrated by one of their number while acting on their behalf as a teacher, O’Donnell J and the majority concur;
5. As to the liability of the members of this unincorporated group, Brother McGowan was not proved, and was not alleged in pleadings or in evidence, to have been a member of that order at that time when the abuse was committed and the burden of proof is on the plaintiff, and that fact should have been alleged in order to enable contrary evidence from Brother McGowan, fair procedures, but here there is neither pleading nor positive evidence to that effect, dissenting from O’Donnell J and the majority who would uphold the High Court judgment on the basis explained in his judgment;
6. Reduce damages to €150,000 in order to keep damages within a rational range in the context of the maximum available for the worst personal injury cases, concurring with O’Donnell J and the majority;
7. While in some instances of employment, there may be two employers, O’Donnell J and the majority concur, here, on this evidence, there is only one – namely the Marist Brothers, not the manager of the school, dissenting from O’Donnell J and the majority;
8. It follows that the amount of damages cannot be reduced under the Civil Liability Act, dissenting from O’Donnell J and the majority;
9. The head of the Marist Brothers in Ireland may be a corporation sole. If so, since in 1972 the head was part of the unincorporated group, his liability may continue, but this point is obiter as are any comments by O’Donnell J on this issue;
10. There should be a retrial in the High Court, but not as to the liability of those running a group of teachers, a religious order which is more than equivalent to an employment relationship, one of whom abuses a pupil, that is decided herein, nor as to the particular liability of the abuser, that is decided, nor as the liability of members of an unincorporated group or association one of whom abuses a child sexually in the course of duties assigned by the members, that liability is possible and is decided herein, but solely on the narrow point as to whether the legal personality or corporation sole is part of Irish law and whether it applies to Brother McGowan as successor to the head of the Marist Brothers in Ireland, O’Donnell J would uphold the judgment of the High Court on the narrow basis set out in his judgment from which, on that specific point, this judgment dissents;
11. Liability of a corporation sole and the position of the head of the Marist Brothers should be the only point retried in the High Court by way of evidence and legal argument, but there should be a retrial in respect of that, O’Donnell J and the majority would not order a retrial since his position is to uphold liability based on his contrary analysis on point 5.
Lawlor v O’Connor and another
High Court.
20 June 1929
[1929] 63 I.L.T.R 103
Meredith Johnston JJ.
June 19th and 20th, 1929
Mtredith, J.
This is an unfortunate case for the plaintiff. The position as between Walsh, the driver of the truck, and the defendants is, that if the accident had occurred by the driver negligently running down some one when engaged on his master’s errand, then the injured person would have his ordinary rights as a member of the public not to be injured by negligence, and in that state of facts the owners of the truck would be liable.
But in this particular case it seems quite clear to me that the negligence by which the plaintiff was injured was not against her as a member of the public, although she did not lose her rights as such by being forced on to the running-board of the truck, but that the injury was caused by the lack of care shown in performing the undertaking to carry her.
The question then arises who gave the invitation or undertaking to carry the plaintiff. I am of the opinion that it was not the defendants, and this is borne out by the fact that the truck was not constructed to carry passengers. I think that Walsh gave the undertaking to carry and that the injury was caused by his wrongful, wilful act, which was entirely outside the scope of his employment.
If the accident had happened when the plaintiff was being forced on to the runningboard, it is clear that the defendants would not have been liable. As it was, the accident occurred 70 yards further down the road, but still only in relation to the undertaking to carry given by Walsh.
I am therefore of the opinion that the judgment of the learned Circuit Court Judge should be upheld.
Johnston, J.
I concur. I see no facts on which the defendants can be made liable in damages.
The plaintiff was not a licensee of the defendants, so the law dealing with this aspect of the case need not be considered. I view the whole transaction as unauthorised and one part of it cannot be separated from another. I concur with the view of the learned Circuit Court Judge that the injury arose out of the assault by Walsh on the plaintiff and that the defendants are not liable.
Brady v Morris and Igoe
High Court On Circuit.
15 July 1938
[1939] 73 I.L.T.R 24
Murnaghan J.
Murnaghan, J., said that this was a troublesome case and in some respects a difficult one. The plaintiff had undoubtedly sustained considerable injuries and his business had been interrupted. It was an unfortunate occurrence and the question arose whether he was entitled to damages against the defendant, Morris, and consequently, if he were, whether the damages should be measured at a greater sum.
It was unfortunate that this van was driven by a man who had no right to drive it, but the law in the circumstances was that Mr. Morris was as responsible for what Igoe did as if his own driver were actually driving. His Lordship said that he could not refrain from commenting on the impropriety of Igoe’s taking the wheel of the vehicle he was not entitled to drive, but as far as the legal question was concerned he need not go further but would try the case as if the van were driven by Mr. Morris’ driver on the occasion.
There was no doubt that anything done in the driving of the van that was within the direct instructions of Mr. Morris or that could reasonably have been implied from the circumstances to suggest that the driver was acting within Mr. Morris’ authority made the owner of the van liable for the accident. On the other hand the owner of the van or car was not responsible if some unauthorised person drives the van on some venture of his own Not only was that the case in reference to an unauthorised person, but if the driver who was authorised to drive for the purposes of the master’s business, or in a way that could reasonably have been said to be in connection with the master’s work, so drove, the master was liable. But if the servant drove on a venture of his own outside the scope of the master’s business, and in circumstances which did not justify an implication that it was connected with the master’s authority, he was liable, but the master was not.
In this case there was definite evidence— as to which there was no conflict—as to what the master had employed the driver to do: to gather the mails, to go out to the Post Offices in the country, to bring out the newspapers, to collect the letters, and bring them back. And if the work had been anything in connection with that no question could have arisen. But the difficult question did arise because this driver Smith *24 had received some parcel from a person unknown to him who had asked that the parcel should be delivered to Wheelan’s in Cavan. The accident had occurred after the master’s business in the natural course of things would have been completed, because after having been at the railway station the van was to have been put into the garage and all the evidence was that it would have been driven in to the garage from the railway station only for this unfortunate parcel. Smith had said he left the parcel in a bag that was on the rack in the Post Office, that his memory was confused, that at the railway station he thought he had delivered the parcel, that they went to the Post Office and there they changed their minds. His Lordship did not know how much of that to believe, but the one matter that was clear was that after the mails had been delivered at the railway station the van would have been left in the garage, unless Smith or Igoe for some purposes of their own desired to go through the town of Cavan, unless it could have been held that the delivery of the parcel was part of the authority given by Mr. Morris, acted on by Mr. Smith.
His Lordship said that he had examined this question with a great deal of sympathy towards the plaintiff, but in the circumstances of this case it would be going much further than the facts warranted to hold that the driver had made Mr. Morris liable. It was not any part of Mr. Morris’ business to accept casual parcels. He did not see how it could be strictly within the competence of the driver to accept that parcel on behalf of Mr. Morris. If the driver had accepted it he was doing something out of good nature and it was not part of the business on which he was engaged. It was not possible to say that he could, in the absence of instructions, reasonably have considered that it was within his duties to take parcels for delivery. Since it was not within the scope of the employment on which he was engaged the venture must be regarded as something that was done by him without authority.
Mr. FitzSimon had pointed out that even if an employee makes a diversion—that is, if instead of taking the direct route he takes a more circuitous route—that the latter route has been held to be connected with the master’s business and that was so. But it was impossible to say that this route was a circuitous—as distinct from a mere direct— route having regard to the locality. The driver could have put back the car in the garage by turning and going up the lane before entering the town, but he had gone through the town and then turned back again.
His Lordship held that by reason of the venture having been connected with the delivery of a parcel that had nothing to do with Mr. Morris’ business or the scope of the authority which he had given to his servants, that Mr. Morris was not responsible. Accordingly he reversed the decree so far as it affected James Morris.
Byrne v Ryan
[2007] I.E.H.C. 2007
JUDGMENT of Mr. Justice Kelly delivered 20th day of June, 2007
INTRODUCTION
This is a claim for damages for negligence arising out of a failed sterilisation of the plaintiff. That sterilisation was sought to be achieved by a tubal ligation which was carried out in the Coombe Hospital on 16th December, 1999. Subsequent to it, the plaintiff bore two children.
She brings this claim against the defendant, who is the nominee of that hospital.
The plaintiff seeks damages under two headings. The first claim is for what her counsel described as the physical consequences of the failure of the operation. The second is for the recoupment of the cost of rearing the two children until such time as they cease to be dependant on their parents. In monetary terms this claim is by far the larger of the two.
Apart from the usual difficult questions which a court has to deal with in any medical malpractice suit this case has raised two others, neither of which have been the subject of judicial determination in this jurisdiction. The first is the vicarious liability, if any, of a public hospital for the negligence of a consultant doctor on its staff in treating a public patient. The second is the entitlement to recover damages for the cost of rearing a healthy child born subsequent to a failed sterilisation.
Neither of these questions will, of course, have to be answered unless the plaintiff proves that the operation in question was a failure and that its failure was as a result of the negligence of the consultant who carried it out. It is to these questions that I turn in the first instance.
The Plaintiff
The plaintiff was born on the 6th May, 1962. She married her husband Daniel on 13th October, 1979. She was then seventeen years of age.
The first of her seven children, James, was born on 17th December, 1979.
The plaintiff had a miscarriage in 1980.
On 27th December, 1981 her second son, Derek, was born.
On 19th November, 1984 she had twins, Donal and Aisling.
Her fifth child, Alan, was born on 19th June, 1988.
The plaintiff was dealt with in the Coombe Hospital for each of these confinements and for the miscarriage which took place in 1980.
In 1991 she had an ectopic pregnancy despite taking the oral contraceptive pill. Again she was treated in the Coombe Hospital. Following that experience she attended at the Adelaide Hospital for advice on the question of sterilisation. She decided against it. Throughout the 1990’s she took the oral contraceptive pill.
In 1997 the plaintiff was involved in a motor accident and inter alia suffered depression as a result of it.
By late 1998, the plaintiff had decided that she did not want to have any more children. She was quite definite about it.
The plaintiff’s general practitioner was Dr. Brian Dunne. She consulted him on the question of sterilisation. As a result he wrote a letter of referral to the Coombe hospital in the following terms:
“19th November, 1998
Gynae Clinic
Coombe Hospital,
Dublin 8
Re – Bridget Byrne, 1567 Lee Drive, Calverstown, Kilcullen, Co. Kildare.
Date of Birth 06/05/1962.
Dear Doctor,
I would be grateful if your (sic) send Bridget an appointment to be assessed for tubal ligation.
She has five children and had a tubal pregnancy in 1991.
Many thanks.
Yours sincerely,
Dr. Brian Dunne”.
It was as a result of that letter that she ultimately came under the care of Dr. Charles Murray.
Dr. Charles Murray
Dr. Murray qualified in medicine at University College, Dublin in 1962. He then went to Leeds United Hospital were he worked in the women’s and maternity hospital. Whilst there he obtained his membership of the Royal College of Obstetricians and Gynaecologists. Thereafter he went to the United States on a research fellowship. He returned to the Coombe Hospital in 1969 as Assistant Master. He was then made Senior Registrar and in 1975 became a Consultant at that hospital. He remained as a Consultant at the Coombe until his retirement in June, 2001.
Dr. Murray has extensive experience of performing tubal ligations. He carried out his first such operation in the middle of the 1960’s in England. At that stage the procedure was done by open surgery. It was not done laparoscopically until more recent times.
Dr. Murray recounted that in his early years “tubal ligation wasn’t tolerated” in the Coombe Hospital. Then the board of the Hospital allowed it in restricted circumstances. Following the decision of the Supreme Court in the McGee case (McGee v. Attorney General [1974] I.R. 287), all of this changed. To use his own words “the law changed and things changed from there. So I did an awful lot of them.”
He recalled that he was asked by the then Master to take over the family planning clinic at the Hospital. He described that title as a misnomer because what he called “standard family planning” was conducted elsewhere and the patients referred to this clinic were almost universally sent for consideration for tubal ligation. Thus it was he who was in charge of the conduct of tubal ligations in the Coombe Hospital for many years. By the year 2000 he estimated that he would have carried out that procedure “in the high hundreds and probably in the thousands”. He was therefore a consultant of great experience in tubal ligation.
The operation
The plaintiff was considered suitable for tubal ligation and it was carried out on the 16th December, 1999 by Dr. Murray. Not surprisingly he had no recollection of the operation but the theatre records and operating notes of the procedure had been kept and he was able to refresh his memory by reference to them.
The procedure was carried out laparoscopically. Dr. Murray described filling the plaintiff’s abdomen with three litres of carbon dioxide gas and then inserting the relevant instruments around the belly button area. He discovered that there were multiple adhesions from the anterior abdominal wall present. That was because the plaintiff had had previous surgery and also had had an ectopic pregnancy. He dealt with those adhesions as part of the procedure. He was able to dissect them off with the instruments which he was using so that he could see what he was supposed to be doing. Then he “just clipped the tubes”. He said there was a little difficulty because of the adhesions but he was satisfied that he had clipped the tubes.
Dr. Murray went on to say that over the years there were three or four instances where he was not altogether happy that he had achieved a satisfactory tubal ligation. In such circumstances he organised a histo- salpinogram to be carried out some six weeks after the operation. He did not do so in this case.
Following the operation Dr. Murray wrote to Dr. Dunne as follows:
“This is just to let you know that your patient Mrs. Byrne had a laparoscopic sterilisation undertaken here a few weeks ago. The operation was straightforward and she was discharged a few hours later”.
In evidence Dr. Murray said that the use of the term “straightforward” in that letter meant that there were no complications. He pointed out that the procedure is fraught with a lot of serious things which may go wrong such as damage being caused to the bowel, to the bladder, or to blood vessels. What he meant by the letter was that nothing of that nature occurred.
It is quite clear that Dr. Murray believed that he had carried out an effective tubal ligation. He believed that he had been able to deal with the adhesions and had clipped the plaintiff’s tubes. Had he had any doubts about, this I am satisfied that he would not have proceeded laparoscopically but would have changed to an open procedure and/or would have had a histo-salpinogram carried out. He was fully satisfied that the operation done by him was a success.
Unfortunately Dr. Murray was wrong. It is common case that a second tubal ligation was carried out on the plaintiff in December, 2002. It was done by Dr. Peter Boylan. He made a video recording of the procedure. The video was seen by Dr. Murray and he accepted (and indeed had no doubt) that, rather than clipping one of the plaintiff’s fallopian tubes, he in fact attached the clip to tissue just beside it. He was unable to explain how this happened. Counsel then put the following questions to him:
“Question: Doctor, I have to suggest to you that if you had been using the care which was appropriate to somebody of your experience and eminence that would not have happened? Answer: I was a very careful surgeon all my life.
Question: I understand that.
Answer: And I operated carefully. I cannot explain why this happened or how it happened but I would reject the idea that I wasn’t careful.
Question: But it is not something that can happen if the procedure which you have described is carried out carefully? Answer: Well, we were dealing with adhesions here. I freed adhesions to a degree that allowed me, as far as I was concerned, to establish – I was not looking for the full length of the fallopian tube but for an area of tube that I could clip… Question: So the existence of the adhesions did not prevent you from identifying the fallopian tube?
Answer: I don’t think so. I would doubt that.
Question: In fact you have already said to us that if you had been unhappy about your capacity to visualise the fallopian tube because of adhesions, you would have gone to a laparotomy?
Answer: I would have gone to a laparotomy, yes.
Question: So I now return to my question, Doctor, if you had removed or dissected away the adhesions sufficiently to visualise the fallopian tube, how could you apply the clip to something other than the fallopian tube if you had carefully followed the procedure which you have described to us?
Answer: I can’t answer that one because I don’t know, but I assume that I mistook a roll of tissue which was adjacent to the tube as the tube in this circumstance. That is all I can say. I have no idea…
Question: But what I am putting to you is that that couldn’t happen if you carefully followed the procedure which you have described of identifying the fallopian tube, applying the clip to it and then confirming by again identifying the location of the clip that it was on the fallopian tube?
Answer: Yes. Clearly I misidentified the fallopian tube by the sound of things. That is all I can say.
Question: Doctor, I must put it to you that that is not an acceptable result for a tubal ligation carried out by a consultant gynaecologist and obstetrician?
Answer: Well, it is an unfortunate result but I would disclaim the fact I was negligent. I was never negligent in my approach”.
The question which I must now address is whether this misidentification of a piece of tissue for a fallopian tube, resulting in it rather than the tube being clipped, constitutes negligence.
Expert Witnesses
Although Professor Colm O’Herlihy was listed as an expert witness to be called on behalf of the defendant, he was not in fact called to give evidence.
Two experts were called by the plaintiff. One was Dr. Peter Boylan who carried out the second sterilisation in December 2002. The other was Dr. Peter McKenna.
Dr. Peter Boylan
Dr. Boylan qualified in medicine in 1974. He trained in Dublin and London and then worked in the United States. From 1991 to 1998 he was Master of The National Maternity Hospital and is at present a consultant obstetrician/gynaecologist at that hospital.
The plaintiff was referred to him by her general practitioner with a request for consideration for tubal ligation. He saw her on 23rd May, 2002 and recorded her earlier medical history. That included the fact that she had the tubal ligation the subject of this action but subsequently bore two children in 2000 and 2001. He carried out the second tubal ligation in December, 2002.
In the course of carrying out the procedure he had to dissect away adhesions at the plaintiff’s left fallopian tube. Having done so, he was able to see that the clip present was not on the plaintiff’s left tube. He took the view that the probability was that the clip had not been placed on the left tube at the first operation. The clip was clearly on the right tube but not on the left. He said as follows:
“Question: In relation to the first procedure then, can you comment on the failure of that operation?
Answer: Well, I think probably the clip was not put on the left tube. It was thought to be on the left tube but I think that it was an error of thought, if you like, or a mistaken impression because it wasn’t on the tube and the clip was clearly on the right hand side. The procedure was done by a very experienced and very skilled surgeon who, clearly, formed the impression that the clip had been put in the right place, but I don’t think it had.
Question: But is it possible to be sure to check the route of the fallopian tube in order to identify… (interjection)?
Answer: Yes, I mean, there are anatomical reference points which make it clear that you are putting the clip on the tube. When we are teaching juniors, for example, about how to do this procedure, we show them how you identify the tube and differentiate it from another tube which is very close to the fallopian tube, which is the one you are trying to block, which actually looks quite similar and it is one of the common errors that a more junior person would make with a clear view.
Question: But in relation to a person with experience and holding the status of a Consultant, such a person using reasonable care, would you expect them to be able to identify correctly the appropriate tube to clip?
Answer: You would yeah.
Question: Does it follow that a failure to make that identification falls below the reasonable standard of care for such a person?
Answer: Well, I think it is a mistake. Obviously, the clip was put in the wrong place under the impression that it was put in the correct place, but that was incorrect. You know, I don’t know whether it is for me to say whether or not it falls below the standard of care, but you would expect the person doing it to take pretty good precautions to ensure it was in the correct place, yes.
Question: Well would such a person have been taught and had explained to them and perhaps even a person of that seniority taught others to take care which would avoid a mistake of this kind?
Answer: Yes, that’s a fair comment”.
In cross-examination Dr. Boylan accepted that there is a recognised
failure rate with tubal ligation. The failure rate is higher when an open procedure is used. This is because most of such procedures are done at the time of a caesarean section and the higher failure rate is attributable to the increased blood supply to the tubes at the time. He identified the commonest reason for failure as the clip being placed other than on the fallopian tube. However he went on to say that a doctor cannot put a clip on something which is not a fallopian tube and claim or believe that he had done a successful tubal ligation. He pointed out that most of the failures occur when the operation is carried out by more junior people because they mistakenly put the clips on the round ligament which looks very like a fallopian tube. He went on to say:
“In cases like this where there are adhesions and where it is done by a very experienced clinician, then you would expect that extra efforts would be made, because of the adhesions, to make sure that the tube was, in fact, in the right place. But I certainly accept that the clinician may have believed that the clip was in the right place, or else he wouldn’t have finished the surgery”.
Dr. Peter McKenna
Dr. McKenna qualified as a doctor in 1974. He is a consultant obstetrician in the Rotunda and Mater Hospitals. Until 2001 he was the Master of the Rotunda. He was never involved in treating the plaintiff. For the purpose of giving evidence he had access to all of the relevant hospital records concerning the plaintiff and the video recording made by Dr. Boylan at the time of the second tubal ligation.
Dr. McKenna identified three reasons why a woman can have a baby after a tubal ligation. The first is that she was pregnant at the time of the procedure (a question which I will have to consider later in this judgment). The second is that the clip was not put in the right place, in which case the woman was never sterilised at all. The third is that the clip was in fact put on the right place but through the passage of time it eroded in which case there was a brief period where the egg made contact with the sperm. This third reason is not due to any failure on the part of the operator. It is a failure intrinsic to the technique.
He said:
“My understanding would be that if the patient is pregnant at the time of the procedure, that is her affair. If the technique fails because the clip erodes through, having been put on the right place, well it does happen and nobody is to blame for that. But if the clip is put on the incorrect place and the patient has never been sterilised and the operation was not done correctly that is a different matter”.
Later he said:
“One would have expected a Consultant Gynaecologist to put the clips on the correct place. If not, to have recognised that and to have expressed their concern to the patient subsequently”.
“Question: Are there anatomical points which enable the correct tube to be located for the purpose of locating the clip in the correct place?
Answer: Yes, there are, it is not that difficult”.
In cross-examination he accepted that it appeared that Dr. Murray believed that he had in fact placed the clip in the right place and that his procedure was successful. He was then asked (and answered) a question which is really one for the court. It was as follows:
“Question: But it does not necessarily imply that he (Dr. Murray) was in breach of his duty of care I suggest?
Answer: That is not necessarily for me to say, that is a matter for the legal system. But I would always have approached it that if the woman is pregnant at the time of the surgery, that is her look out. If you put the clip on the right place and it wears through, nobody is to blame. But if you put the clip on the wrong place and there are no extenuating circumstances, the operator has got to face the music for that”.
The Legal Test
The appropriate legal test by which Dr. Murray’s conduct of the tubal ligation procedure has to be judged is that prescribed by the Supreme Court in Dunne v. National Maternity Hospital [1989] I.R. 91. In that case Finlay C.J. summarised six principles which he distilled from a consideration of a series of earlier cases. The first principle is the relevant one for this case. It reads as follows:
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care”.
That principle has to be understood and applied in the context of observations made by the same judge at page 110 of the report where he said:
“In order fully to understand these principles and their application to any particular set of facts, it is, I believe, helpful to set out certain broad parameters which would appear to underline their establishment. The development of medical science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent with the common good that doctors should be obliged to carry out their professional duties under frequent threat of unsustainable legal claims. The complete dependence of patients on the skill and care of their medical attendants and the gravity from their point of view of a failure in such care, makes it undesirable and unjustifiable to accept as a matter of law a lax or permissive standard of care for the purpose of assessing what is and is not medical negligence. In developing the legal principles outlined and in applying them to the facts of each individual case, the courts must constantly seek to give equal regard to both of these considerations”.
Conclusions on tubal ligation
I have set out in some detail the evidence given by Drs. Murray, Boylan and McKenna. There is no dispute but that Dr. Murray failed to apply the clip to the plaintiff’s left fallopian tube. He was a consultant of very considerable experience when he carried out the operation. The thrust of the evidence from the two experts leads me to the conclusion that that failure on the part of Dr. Murray was one which no medical practitioner of equal specialist status and skill would have been guilty of if acting with ordinary care. To put it in the words of Dr. McKenna:
“If you put the clip on the wrong place and there are no extenuating circumstances, the operator has got to face the music for that”.
The presence of adhesions in the present case did not in my view constitute an extenuating circumstance such as would excuse what occurred. There was a breach of the duty of care owed to the plaintiff.
The plaintiff’s consent
Prior to the operation being carried the plaintiff executed a consent which read as follows:
“Sterilisation
Consent by Patient
I, Bridget Byrne hereby consent to undergo the operation of sterilisation the nature and purpose of which has been explained to me by Dr./Mr. Murray.
I have been told that the intention of the operation is to render me sterile and incapable of further parenthood. I understand that there is a possibility that I may not become or remain sterile.
I also consent to the administration of a general, local or other anaesthetic.
No assurance has been given to me that the operation will be performed by any particular surgeon”.
The plaintiff signed that form as did Dr. Murray who confirmed on it that he had explained to the patient the nature and purpose of the operation.
All three specialists who gave evidence accepted that tubal ligation is not always successful and has a recognised failure rate. The form of consent executed by the plaintiff recognises that the operation may not be successful. For example, even if the clips are placed correctly they may wear through as described by Dr. McKenna in evidence. In such circumstances no liability could attach to the doctor who performed the ultimately unsuccessful sterilisation.
The defendant contends in his written submissions that by executing this document the plaintiff “consented to that risk of failure”, thus relieving Dr. Murray of any liability. I cannot accept such a proposition.
First, the document in its terms is a consent to the operation being carried out and the administration of an anaesthetic. It is not a consent to the carrying out of a failure; still less is it a consent to the carrying out of the operation in a negligent fashion. It merely records the plaintiff’s understanding that there is a possibility of failure. It might be possible to draft a form of consent which would exclude liability on the part of a doctor for negligent treatment but there is no attempt to do so here. In my view the consent executed by the plaintiff cannot be regarded as one which exonerates Dr. Murray in respect of his failure to effectively clip both fallopian tubes.
Events after the sterilisation
The plaintiff’s sterilisation on the 16th December, 1999 was dealt with as a day case. She arrived at 7.30 in the morning, had the procedure carried out and was discharged on the afternoon of that day. She was not asked as to whether she might be pregnant at the time of the operation, nor was she required to have a pregnancy test. Her last menstrual period was recorded in the hospital record as being the 1st December, 1999. She was not asked to return to the hospital after the operation.
Apart from some discomfort she recovered well from the procedure.
In February 2000, she began to suffer from abdominal pains. She consulted Dr. Dunne. He thought she was suffering from adhesions left over from the ectopic pregnancy and that the sterilisation had irritated them.
On the 30th March, 2000 she suffered extreme abdominal pain as a result of which she went to the Accident and Emergency Department of Naas Hospital. At the hospital a routine urine sample was taken. A short time later a doctor came and asked the plaintiff how old her baby was. She told the doctor that she was not pregnant and that he must have the wrong chart. However he confirmed that she was three months pregnant. She was detained in hospital for a few days and then allowed home. Following discharge from Naas Hospital she consulted her general practitioner who transferred her to the Coombe for attention.
June 2000
The plaintiff was seen at an ante natal visit on the 1st June, 2000. Her last menstrual period was recorded in the hospital notes as having taken place on the 2nd January, 2000. A scan was carried out, which suggested that she was twenty three weeks pregnant, rather than the twenty one which was expected by reference to her last menstrual period. This discrepancy between the two dates is an issue which figured during the plaintiff’s subsequent hospitalisation and indeed during the trial. Obviously if the length of pregnancy is calculated by reference to the scan, it suggests that the plaintiff was pregnant at the time Dr. Murray carried out the sterilisation. If, on the other hand, it is calculated by reference to the plaintiff’s last menstrual period, the pregnancy occurred subsequent to the tubal ligation.
The plaintiff alleged that at the time when this scan was done somebody said to her that she might have been pregnant before she had the sterilisation. She alleged that the girl who had carried out the scan said that “the clips were on the tubes and they were secure”. It is remarkable that the plaintiff, who had such poor recollection of other events, could remember this. I am not satisfied that this event occurred. All the evidence is to the effect that such an observation could not be made by reference to the scan. I think it likely that there was mention of the possibility of the plaintiff being pregnant at the time of the sterilisation. The plaintiff got the impression from that discussion that she was pregnant at the time of the sterilisation.
The plaintiff was not detained in hospital in June and returned home.
The plaintiff returned to the hospital complaining of abdominal pain on the 6th July, 2000.
The July visit
This was the plaintiff’s second ante natal visit to the hospital. The plaintiff was complaining of abdominal pain and on this occasion was seen by a consultant, Mr. Tom D’Arcy.
Mr. D’Arcy
Mr. D’Arcy is a Fellow of the Royal College of Surgeons in Ireland and a member of the Royal College of Obstetricians and Gynaecologists. He qualified in medicine in 1984 and has been a consultant at both the Coombe Hospital and St. James’s Hospital in Dublin since 2000.
Mr D’Arcy struck me as a very competent and thorough doctor with a great concern for the plaintiff.
He explained in great detail the examinations and tests which he carried out on the plaintiff when she came under his care on the 6th July, 2000. His first concern was that, having regard to her complaints and her previous obstetrical history, she might be in pre-term labour. Having carried out these examinations and tests he concluded that she was not. His second concern was to try and establish her dates and to “make sense of the disparity between those that were determined by her last menstrual period or her presumed last menstrual period on the 2nd January, 2000 and those that had been suggested on the basis of her booking scan”. It is not necessary for the purpose of this judgment to set out in detail the various tests and calculations which he did and indeed the thinking process behind them. He certainly explored the question meticulously and came to the conclusion that it was more than likely that the plaintiff had conceived after her sterilisation. He was quite unequivocal about this in his evidence and in particular when asked the following question:
“Q. Going back now to the month of July, 6th July, you are saying on that date you had come to the strong conclusion that the tubal ligation had failed. Inst that what the sum total of your evidence before lunch was?
A. Yes.”
I am quite satisfied that Mr. D’Arcy thoroughly and comprehensively carried out all necessary tests and examinations on the plaintiff so as to ascertain the true position concerning the length of her pregnancy. He concluded that she had become pregnant after the sterilisation. In my view he was correct in so concluding. The sterilisation had failed.
The question arises as to whether the plaintiff was told this. An issue also arises as to whether that information was communicated to other medical or nursing practitioners who would be involved in the subsequent care and management of the plaintiff.
Was the Plaintiff informed?
The plaintiff had no recollection of ever being informed during the course of her pregnancy with her sixth child Danielle that her tubal litigation had failed. She ought to have been so informed. That is the clear and uncontroverted view of Doctors Boylan and McKenna which I accept. Not only ought she to have been told, but other steps ought to have been taken by way of advice to her and procedures followed which were detailed in the evidence of those two doctors.
If the plaintiff had been so informed, I think it likely that she would have behaved in a manner other than she did following the birth of Danielle.
None of the doctors called by the defendant had any recollection of a conversation with the plaintiff during the course of her pregnancy in which she was told that her sterilisation had failed. This is understandable given their work load and the lapse of time. However, Dr. Boylan was clear that if an appropriate conversation had taken place with the plaintiff on this topic it would have been noted in her chart. His view in that regard was shared by Dr. Murray himself who said that he would expect a doctor to generally write in the chart that a patient had been informed of a failed ligation and given advice. No such note appears in the plaintiff’s medical records.
Mr. D’Arcy, quite understandably, had no recollection of having such a conversation with the plaintiff. In his evidence he said that he:
“certainly would not have given her to understand that her sterilisation had been successful, most certainly not, because there were grounds for considering otherwise having established the difference in her last menstrual period and having established exactly when she was sterilised and having considered also the fact that she had been on the oral contraceptive pill up to one week before she was actually sterilised”.
Later in his testimony he said that he could not honestly say that he used the exact words that the plaintiff’s “tubal ligation had failed”. In re-examination he said that if he couldn’t say that he used those exact words he believed that he told her that her tubal ligation had failed.
As I have already observed nowhere is it noted that such information was given to the plaintiff. In answer to questions which I put to Mr. D’Arcy he said that he does not always write down what he has said directly to a patient. However, he said if there were some very specific facts he would document them. If he felt the need to actually document a very specific meeting with a patient then he would be inclined to dictate a letter as to that meeting which he would then have placed within the notes and a copy sent to the patient’s general practitioner or to the patient as well. Whilst he accepted that a failed tubal ligation was a rare occurrence he did not regard it as one of the specific instances where he would note what he might have said to the patient.
I am satisfied on the evidence that Mr. D’Arcy did not inform the plaintiff in terms clear to her that her tubal ligation had failed. Whatever may have been said it did not make the position clear to her. Given the comparative rarity of a failed tubal ligation and the consequences of such for the plaintiff I think it probable that if he had told the plaintiff of this he would have either noted the matter in the chart or have prepared a letter for inclusion on the chart with a copy being sent to the plaintiff’s general practitioner. Mr. D’Arcy, very reasonably, was more concerned at the time with the plaintiff’s pain and the condition with which she was presenting together with her history on previous pregnancies where she had required a cervical suture than with this issue. He did not deal with her again.
I also think it likely that, if she had been told, not only would the plaintiff’s general practitioner have been informed but as a matter of professional courtesy, Dr. Murray would also have been informed. Neither of these things happened.
My findings in this regard are fortified by the actual notations which were made in the plaintiff’s chart.
The Chart
Mr. D’Arcy is the only consultant identified in evidence as having made an entry on the plaintiff’s chart during her pregnancy with Danielle.
Mr. D’Arcy dealt with the patient on the 6th July, 2000. He noted the discrepancy between her dates by reference to the scan results and her last menstrual period as related by her. Using distinctive green ink he wrote “measurements might suggest that she was pregnant just before TL given variation”. He made other notations in green which are not of relevance here. He told me that this entry demonstrated a state in the process of his thinking and that when he ascertained that the tubal ligation had taken place on the 16th December, 1999 and that the plaintiff had been on the oral contraceptive pill until one week before that date he came to the conclusion that the tubal ligation more than likely had failed and that she had conceived after the sterilisation.
On the same page in the chart there are notes of what occurred on the plaintiff’s first ante-natal visit to the hospital on the 1st June, 2000. Some unidentified doctor had written the words “Lap TL December 99 – failed TL”. When Mr. D’Arcy obtained additional information from the plaintiff he inserted into this notation the figure “16” before the word “December” and he wrote under the notation “On OC pill until 1/52 before TL”. These notes were made by Mr. D’Arcy in black ink rather than his characteristic green. Although he initialled the green notation he did not initial the notation made in black. It would not have been apparent to anybody reading the chart that the added words in black ink had been written by Mr. D’Arcy.
Mr. D’Arcy considered that this notation made it clear to anybody subsequently reading the chart that the plaintiff had a failed tubal ligation. In answer to two questions put by me he said as follows:
“Question: Mr. D’Arcy am I correct in thinking that the thrust of your evidence is that another medical practitioner in the obstetrics area on looking at this note here would come away with a clear conclusion that a failed tubal ligation was the cause of the problem?
Answer: That is correct.
Question: And does it dispose in your view for once and for all the possibility of her having been pregnant at the time of the tubal ligation?
Answer: Yes it does”.
Whilst I do not doubt the sincerity of Mr. D’Arcy’s views in this regard I cannot accept on the evidence that his notes did in fact achieve this desired result.
According to the evidence of Dr. McKenna if there was doubt as to whether the woman was pregnant before or after the tubal ligation a senior clinician ought to have noted in the chart that she needed to have her tubal patency checked at eight weeks. He was unequivocal in his view in that regard. Such a note would infer there was genuine doubt as to the efficacy of the tubal ligation. He could not discern any such entry on the chart. There is none.
The evidence of Mr. D’Arcy is that he had come to the clear conclusion that the tubal ligation had failed but there is no unequivocal note to that effect on the chart.
That Mr. D’Arcy’s entries on the chart did not convey to other medical and nursing staff in the hospital his clear view as to the failure of the sterilisation can be gleaned by reference to notations which appear subsequent to those made by him on the 6th July, 2000.
On the same date at 18.50 hours a mid-wife recorded: “Had TL in December 99. Had period type bleed in January, 2000 scan dates today suggests she was pregnant before the TL”. Next day, the 7th July, 2000 Dr. Sarma a Senior House Officer in Obstetrics wrote “T/L December 99 pregnant prior”. If matters were as clear as Mr. D’Arcy believed it is unlikely that these notes would have made.
In my view the criticism made by Dr. McKenna that the plaintiff’s chart did not contain an appropriate unequivocal statement as to Mr. D’Arcy’s conclusions is well founded.
Events post Danielle’s birth
Danielle was born on the 11th September, 2000.
At the time of the plaintiff’s discharge from hospital after that event she was seen by Dr. Caoimhe Lynch.
Dr. Lynch qualified in medicine in 1999 and was a Senior House Officer in the Coombe having commenced work there in July, 2000. She has since obtained her Membership of the Royal College of Obstetricians and Gynaecologists in London and is also a Member of the Royal College of Physicians in Ireland. At present she is a clinical research fellow and specialist registrar in obstetrics and gynaecology attached to the Coombe Hospital.
Dr. Lynch cannot be criticised for the fact that she had no recollection of the conversation which she had with the plaintiff when discharging her from hospital on the 4th September, 2000.
Dr. Lynch made good notes in the plaintiff’s chart pertaining to the plaintiff’s discharge from hospital. It is quite clear that Dr. Lynch was very thorough in satisfying herself that the patient was fit for discharge on the day in question. That can be gleaned not merely from her evidence but also from the notes which she made on that occasion.
The note which is relevant for the purpose of this case relates to the plan which Dr. Lynch created for the plaintiff. It read:
“- To see physiotherapist today prior to discharge
– post natal OPD 6/52
(to discuss fertility – PT pregnant – post TL”
Dr. Lynch required the plaintiff to come back to hospital rather than have a normal six week visit with her general practitioner. This was because as she put it she was
“Highlighting the fact that she needed to come back to the hospital and the reason – I put it in brackets – was to discuss her fertility because of the fact that she had become pregnant post tubal ligation”.
Dr. Lynch told me that she did not assume that the plaintiff was pregnant at the time of her sterilisation. When asked what was her view as to when the plaintiff became pregnant she said:
“Well, I would feel that there was a question that she had become pregnant following a tubal ligation. It was felt looking at the notes and establishing the dates that she was probably pregnant following the tubal ligation but that this had to be confirmed and hence the six week appointment to come back to the hospital”.
Later in her evidence Dr. Lynch accepted that her note did not indicate that the plaintiff became pregnant following a tubal ligation because she was not in a position to make such a note. That is quite understandable given her juniority. No clear note to such effect was on the chart adding fortification for my finding that the entries made on the chart by Mr. D’Arcy did not clearly record his conclusion that the plaintiff had become pregnant following the tubal ligation.
Dr. Lynch was a very junior doctor and was aware of the delicacy of her position and how inappropriate it would have been for her at this juncture to reach a conclusion that the tubal ligation had failed. She quite properly recorded that the plaintiff had become pregnant post tubal ligation.
Dr. Lynch was clear that she would not simply have told the plaintiff to come back in six weeks time. Rather she would have explained to her why she wanted her to do so. That was made evident in a number of different places in her evidence. She said:
“I would have explained why I wanted her to come back…. So one can assume that in the context of saying to the patient that she needed to come back to the clinic in six weeks, that you need to qualify the statement as to why you want her to come back in six weeks. Otherwise, they won’t come back at all”.
Later in her evidence Dr. Lynch told me:
“But I would say that it was appropriate that she was to come back for her post natal appointment and in highlighting the fact to her that I had questioned whether her tubal ligation was a success”.
However it is clear from the next answer from Dr. Lynch that she did not make any comment on whether the plaintiff’s tubal ligation was successful.
The plaintiff was discharged. No contraceptive was prescribed. Dr. Lynch accepts that she did not note informing the plaintiff that she should assume that she was fertile and would become pregnant unless she took contraceptive precautions.
Dr. Lynch struck me as a very competent and conscientious doctor who went about her duties in discharging the plaintiff is a thorough manner. I am satisfied that she carried out a full and detailed consideration of the plaintiff’s position and her records and had a discussion with her. Dr. Lynch was clearly concerned at the fact that the plaintiff had become pregnant subsequent to a tubal ligation. But there was nothing on the chart by way of a definitive note to say the ligation had failed. It was not up to Dr. Lynch to make such a finding. Indeed she was in a very difficult position because to have expressed the view that the sterilisation was a failure, given her level of juniority, could have created many difficulties given that she would be directly criticising an operation carried out by a very senior consultant in the hospital.
I am satisfied that she told the plaintiff to return to the hospital for a check-up six weeks subsequent to the discharge and that she made it clear to the plaintiff that there was uncertainty about her fertility and that it needed to be checked. She was, understandably, unable to say to the plaintiff that the sterilisation had failed.
Accordingly the plaintiff was discharged without being told then or at any stage during her stay in the Coombe in clear and unequivocal terms that her tubal ligation had failed.
She was undoubtedly told to return for an out-patients appointment six weeks after discharge and she was advised to do so because of uncertainty about her fertility.
I should record that Dr. Lynch was not the only member of the hospital personnel to see the plaintiff prior to her discharge. She was also seen by Ms. Elizabeth Byrne. She is a registered nurse and midwife and was employed in the Family Planning Department of the Coombe Hospital as a clinical midwife manager.
The hospital records demonstrate that on the 3rd September, 2000 the plaintiff was offered a leaflet that contained advice on all family planning methods that were available. That was given to her by the nursing staff on the ward. In addition however the chart notes that the ward staff requested Ms. Byrne to call on the patient for the purpose of giving family planning advice.
Ms. Byrne saw the plaintiff on the 4th September. The purpose of the visit would be to make the plaintiff aware of her fertility and to offer advice on what options were available.
Ms. Byrne had no recollection of any discussion with the plaintiff. Whilst she would have had access to the plaintiff’s chart it was not her invariable practice to look at it and she was unable to remember whether she did so in the case of the plaintiff. Little assistance can be gleaned from Ms. Byrne’s evidence. That is not a criticism of her as it would be quite impossible for her to have a recollection of having dealt with the plaintiff given that she would see about 2000 patients in any year.
Conclusions on information given to plaintiff
At no stage during her pregnancy or after delivery was the plaintiff clearly informed by any doctor, nurse or other personnel employed by the hospital that her tubal ligation had failed. The fact of the failure was not recorded in the plaintiff’s chart in clear terms. I think the criticism made by Dr. McKenna where he said the following is well founded.
“This is a case of the “emperor’s clothes” here. Everybody was not facing up to the obvious that this woman had had a failed tubal ligation and that plan B should come into play and that her tubes should be checked or she should be offered sterilisation again. Everybody was hedging around the main issue that there had been a problem”.
I am of the view that the plaintiff was aware that questions had been raised as to whether she was pregnant at the time of the sterilisation or not. She was also advised at the time of her discharge to return for an out patient appointment six weeks thereafter. The reason for that visit was explained to her by Dr. Lynch. Dr. Lynch was not in a position to say to her that the tubal ligation had failed but certainly made it clear that there was a question mark over it.
Dr. Boylan was of opinion that the failed sterilisation should have been brought to the plaintiffs notice in an unequivocal fashion. She should have been left in no doubt about it. In my view he is correct in that. That obligation was not discharged and there was a breach of the duty of care owed to the plaintiff in that regard.
Contributory negligence
The plaintiff did not attend the hospital for her six week check-up as advised. Had she done so I think it likely that matters would have been investigated further and a further pregnancy might well have been avoided. To have ignored the advice given to her by Dr. Lynch to attend for such an appointment, given what had occurred, was imprudent and in my view was also negligent. However no case of contributory negligence was pleaded against the plaintiff nor was it urged on me that her failure to take the advice offered to her on her discharge from the hospital amounted to such. Accordingly no further consideration need be given to this question.
Dr. Dunne
While the plaintiff was pregnant with Danielle she was also attending Dr. Dunne for antenatal care. He told the plaintiff to enquire in the Coombe as to the success or otherwise of her tubal ligation. He was aware of the discrepancy between the scan dates and the date of her last period. He was told that by the plaintiff. The plaintiff also told him that she was pregnant before she had the sterilisation. That information can only have been gleaned by the plaintiff from sources within the hospital. It again underscores the failure to tell her in unequivocal terms that her pregnancy arose subsequent to the sterilisation.
Dr. Dunne did not obtain any letter from the Coombe on the topic and accepted the plaintiff’s account that she was pregnant prior to the sterilisation being carried out.
Following her birth, Danielle had some health problems which involved her being brought back to hospital on occasion. Dr. Dunne was involved in at least one of those episodes which occurred when she was a few weeks old. That brought him into contact with the plaintiff. On the basis of what he was told by the plaintiff and the lack of any communication from the Coombe he was satisfied that she was infertile due to the sterilisation. Consequently he offered her no advice on any form of contraception.
The plaintiff came to him in March, 2001 and asked him to conduct a pregnancy test upon her. He did so. It was positive and her estimated date of delivery was the 5th October, 2001. In fact her seventh child Damien was born prematurely on the 13th August, 2001.
Dr. Dunne was now quite certain that the tubal ligation had failed and following the birth of Damien he advised the plaintiff to have a coil inserted. This was done in December, 2001 and the second tubal ligation was performed by Dr. Boylan on the 5th December, 2002.
Had Dr. Dunne been told of the correct position by the hospital I believe he would have advised the plaintiff on appropriate contraceptive measures. In fact no form of family planning was practiced by the plaintiff following the birth of Danielle and within a short time her pregnancy with Damien occurred.
Vicarious liability
There was a breach of the duty of care owed to the plaintiff by Dr. Murray in carrying out the tubal ligation. A second breach occurred by the hospital personnel failing to clearly tell the plaintiff of the failure of the sterilisation and to offer appropriate treatment to rectify that position.
Is the defendant hospital vicariously liable for any damages which arise as a result of the first breach? The hospital contends that it is not. Dr. Murray’s contract
The defendant referred to many aspects of Dr. Murray’s contract in arguing against vicarious liability. In the result they are not all that relevant on the topic since the defendant contends that ultimately the test to be applied is one of control. For completeness sake I deal hereunder with the terms of the contract.
Dr. Murray entered into a contract for appointment as a consultant at the Coombe Hospital on the 30th March, 1998. The contract is in the form generally referred to as the “consultant’s common contract”.
Under the contract Dr. Murray, as a category one consultant, undertook to work an aggregate of what are described as 33 ‘notional hours’ at the hospital per week. Under clause 6 of the contract he was responsible for producing an agreed schedule specifying how he intended to discharge his full contractual commitment over a period from Monday to Friday. He was obliged to furnish to the hospital such information on the discharge of his scheduled sessions as was necessary and reasonable to establish that he was fulfilling his contractual agreement.
Clause 8.3 of the contract permitted Dr. Murray to conduct private practice in accordance with the terms of a memorandum of agreement appended to the contract.
Clause 5 of the contract dealt with the nature of consultant appointments. It read as follows:
“5.1. For the purpose of this contract, a consultant is defined in the following general terms:
A consultant is a registered medical practitioner in hospital practice who, by reason of his training, skill and experience in a designated speciality, is consulted by other registered medical practitioners and undertakes full clinical responsibility for patients in his care, or that aspect of care on which he has been consulted, without supervision in professional matters by any other person. He will be a person of considerable professional capacity and personal integrity.
5.2. Being a consultant involves continuing responsibility for investigation and for the treatment of patients without supervision in professional matters by any other person. This continuing responsibility for investigation and for treatment of patients is a personal matter between each consultant and each patient in his care and it extends for as long as the patient remains in the consultant’s care. The consultant may discharge this responsibility directly in a personal relationship with his patient, or, in the exercise of his clinical judgment, he may delegate aspects of the patient’s care to other appropriate staff, or he may exercise responsibility concurrently with another doctor or doctors. Notwithstanding this however, the unique position of the consultant in the hospital requires that he carries the continuing responsibility for his patients so long as they remain in his care.
5.3. The employing authority and the consultant acknowledge that the provision of services to patients is a joint task which sets obligations on both parties.” (My emphasis)
The contract is a curious document in many ways and has all the hallmarks of having been drafted by a committee. For example under clause 2 of the agreement it is provided that it is subject to the terms and conditions specified in the contract, its appendices and in the memorandum of agreement appended to it. In that memorandum of agreement one finds reproduced verbatim in clause 2 the definition of consultant contained at clauses 5.1 and 5.2 of the contract itself. There is however an addition in clause 2 of the memorandum in the following terms:
“The agreed objective of the parties to this memorandum is the maintenance of the highest standards in the public hospital system. To this end, the remuneration, general conditions of employment and facilities are intended to attract and retain the major part of the practices of consultants of the highest calibre on the sites of public hospitals.”
Going back to the contract itself, clause 6.1 reads as follows:
“The Coombe Lying-in Hospital recognises your right to the exercise of your independent judgment in clinical and ethical matters (subject to the provisions of clause 8.11). Consultants in the Coombe Lying-in Hospital carry full clinical responsibility for patients under their care within the medical policy as determined from time to time by the Master and approved by the Board of the hospital.”
Clause 9.4 of the contract required Dr. Murray to keep himself indemnified against claims arising from malpractice and negligence in relation to his appointment. The hospital agreed to reimburse him to the extent of 90% in respect of the cost of such indemnity. Clause 2.10 of the memorandum of agreement contains a similar obligation.
The memorandum of agreement also repetitiously stipulates the role of the consultant in terms similar to those contained in clause 5 of the agreement. There are however some additional provisions most particularly contained at paras. 6.4.2. and 6.4.3. of the memorandum of agreement. They read as follows:
“6.4.2. Insofar as the work of the consultant is created by the demand placed on the hospital for the provision of specialist hospital services the consultant can be seen as providing a service to patients on behalf of the hospital (my emphasis). The work arising from him from the hospitals accident and emergency service is an example of the service provided by a consultant to patients on behalf of the hospitals. The work arising for him from general practitioner referrals or from secondary or tertiary referrals to the hospital where the hospital has a defined responsibility for providing such a service, are other examples of services the consultant is asked to provide. (My emphasis). It should be noted that regardless of the mode of referral, once a patient and doctor come into contact, then the relationship is a personal one between the patient and the doctor.
6.4.3. It can be seen from the description of the unique characteristics of consultant work that not alone does he provide some overall service to patients on behalf of the hospital to a population, he may also diagnose and treat patients directly referred to him personally (My emphasis). He may also wish, or be required, to undertake research and developmental work; to participate, as of right, in the selection process for Non Consultant Hospital Doctors; engage in teaching and education; conduct private practice and engage in systematic evaluation or audit of medical work with colleagues.”
The Defendants Submissions and Conclusions on Vicarious Liability.
The defendant submits that the hospital is not vicariously liable for Dr. Murray’s breach of duty by reference to four propositions which are contained in his written submissions. They are
“1. The correct legal criterion by reference to which a determination is made as to whether the hospital is vicariously liable for the consultant is the extent of the control exercised by the hospital over the actions of the consultant.
2. This is so whether or not the consultant was an employee of the hospital under a contract of service or an independent contractor under a contract for services.
3. In any event, the consultant was not in fact an “employee” of the hospital in that he was engaged by the hospital as a consultant obstetrician under the consultants common contract which, as a matter of construction, is a contract for services.
4. The hospital was not “in control” of the actions of the consultant in carrying out the plaintiff’s tubal ligation procedure”.
The defendant asserts that the issue of whether a person is liable in law for the wrongdoing of another is determined by reference to the element of control that is exercised regardless of the nature of the contract which governs those persons.
The defendant refers to the decision of the Supreme Court in Moynihan v. Moynihan [1975] 1 I.R. 192 and the High Court in Holohan v. Minister for Defence and Others (Unreported, Kinlen J. 30th July, 1998). In that case that judge stated that “the basis in modern jurisprudence for vicarious liability is control” and cited with approval an observation contained in the 3rd Edition of McMahon and Binchy on the Law of Torts which said of Moynihan’s case that “the decision is important because it clearly indicates that the control concept is used, not as a justification for vicarious liability, but rather as a test to determine the person for whose actions liability will be imposed on the defendant”. In the written submissions the defendant refers to the current edition of McMahon and Binchy and quotes the following section (paragraph 43.18) where this statement appears “since the Supreme Court decision in Moynihan v. Moynihan however the degree of control which the principal exercises seems to be emerging as the single most important, if not the crucial factor in establishing liability, in Ireland at least”.
The defendants did not quote the following passage which occurs on the next page of that issue of McMahon and Binchy. There the authors say of the control test as follows. “The control test, however, while useful in many cases does not seem to be determinative in all circumstances, for example, in what has become known as “the hospital cases”. Is the health authority or the hospital authority vicariousably liable for the negligence of resident surgeons, anaesthetists, nurses, etc? In these cases there is no question of the employer controlling the way in which the surgeon operates, and if the control test is doggedly adhered to the plaintiff may be denied access to “the deep-pocket”. After much uncertainty the rule seems to be well accepted that medical staff in the fulltime service of hospitals are employees for the purposes of vicarious liability. That this has been accepted in Ireland can be seen from such cases as O’Donovan v. Cork County Council. Here in an action against the defendant council for the alleged negligence of a surgeon and an anaesthetist the defendant council, while denying negligence, did not even contest the proposition that it would be vicariously liable if negligence were proved on the part of the surgeon or the anaesthetist. The remnants of the ancien regime have not disappeared completely, however, since Irish health services still retain distinctions between public and private patients, which impact on the issue of vicarious liability. In Bolton v. Blackrock Clinic Limited, the plaintiff unsuccessfully sued a cardiothoracic surgeon and a consultant thoracic physician for negligence in her treatment. She also sued the hospital where these specialists worked, on the basis of direct and vicarious liability. Having dismissed the plaintiff’s claim against the specialists, Geogehgan J. observed “that being so, there cannot be any question of vicarious liability of the hospital for medical negligence. Indeed at any rate the plaintiff was a private patient of the doctors in a private hospital, the question of vicarious liability may not arise”.
In my view the authors of McMahon and Binchy are correct in identifying that the control test is not of universal application and that hospital cases are to a considerable extent sui generis.
This view is not peculiar to Ireland. Later in the defendant’s written submissions there is a quotation from the 19th Edition of Clerk and Lindsell on Torts in the chapter dealing with vicarious liability. The defendant quotes the following: “Visiting consultants and surgeons, on the other hand, have been said not to be the employees of the hospital authorities, but, however this may be, the development of a different approach to the liability of hospital authorities for negligence occurring in the course of the treatment of their patients has probably deprived the point of practical significance. In many of the cases the tendency has been to treat the question of the hospital authorities liability as raising issues of primary, as well as vicarious responsibility. The hospital itself, it is said, is under a duty to its patients which it does not discharge simply by delegating its performance to someone else, no matter whether the delegation be to an employee or an independent contractor. On this basis it makes no difference whether or not a visiting consultant is a servant. There is some support for this view in Wilshire v. Essex Area Health Authority where Brown Wilkinson VC stated (obiter):-
“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.
In citing the above quotation from Clerk and Lindsell the defendant failed to refer to the preceding paragraph from the same work in which the following is to be found “it was formerly thought that hospital authorities could not be liable vicariously for the negligence of a member of their medical staff, whether professionally qualified or not, if the negligence occurred in the course of an operation or treatment calling for the exercise of medical skill and knowledge. As the element of control over the method of working was lacking, according to the traditional view it followed that they could not be regarded as the employees of the hospital authority. In modern case law however, a different view has prevailed and such professionally qualified persons as radiographers, house surgeons, full time assistant medical officers and staff anaesthetists have been held to be employees of the hospital authority for the purposes of vicarious liability. Indeed it is submitted that any member of the full time staff of the hospital should be regarded as an employee of the hospital authority”.
These passages from both Irish and English textbooks appear to me to be fully justified by reference to the case law cited in them and are correct. I do not propose to add to an already lengthy judgment by citing from all of the cases cited. However a number of quotations from two of the cases in my view accurately describe the position.
In Cassidy v. Ministry of Health (1951) 2 KB 343 the Court of Appeal, in allowing the appeal, held that a hospital authority is liable for the negligence of doctors and surgeons employed by the authority under a contract of service arising in the course of the performance of their professional duties. The decision to allow the appeal was a unanimous one. However Denning LJ (as he then was) went further than the other two Lords Justices where he said (at p. 362):-
“It has been said, however, by no less an authority than Goddard LJ in Golds case (1942 2 KB 293) that the liability for doctors on the permanent staff depends, on “whether there is a contract of service and that must depend on the facts of any particular case”. I venture to take a different view. I think it depends on this: Who employs the doctor or surgeon – is it the patient or the hospital authorities? If the patient himself selects and employs the doctor or surgeon, as in Hillyer’s case, the hospital authorities are of course not liable for his negligence, because he is not employed by them. But where the doctor or surgeon, be he a consultant or not, is employed and paid, not by the patient, but by the hospital authorities, I am of opinion that the hospital authorities are liable for his negligence in treating the patient. It does not depend on whether the contract under which he was employed was a contract of service or a contract for services. That is a fine distinction which is sometimes of importance; but not in cases such as the present, where the hospital authorities are themselves under a duty to use care in treating the patient.
I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services”.
At the conclusion of his judgment Denning LJ said “turning now to the facts in this case, this is the position: the hospital authorities accepted the plaintiff as a patient for treatment, and it was their duty to treat him with reasonable care. They selected, employed, and paid all the surgeons and nurses who looked after him. He had no say in their selection at all. If those surgeons and nurses did not treat him with proper care and skill, then the hospital authorities must answer for it, for it means that they themselves did not perform their duty to him. I decline to enter into the question whether any of the surgeons were employed only under a contract for services, as distinct from a contract of service. The evidence is meagre enough in all conscience on that point. But the liability of the hospital authorities should not, and does not, depend on nice considerations of that sort. The plaintiff knew nothing of the terms on which they employed their staff; all he knew was that he was treated in the hospital by people whom the hospital authorities appointed; and the hospital authorities must be answerable for the way in which he was treated”.
Denning LJ may have been somewhat ahead of his time in expressing these views. Neither of his colleagues on the Court of Appeal went so far since they decided that the hospital authority was liable in respect of doctors who were employed under a contract of service. However the views of Denning LJ in my view are correct and are applicable in the instant case.
In Roe v. Minister of Health (1954) 2 QB 66 the Court of Appeal again had to consider the question of vicarious liability. All three judges delivered separate judgments to the same effect in that they dismissed the appeal. In his judgment Somervell LJ regarded the question of vicarious liability as being settled by reference to whether or not the doctor was part of the permanent staff of the hospital. More to the point, however, for this case is the judgment delivered by Morris LJ.
He said (at p. 90) “If a patient in 1947 entered a voluntary hospital for an operation it might be that if the operation was to be performed by a visiting surgeon the hospital would not undertake, so far as concerned the actual surgery itself, to do more than to make the necessary arrangements to secure the services of a skilled and competent surgeon. The facts and features of each particular case would require investigation. But a hospital might in any event have undertaken to provide all the necessary facilities and equipment for the operation and the obligation of nursing and also the obligation of anaesthetizing a patient for his operation. The question in the present case is whether the hospital undertook these obligations. In my judgment they did. There can be no doubt but that they undertook to nurse the plaintiffs and to provide the necessary facilities and equipment for the operations. I think they further undertook to anaesthetise the plaintiff. The arrangements made between the hospital and Dr. Pooler and Dr. Graham, together with the arrangements by which a resident anaesthetist was employed, had the result that the hospital provided a constantly available anaesthetic service to cover all types of cases.
It is true that Dr. Pooler and Dr. Graham could arrange between themselves as to when they would respectively be on duty at the hospital: and each was free to do private work. But these facts do not negative the view, to which all the circumstances point, that the hospital was assuming the obligation of anaesthetising the plaintiffs for their operations. I consider that the anaesthetists were members of the “organisation” of the hospital: they were members of the staff engaged by the hospital to do what the hospital itself was undertaking to do. The work which Dr. Graham was employed by the hospital to do was work of a highly skilled and specialised nature, but this fact does not avoid the application of the rule of respondeat superior.”
The views of the members of the Court of Appeal in these two cases, expressed as they were over 50 years ago, appear to be correct to this day and of application in the instant case.
The plaintiff was referred not to a particular surgeon but to the Coombe Hospital. She had no say in the choice of who would carry out her sterilisation. It was done by Dr. Murray. He was part of the “organisation” or permanent staff of the hospital. The performance of the operation was part of a service provided by the hospital to the plaintiff. Dr. Murray was the person in the hospital’s organisation via whom that service was provided.
In these circumstances it matters not whether Dr. Murray was employed under a contract of service or a contract for services. In my view having regard to the principles enunciated in both Cassidy and Roe’s case the hospital here is liable for any want of care on the part of Dr. Murray.
Damages for pregnancy, birth and second sterilisation
The defendant concedes that in the event of a finding of negligence the plaintiff is entitled to damages for the pain suffering and inconvenience of pregnancy and childbirth and of course for having to have the sterilisation repeated. Special damages for extra medical expenses are also conceded. These concessions are made by reference to the views expressed by the majority of the members of the House of Lords in McFarlane v. Tayside Health Board (2000) 2 AC 59.
In the light of these concessions I am not called upon to consider whether as a matter of principle it is open to the plaintiff to recover damages arising from her pregnancy and the births of Danielle and Damien.
In McFarlane’s case Lord Gill, the Lord Ordinary (as he then was) considered that pregnancy could not be equiparated with a physical injury. Even if it could, he held that it was not an injury for which damages are recoverable. The existence of a child and the mother’s happiness derived from it could not be ignored and they outweighed the pain and discomfort.
He held that damages were not recoverable as a matter of principle. That was not a view shared by the Inner House of the Court of Session or the majority in the House of Lords. Whether Lord Gill’s view is to be preferred to that of the other judges is a matter which I am not called upon to decide in the light of the concession which the defendants make as to the entitlement of the plaintiff to damages. I will assess these damages later.
The largest part of the plaintiff’s claim in these proceedings is in respect of the cost of rearing the two children born subsequent to her first sterilisation. That sum has been agreed at €27,000 to date and €354,678.00 for the future. The question to which I must now turn my attention is as to whether the plaintiff is entitled to recover such damages.
Damages for rearing Danielle and Damien
In McFarlane’s case Lord Gill disallowed the claim for damages for the costs of rearing the child that was born following the failed vasectomy of the father. He said:
“I am of the opinion that this case should be decided on the principle that the privilege of being a parent is immeasurable in money terms; that the benefits of parenthood transcend any patrimonial loss, if it may be so regarded, that the parents may incur in consequence of their child’s existence; and that therefore the pursuers in a case such as this cannot be said to be in an overall position of loss”.
In the present case the plaintiff has been at pains throughout her case to make it clear that both Danielle and Damien were welcomed into her family by both parents and their siblings. The parents have since separated but Danielle and Damien continue to be “loved, cherished and supported by both of them. Their children are a source of joy and satisfaction to them. They, no more than any other parents, do not assess their relationship with Danielle and Damien in terms of profit and loss. They do not seek compensation from the courts in respect of any of the intangible burdens in the upbringing of their children. They accept those burdens as do any parents gladly”. Given this acknowledgement of the joy and satisfaction that these two children have brought to her there is a certain incongruity in the plaintiff seeking to recover the costs of rearing them from the defendant. I think there is much to be said for the observations of Lord Gill in this regard.
Lord Gill’s decision was appealed to the Inner House. The appeal was allowed. The case then went to the House of Lords which restored the conclusion of Lord Gill. Their Lordship’s House held unanimously that a negligent doctor is not required to meet the cost of bringing up a healthy child born in circumstances such as obtain in the instant case. In reaching that conclusion the legal reasoning and the language used by the five Law Lords differed. But in essence the conclusion which was reached was that fairness and reasonableness do not require the damages payable by a negligent doctor should extend so far as to require him to pay for the cost of rearing an unintended healthy child.
That view expressed by the House of Lords is one which has found favour in the majority of the common law countries where this issue has arisen.
The speeches of their Lordships in McFarlane’s case contain a detailed analysis of all of the previous decisions in England, Wales, Scotland, the Commonwealth countries, other common law jurisdiction and a number of civil jurisdictions.
In his speech Lord Steyn traces the history of such claims in England beginning with Udale v. Bloomsbury Area Health Authority [1983] I.W.L.R. where Jupp J. rejected a claim for the cost of bringing up an unwanted child. That Judge observed that the birth of a child is “a blessing and an occasion for rejoicing”. In 1986 Peter Pain J. in Thake v. Maurice [1986] Q. B. 644 declined to follow Udale’s case and allowed such a claim. He observed that social policy which permitted sterilisation implied that it was generally recognised that the birth of a healthy child was not always a blessing. These divergent approaches were considered by the Court of Appeal in Emeh v. Kensington and Chelsea and Westminister Area Health Authority [1985] 1 Q.B. 1012. The unwanted child in Emeh’s case had been born with congenital disabilities. The defendants argued that damages should be limited to the extra costs of upbringing attributable to the disabilities. Full costs were allowed but in what was described as a ‘modest sum of £6,000’.
It is clear that the decision in Emeh’s case was one which created unease amongst judges. As is recorded by Lord Steyn that was memorably articulated in Jones v. Berkshire Area Health Authority (Unreported, 2nd July, 1986) another unwanted pregnancy case where Ognall J. said:
“I pause only to observe that, speaking purely personally, it remains a matter of surprise to me that the law acknowledges an entitlement in a mother to claim damages for the blessing of a healthy child. Certain it is that those who are afflicted with a handicapped child or have longed desperately to have a child at all and are denied that good fortune, would regard an award for this sort of contingency with a measure of astonishment. But there it is: that is the law”.
Since the decision of the House of Lords in McFarlane’s case it is no longer the law in England and Wales. Furthermore the decision in McFarlane was subsequently considered by a differently constituted judicial committee of the House of Lords in Rees v. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and was not disturbed.
That the view of the House of Lords in McFarlane is not out of kilter with other jurisdictions can be ascertained by reference to the following passage from the speech of Lord Steyn:
“In the United States the overwhelming majority of state courts do not allow recovery of the costs of bringing up a healthy child: see the review in Johnson v. University Hospital of Cleveland, 540 N.E. 2d 1370. In Canada the trend is against such claims: see Kealey v. Berezowski [1996] 136 D.L.R. (4th) 708 which contains a review. By a majority the New South Wales Court of Appeal in CES v. Superclinics (Australia) Pty. Ltd. 38 N.S.W.L.R 47 held that the plaintiff had, through the negligence of the defendants lost the opportunity to have an abortion which would not necessarily have been unlawful. The court ordered a retrial on the issue as to whether an abortion would have been unlawful. Kirby P. considered that damages could be awarded for the cost of bringing up the child. Priestly J.A. was prepared to allow a limited recovery for “wrongful birth” but not for child rearing expenses and Meagher J. A. agreed with Priestly J. A. on this point, though in a dissenting opinion he concluded that public policy was an absolute bar to the award of damages in “wrongful birth” cases. In New Zealand there is a no fault compensation scheme. It is, however, instructive to note that the Accident and Compensation Authority held that there was no causal connection between the medical error and the cost of raising the child. In Germany the Constitutional Court has ruled that such a claim is unconstitutional in as much as it is subversive of the dignity of the child. But the Bundesgerichtshof has rejected this view and permits recovery of the costs of bringing up the child. The Federal Court observed that compensation not only has no detrimental effect on this child, but can be beneficial to it. In France The Cour de Cassation has ruled that:
“Whereas the existence of the child she has conceived cannot in itself constitute for the mother a loss legally justifying compensation, even if the birth occurred after an unsuccessful intervention intended to terminate the pregnancy”.
Such claims are not allowed. From this comparative survey I deduce that claims by parents for full compensation for the financial consequences of the birth of a healthy child have sometimes been allowed. It may be that the major theme in such cases is that one is simply dealing with an ordinary tort case in which there are no factors negativing liability in delict. Considerations of corrective justice as between the negligent surgeon and the parents were dominant in such decisions. In an overview one would have to say that more often such claims are not allowed. The grounds for decision are diverse. Sometimes it is said that there was no personal injury, a lack of forseeability of the costs of bringing up the child, no causative link between the breach of duty and the birth of a healthy child, or no loss since the joys of having a healthy child always outweigh the financial losses. Sometimes the idea that the couple could have avoided the financial costs of bringing up the unwanted child by abortion or adoption has influenced decisions. Policy considerations undoubtedly played a role in decisions denying a remedy for the cost of bringing up an unwanted child. My Lords, the discipline of comparative law does not aim at a poll of the solutions adopted in different countries. It has the different and inestimable value of sharpening our focus on the weight of competing considerations. And it reminds us that the law is part of the world of competing ideas markedly influenced by cultural differences. Thus Fleming has demonstrated that it may be of relevance, depending on the context, to know whether the particular state has an effective social security safety net”.
Whilst the five Law Lords in McFarlane came to the same conclusion they did so for different reasons. I think there is little to be gleaned by quoting large extracts from their individual speeches. Rather I should attempt to summarise the rationale for the decision. In the case of Lords Slynn, Steyn and Hope they took the view that a claim such as the present one was neither fair or just or reasonable. In the case of Lord Clyde considerations of distributive justice appeared to weigh heavily in leading him to his conclusion. Lord Millett’s view was rather similar to that expressed at first instance by Lord Gill to the effect that the advantages and disadvantages of parenthood are so bound up together that the benefits should be regarded as outweighing any loss. All of these appear to me to boil down to the view which I have already expressed in this judgment to the effect that their Lordships took the view that such a claim was neither fair or just or reasonable.
Indeed I am fortified in this expression of opinion by reference to the later case of Rees v. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309.
That was a case which resulted in seven Law Lords being assembled since they were asked to reconsider McFarlane’s case. A number of their Lordships were common to both cases. By a majority the decision in McFarlane was applied. In not disturbing McFarlane the Court considered developments which had taken place in the meantime in other countries and in particular the Australian case of Cattanach v. Melchior [2003] H.C.A. 38.
Perhaps the most useful speech from those in the majority in the Rees case is that of Lord Bingham of Cornhill. In reviewing the decision in McFarlane he said:
“The five members of the House who gave judgment in McFarlane adopted different approaches and gave different reasons for adopting the third solution listed in paragraph (3) above (i.e. that no damages may be recovered where the child is born healthy and without disability or impairment). But it seems to me clear that all of them were moved to adopt it for reasons of policy (legal, not public, policy). This is not a criticism. As Lord Denning M. R. said in Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373, 397:
“This case is entirely novel. Never before has a claim been made against a council or its surveyor for negligence in passing a house. The case itself can be brought within the words of Lord Atkin in Donoghue v. Stevenson: but it is a question whether we should apply them here. In Dorset Yacht Co. Limited v. Home Office [1970] A.C.1004, Lord Reid said, at p. 1023, that the words of Lord Atkin expressed a principle which ought to apply in general “unless there is some justification or valid explanation for its exclusion”. So did Lord Pearson at p. 1054. But Lord Diplock spoke differently. He said it was a guide but not a principle of universal application (p. 1060). It seems to me that it is a question of policy which we, as judges, have to decide. The time has come when, in cases of new import, we should decide them in accordance with the reason of the thing.
In previous times, when faced with a new problem, the judges have not openly asked themselves the question: what is the best policy for the law to adopt? But the question has been there in the background. It has been concealed behind such questions as “was the defendant under any duty to the plaintiff? Was the relationship between them sufficiently proximate? Was the injury direct or indirect? Was it foreseeable, or not? Was it too remote? and so forth.
Nowadays we direct ourselves to considerations of policy. In Rondel v. Worsley [1969] 1 AC 191, we thought that if advocates were liable to be sued for negligence they would be hampered in carrying out their duties. In Dorset Yacht Co. Limited v. Home Office [1970] AC 1004, we thought that the Home Office ought to pay for damage done by escaping Borstal boys, if the staff was negligent, but we confined it to damage done in the immediate vicinity. In S.C.M. (United Kingdom) Limited v. W.J. Whittall and Son Limited [1971] 1 Q.B. 337, some of us thought that economic loss ought not to be put on one pair of shoulders, but spread among all the sufferers. In Launchbury v. Morgans [1971] 2 Q.B. 245, we thought that as the owner of the family car was insured she should bear the loss. In short, we look at the relationship of the parties: and then say, as a matter of policy, on whom the loss should fall”.
The policy considerations underpinning the judgments of the House were, as I read them, an unwillingness to regard a child, (even if unwanted) as a financial liability and nothing else, a recognition that the rewards of parenthood (even if involuntary) may or may not bring cannot be quantified and a sense that to award potentially very large sums of damages to the parents of a normal and healthy child against a national health service always in need of funds to meet pressing demands would rightly offend the community sense of how public resources should be allocated”.
While this latter observation may have little application here nonetheless it seems to me that the question which I have to ask is one of principle or, if one prefers, policy.
Principle/Policy in Irish Law
The decision in the Supreme Court in Fletcher v. The Commissioners for Public Works [2003] 1 IR 465 makes it plain that it is proper to exclude an award of damages in certain circumstances on the grounds of policy. That case raised a question which had not been considered in this jurisdiction before. It was whether, and if so, to what extent and subject to what limitations, an action might lie in negligence where the sole injury for which damages were sought to be recovered was a psychiatric condition resulting from fear of contracting an illness in the future as a consequence of alleged negligent acts and omissions. In this court O’Neill J. awarded damages to the plaintiff. His decision was reversed by a unanimous Supreme Court with two written judgments being delivered. The first was that of Keane C. J. and the second was by Geoghegan J.
Both judgments recognised that a question of policy fell to be decided by the court. Indeed in his judgment Geoghegan J. mirrored to some extent the observations of Lord Denning M. R. in Dutton’s case, the relevant extract from which is contained in the quotation from the speech of Lord Bingham in the Rees case which I have already reproduced.
Geoghegan J. said:
“It is against this background of the case law, which I have reviewed, that this court must decide, as a matter of policy and of reasonableness, whether claims for damages for psychiatric injury only and resulting from fear of asbestos related diseases of a degree which is objectively irrational are recoverable. Traditionally, courts do not always use the actual word “policy”. They may attempt to draw artificial limits to what can be regarded as being reasonably foreseeable or they may, in considering proximity or other questions in relation to the existence of a duty of care, invoke the concept of reasonableness so that a duty of care will not in fact be imposed if the court considers it unreasonable to do so. The third control mechanism which the court may impose is in relation to particular heads of damage or finally, they may expressly deny a claim on grounds of public policy”.
Keane C. J. and Geoghegan J. both cite with approval observations from two different members of the House of Lords in the case of White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455. Keane C. J. cites the views of Lord Steyn whilst Geoghegan J. those of Lord Hoffmann.
Having quoted from Lord Hoffmann’s speech Geoghegan J. said that he agreed “that pragmatic control mechanisms must be applied in actions for pure psychiatric damage and, in many instances, even in the interests of distributive justice”.
These observations of the Supreme Court appear to entitle me to decide on the recoverability of damages as a matter of principle or legal policy since the question has never heretofore been considered by courts in this jurisdiction. In making that decision the court is entitled to have regard to concepts of reasonableness and distributive justice.
Decision on costs of upbringing
I conclude that it is not open to the plaintiff to recover damages for the cost of upbringing the two healthy children which she bore subsequent to her failed sterilisation. I do not believe that the law in this jurisdiction should be extended so as to allow the recovery of such damages.
I am persuaded that the conclusions reached by the House of Lords in both in the McFarlane and Rees cases are correct. They are to be preferred to the majority view expressed in the Australian case of Cattanach v. Melchior. I have not cited particular passages from the judgments in that case since I share the view of Lord Millett (as expressed in Rees) that “despite the diversity of opinion, the judgments cover familiar ground and contribute no new insight”.
I am of opinion that it would not be fair or reasonable to visit a doctor who negligently performs a sterilisation procedure with the cost of rearing a healthy child that is conceived and born subsequent to the failure of such procedure. Even if one disagrees with this approach the refusal to award damages in circumstances such as this can be equally justified by considerations of distributive justice as particularly exemplified in the speech of Lord Clyde. Alternatively the view can be justified by reference to the views of Lord Gill at first instance and Lord Millett in the House of Lords to the effect that the benefits of a healthy child outweigh any loss incurred in rearing the child. Whilst the parties here have agreed the quantum of damages a decision in favour of the claim made would open the door to a limitless range of claims related to every aspect of family life.
I obtain some comfort that in arriving at this decision, the court is in harmony with the majority of decisions in the common law world. The vast majority of state courts in the United States, the courts of England and Wales, Scotland and a number of civil law courts are of like mind.
I am also of opinion that the conclusion which I have arrived at blends more harmoniously with the constitutional order which obtains in this jurisdiction then would a decision to the contrary. The value which the Constitution places upon the family, the dignity and protection which it affords to human life are matters which are, in my view, better served by a decision to deny rather than allow damages of the type claimed.
Accordingly I refuse to award damages in respect of the costs of rearing Danielle and Damien.
Assessment of Damages
There is no doubt but that the plaintiff is entitled to recover damages for having to undergo a second tubal ligation. That was carried out on the 5th December, 2002. The plaintiff has no recollection of it. It was carried out by Dr. Boylan and was quite straightforward. It did not involve overnight hospitalisation and the plaintiff had no complaints thereafter. She must also have had the usual anxiety that accompanies any surgical procedure and is entitled to be compensated for that. It was however a minor procedure carried out speedily and uneventfully. I award the sum of €10,000 damages to compensate for having to undergo this second operation.
As I have already pointed out, the defendant has conceded that in the event of a finding of negligence the plaintiff is entitled to damages for the pain, suffering and inconvenience of pregnancy and childbirth together with any special damages for extra medical expenses involved. The question of principle as to whether there is in law an entitlement to such damages will have to await another case where a concession such as the one made in this case is not forthcoming. It is sufficient to record that there is no unanimity of judicial opinion throughout the common law world on the topic.
Pregnancy is not an illness or a disease. It does cause pain, sickness and distress. It is an entirely natural process. In the present case it resulted in the births of two unique human beings, Danielle and Damien, who are both healthy. Danielle was born one month prior to term. She did have some breathing difficulties and some infections thereafter but they had all resolved within a year and she is a healthy child. Damien was born seven and a half weeks prior to term. He is also healthy.
I accept the plaintiff’s evidence that both pregnancies had attendant difficulties over and above what might be regarded as the norm. In the case of Danielle the plaintiff had to wear a support strap which was found to be ineffective and so for six to eight weeks prior to and subsequent to her confinement was on crutches. In the case of her pregnancy with Damien she had similar difficulties and was on crutches for three weeks prior to his birth. She had to remain on crutches for six to eight weeks subsequent thereto. Danielle’s pregnancy was the longer of the two and the more difficult from the plaintiff’s point of view.
In assessing damages I also take account of the shock and emotional distress caused to the plaintiff when she discovered that she was pregnant with these two children. She did not want either pregnancy and would not have had them but for the defendants breaches of duty.
I assess damages in respect of the pregnancy and birth of Danielle at €45,000. In respect of the pregnancy and birth of Damien I award €35,000.
Result
I award the plaintiff a total of €90,000 damages in respect of the second tubal ligation and the pregnancy and birth of Danielle and Damien. I dismiss the claim for agreed damages in the total sum of €381,678 for the upbringing of the two children.
Byrne v Ryan
[2007] I.E.H.C. 2007
JUDGMENT of Mr. Justice Kelly delivered 20th day of June, 2007
INTRODUCTION
This is a claim for damages for negligence arising out of a failed sterilisation of the plaintiff. That sterilisation was sought to be achieved by a tubal ligation which was carried out in the Coombe Hospital on 16th December, 1999. Subsequent to it, the plaintiff bore two children.
She brings this claim against the defendant, who is the nominee of that hospital.
The plaintiff seeks damages under two headings. The first claim is for what her counsel described as the physical consequences of the failure of the operation. The second is for the recoupment of the cost of rearing the two children until such time as they cease to be dependant on their parents. In monetary terms this claim is by far the larger of the two.
Apart from the usual difficult questions which a court has to deal with in any medical malpractice suit this case has raised two others, neither of which have been the subject of judicial determination in this jurisdiction. The first is the vicarious liability, if any, of a public hospital for the negligence of a consultant doctor on its staff in treating a public patient. The second is the entitlement to recover damages for the cost of rearing a healthy child born subsequent to a failed sterilisation.
Neither of these questions will, of course, have to be answered unless the plaintiff proves that the operation in question was a failure and that its failure was as a result of the negligence of the consultant who carried it out. It is to these questions that I turn in the first instance.
The Plaintiff
The plaintiff was born on the 6th May, 1962. She married her husband Daniel on 13th October, 1979. She was then seventeen years of age.
The first of her seven children, James, was born on 17th December, 1979.
The plaintiff had a miscarriage in 1980.
On 27th December, 1981 her second son, Derek, was born.
On 19th November, 1984 she had twins, Donal and Aisling.
Her fifth child, Alan, was born on 19th June, 1988.
The plaintiff was dealt with in the Coombe Hospital for each of these confinements and for the miscarriage which took place in 1980.
In 1991 she had an ectopic pregnancy despite taking the oral contraceptive pill. Again she was treated in the Coombe Hospital. Following that experience she attended at the Adelaide Hospital for advice on the question of sterilisation. She decided against it. Throughout the 1990’s she took the oral contraceptive pill.
In 1997 the plaintiff was involved in a motor accident and inter alia suffered depression as a result of it.
By late 1998, the plaintiff had decided that she did not want to have any more children. She was quite definite about it.
The plaintiff’s general practitioner was Dr. Brian Dunne. She consulted him on the question of sterilisation. As a result he wrote a letter of referral to the Coombe hospital in the following terms:
“19th November, 1998
Gynae Clinic
Coombe Hospital,
Dublin 8
Re – Bridget Byrne, 1567 Lee Drive, Calverstown, Kilcullen, Co. Kildare.
Date of Birth 06/05/1962.
Dear Doctor,
I would be grateful if your (sic) send Bridget an appointment to be assessed for tubal ligation.
She has five children and had a tubal pregnancy in 1991.
Many thanks.
Yours sincerely,
Dr. Brian Dunne”.
It was as a result of that letter that she ultimately came under the care of Dr. Charles Murray.
Dr. Charles Murray
Dr. Murray qualified in medicine at University College, Dublin in 1962. He then went to Leeds United Hospital were he worked in the women’s and maternity hospital. Whilst there he obtained his membership of the Royal College of Obstetricians and Gynaecologists. Thereafter he went to the United States on a research fellowship. He returned to the Coombe Hospital in 1969 as Assistant Master. He was then made Senior Registrar and in 1975 became a Consultant at that hospital. He remained as a Consultant at the Coombe until his retirement in June, 2001.
Dr. Murray has extensive experience of performing tubal ligations. He carried out his first such operation in the middle of the 1960’s in England. At that stage the procedure was done by open surgery. It was not done laparoscopically until more recent times.
Dr. Murray recounted that in his early years “tubal ligation wasn’t tolerated” in the Coombe Hospital. Then the board of the Hospital allowed it in restricted circumstances. Following the decision of the Supreme Court in the McGee case (McGee v. Attorney General [1974] I.R. 287), all of this changed. To use his own words “the law changed and things changed from there. So I did an awful lot of them.”
He recalled that he was asked by the then Master to take over the family planning clinic at the Hospital. He described that title as a misnomer because what he called “standard family planning” was conducted elsewhere and the patients referred to this clinic were almost universally sent for consideration for tubal ligation. Thus it was he who was in charge of the conduct of tubal ligations in the Coombe Hospital for many years. By the year 2000 he estimated that he would have carried out that procedure “in the high hundreds and probably in the thousands”. He was therefore a consultant of great experience in tubal ligation.
The operation
The plaintiff was considered suitable for tubal ligation and it was carried out on the 16th December, 1999 by Dr. Murray. Not surprisingly he had no recollection of the operation but the theatre records and operating notes of the procedure had been kept and he was able to refresh his memory by reference to them.
The procedure was carried out laparoscopically. Dr. Murray described filling the plaintiff’s abdomen with three litres of carbon dioxide gas and then inserting the relevant instruments around the belly button area. He discovered that there were multiple adhesions from the anterior abdominal wall present. That was because the plaintiff had had previous surgery and also had had an ectopic pregnancy. He dealt with those adhesions as part of the procedure. He was able to dissect them off with the instruments which he was using so that he could see what he was supposed to be doing. Then he “just clipped the tubes”. He said there was a little difficulty because of the adhesions but he was satisfied that he had clipped the tubes.
Dr. Murray went on to say that over the years there were three or four instances where he was not altogether happy that he had achieved a satisfactory tubal ligation. In such circumstances he organised a histo- salpinogram to be carried out some six weeks after the operation. He did not do so in this case.
Following the operation Dr. Murray wrote to Dr. Dunne as follows:
“This is just to let you know that your patient Mrs. Byrne had a laparoscopic sterilisation undertaken here a few weeks ago. The operation was straightforward and she was discharged a few hours later”.
In evidence Dr. Murray said that the use of the term “straightforward” in that letter meant that there were no complications. He pointed out that the procedure is fraught with a lot of serious things which may go wrong such as damage being caused to the bowel, to the bladder, or to blood vessels. What he meant by the letter was that nothing of that nature occurred.
It is quite clear that Dr. Murray believed that he had carried out an effective tubal ligation. He believed that he had been able to deal with the adhesions and had clipped the plaintiff’s tubes. Had he had any doubts about, this I am satisfied that he would not have proceeded laparoscopically but would have changed to an open procedure and/or would have had a histo-salpinogram carried out. He was fully satisfied that the operation done by him was a success.
Unfortunately Dr. Murray was wrong. It is common case that a second tubal ligation was carried out on the plaintiff in December, 2002. It was done by Dr. Peter Boylan. He made a video recording of the procedure. The video was seen by Dr. Murray and he accepted (and indeed had no doubt) that, rather than clipping one of the plaintiff’s fallopian tubes, he in fact attached the clip to tissue just beside it. He was unable to explain how this happened. Counsel then put the following questions to him:
“Question: Doctor, I have to suggest to you that if you had been using the care which was appropriate to somebody of your experience and eminence that would not have happened? Answer: I was a very careful surgeon all my life.
Question: I understand that.
Answer: And I operated carefully. I cannot explain why this happened or how it happened but I would reject the idea that I wasn’t careful.
Question: But it is not something that can happen if the procedure which you have described is carried out carefully? Answer: Well, we were dealing with adhesions here. I freed adhesions to a degree that allowed me, as far as I was concerned, to establish – I was not looking for the full length of the fallopian tube but for an area of tube that I could clip… Question: So the existence of the adhesions did not prevent you from identifying the fallopian tube?
Answer: I don’t think so. I would doubt that.
Question: In fact you have already said to us that if you had been unhappy about your capacity to visualise the fallopian tube because of adhesions, you would have gone to a laparotomy?
Answer: I would have gone to a laparotomy, yes.
Question: So I now return to my question, Doctor, if you had removed or dissected away the adhesions sufficiently to visualise the fallopian tube, how could you apply the clip to something other than the fallopian tube if you had carefully followed the procedure which you have described to us?
Answer: I can’t answer that one because I don’t know, but I assume that I mistook a roll of tissue which was adjacent to the tube as the tube in this circumstance. That is all I can say. I have no idea…
Question: But what I am putting to you is that that couldn’t happen if you carefully followed the procedure which you have described of identifying the fallopian tube, applying the clip to it and then confirming by again identifying the location of the clip that it was on the fallopian tube?
Answer: Yes. Clearly I misidentified the fallopian tube by the sound of things. That is all I can say.
Question: Doctor, I must put it to you that that is not an acceptable result for a tubal ligation carried out by a consultant gynaecologist and obstetrician?
Answer: Well, it is an unfortunate result but I would disclaim the fact I was negligent. I was never negligent in my approach”.
The question which I must now address is whether this misidentification of a piece of tissue for a fallopian tube, resulting in it rather than the tube being clipped, constitutes negligence.
Expert Witnesses
Although Professor Colm O’Herlihy was listed as an expert witness to be called on behalf of the defendant, he was not in fact called to give evidence.
Two experts were called by the plaintiff. One was Dr. Peter Boylan who carried out the second sterilisation in December 2002. The other was Dr. Peter McKenna.
Dr. Peter Boylan
Dr. Boylan qualified in medicine in 1974. He trained in Dublin and London and then worked in the United States. From 1991 to 1998 he was Master of The National Maternity Hospital and is at present a consultant obstetrician/gynaecologist at that hospital.
The plaintiff was referred to him by her general practitioner with a request for consideration for tubal ligation. He saw her on 23rd May, 2002 and recorded her earlier medical history. That included the fact that she had the tubal ligation the subject of this action but subsequently bore two children in 2000 and 2001. He carried out the second tubal ligation in December, 2002.
In the course of carrying out the procedure he had to dissect away adhesions at the plaintiff’s left fallopian tube. Having done so, he was able to see that the clip present was not on the plaintiff’s left tube. He took the view that the probability was that the clip had not been placed on the left tube at the first operation. The clip was clearly on the right tube but not on the left. He said as follows:
“Question: In relation to the first procedure then, can you comment on the failure of that operation?
Answer: Well, I think probably the clip was not put on the left tube. It was thought to be on the left tube but I think that it was an error of thought, if you like, or a mistaken impression because it wasn’t on the tube and the clip was clearly on the right hand side. The procedure was done by a very experienced and very skilled surgeon who, clearly, formed the impression that the clip had been put in the right place, but I don’t think it had.
Question: But is it possible to be sure to check the route of the fallopian tube in order to identify… (interjection)?
Answer: Yes, I mean, there are anatomical reference points which make it clear that you are putting the clip on the tube. When we are teaching juniors, for example, about how to do this procedure, we show them how you identify the tube and differentiate it from another tube which is very close to the fallopian tube, which is the one you are trying to block, which actually looks quite similar and it is one of the common errors that a more junior person would make with a clear view.
Question: But in relation to a person with experience and holding the status of a Consultant, such a person using reasonable care, would you expect them to be able to identify correctly the appropriate tube to clip?
Answer: You would yeah.
Question: Does it follow that a failure to make that identification falls below the reasonable standard of care for such a person?
Answer: Well, I think it is a mistake. Obviously, the clip was put in the wrong place under the impression that it was put in the correct place, but that was incorrect. You know, I don’t know whether it is for me to say whether or not it falls below the standard of care, but you would expect the person doing it to take pretty good precautions to ensure it was in the correct place, yes.
Question: Well would such a person have been taught and had explained to them and perhaps even a person of that seniority taught others to take care which would avoid a mistake of this kind?
Answer: Yes, that’s a fair comment”.
In cross-examination Dr. Boylan accepted that there is a recognised
failure rate with tubal ligation. The failure rate is higher when an open procedure is used. This is because most of such procedures are done at the time of a caesarean section and the higher failure rate is attributable to the increased blood supply to the tubes at the time. He identified the commonest reason for failure as the clip being placed other than on the fallopian tube. However he went on to say that a doctor cannot put a clip on something which is not a fallopian tube and claim or believe that he had done a successful tubal ligation. He pointed out that most of the failures occur when the operation is carried out by more junior people because they mistakenly put the clips on the round ligament which looks very like a fallopian tube. He went on to say:
“In cases like this where there are adhesions and where it is done by a very experienced clinician, then you would expect that extra efforts would be made, because of the adhesions, to make sure that the tube was, in fact, in the right place. But I certainly accept that the clinician may have believed that the clip was in the right place, or else he wouldn’t have finished the surgery”.
Dr. Peter McKenna
Dr. McKenna qualified as a doctor in 1974. He is a consultant obstetrician in the Rotunda and Mater Hospitals. Until 2001 he was the Master of the Rotunda. He was never involved in treating the plaintiff. For the purpose of giving evidence he had access to all of the relevant hospital records concerning the plaintiff and the video recording made by Dr. Boylan at the time of the second tubal ligation.
Dr. McKenna identified three reasons why a woman can have a baby after a tubal ligation. The first is that she was pregnant at the time of the procedure (a question which I will have to consider later in this judgment). The second is that the clip was not put in the right place, in which case the woman was never sterilised at all. The third is that the clip was in fact put on the right place but through the passage of time it eroded in which case there was a brief period where the egg made contact with the sperm. This third reason is not due to any failure on the part of the operator. It is a failure intrinsic to the technique.
He said:
“My understanding would be that if the patient is pregnant at the time of the procedure, that is her affair. If the technique fails because the clip erodes through, having been put on the right place, well it does happen and nobody is to blame for that. But if the clip is put on the incorrect place and the patient has never been sterilised and the operation was not done correctly that is a different matter”.
Later he said:
“One would have expected a Consultant Gynaecologist to put the clips on the correct place. If not, to have recognised that and to have expressed their concern to the patient subsequently”.
“Question: Are there anatomical points which enable the correct tube to be located for the purpose of locating the clip in the correct place?
Answer: Yes, there are, it is not that difficult”.
In cross-examination he accepted that it appeared that Dr. Murray believed that he had in fact placed the clip in the right place and that his procedure was successful. He was then asked (and answered) a question which is really one for the court. It was as follows:
“Question: But it does not necessarily imply that he (Dr. Murray) was in breach of his duty of care I suggest?
Answer: That is not necessarily for me to say, that is a matter for the legal system. But I would always have approached it that if the woman is pregnant at the time of the surgery, that is her look out. If you put the clip on the right place and it wears through, nobody is to blame. But if you put the clip on the wrong place and there are no extenuating circumstances, the operator has got to face the music for that”.
The Legal Test
The appropriate legal test by which Dr. Murray’s conduct of the tubal ligation procedure has to be judged is that prescribed by the Supreme Court in Dunne v. National Maternity Hospital [1989] I.R. 91. In that case Finlay C.J. summarised six principles which he distilled from a consideration of a series of earlier cases. The first principle is the relevant one for this case. It reads as follows:
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care”.
That principle has to be understood and applied in the context of observations made by the same judge at page 110 of the report where he said:
“In order fully to understand these principles and their application to any particular set of facts, it is, I believe, helpful to set out certain broad parameters which would appear to underline their establishment. The development of medical science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent with the common good that doctors should be obliged to carry out their professional duties under frequent threat of unsustainable legal claims. The complete dependence of patients on the skill and care of their medical attendants and the gravity from their point of view of a failure in such care, makes it undesirable and unjustifiable to accept as a matter of law a lax or permissive standard of care for the purpose of assessing what is and is not medical negligence. In developing the legal principles outlined and in applying them to the facts of each individual case, the courts must constantly seek to give equal regard to both of these considerations”.
Conclusions on tubal ligation
I have set out in some detail the evidence given by Drs. Murray, Boylan and McKenna. There is no dispute but that Dr. Murray failed to apply the clip to the plaintiff’s left fallopian tube. He was a consultant of very considerable experience when he carried out the operation. The thrust of the evidence from the two experts leads me to the conclusion that that failure on the part of Dr. Murray was one which no medical practitioner of equal specialist status and skill would have been guilty of if acting with ordinary care. To put it in the words of Dr. McKenna:
“If you put the clip on the wrong place and there are no extenuating circumstances, the operator has got to face the music for that”.
The presence of adhesions in the present case did not in my view constitute an extenuating circumstance such as would excuse what occurred. There was a breach of the duty of care owed to the plaintiff.
The plaintiff’s consent
Prior to the operation being carried the plaintiff executed a consent which read as follows:
“Sterilisation
Consent by Patient
I, Bridget Byrne hereby consent to undergo the operation of sterilisation the nature and purpose of which has been explained to me by Dr./Mr. Murray.
I have been told that the intention of the operation is to render me sterile and incapable of further parenthood. I understand that there is a possibility that I may not become or remain sterile.
I also consent to the administration of a general, local or other anaesthetic.
No assurance has been given to me that the operation will be performed by any particular surgeon”.
The plaintiff signed that form as did Dr. Murray who confirmed on it that he had explained to the patient the nature and purpose of the operation.
All three specialists who gave evidence accepted that tubal ligation is not always successful and has a recognised failure rate. The form of consent executed by the plaintiff recognises that the operation may not be successful. For example, even if the clips are placed correctly they may wear through as described by Dr. McKenna in evidence. In such circumstances no liability could attach to the doctor who performed the ultimately unsuccessful sterilisation.
The defendant contends in his written submissions that by executing this document the plaintiff “consented to that risk of failure”, thus relieving Dr. Murray of any liability. I cannot accept such a proposition.
First, the document in its terms is a consent to the operation being carried out and the administration of an anaesthetic. It is not a consent to the carrying out of a failure; still less is it a consent to the carrying out of the operation in a negligent fashion. It merely records the plaintiff’s understanding that there is a possibility of failure. It might be possible to draft a form of consent which would exclude liability on the part of a doctor for negligent treatment but there is no attempt to do so here. In my view the consent executed by the plaintiff cannot be regarded as one which exonerates Dr. Murray in respect of his failure to effectively clip both fallopian tubes.
Events after the sterilisation
The plaintiff’s sterilisation on the 16th December, 1999 was dealt with as a day case. She arrived at 7.30 in the morning, had the procedure carried out and was discharged on the afternoon of that day. She was not asked as to whether she might be pregnant at the time of the operation, nor was she required to have a pregnancy test. Her last menstrual period was recorded in the hospital record as being the 1st December, 1999. She was not asked to return to the hospital after the operation.
Apart from some discomfort she recovered well from the procedure.
In February 2000, she began to suffer from abdominal pains. She consulted Dr. Dunne. He thought she was suffering from adhesions left over from the ectopic pregnancy and that the sterilisation had irritated them.
On the 30th March, 2000 she suffered extreme abdominal pain as a result of which she went to the Accident and Emergency Department of Naas Hospital. At the hospital a routine urine sample was taken. A short time later a doctor came and asked the plaintiff how old her baby was. She told the doctor that she was not pregnant and that he must have the wrong chart. However he confirmed that she was three months pregnant. She was detained in hospital for a few days and then allowed home. Following discharge from Naas Hospital she consulted her general practitioner who transferred her to the Coombe for attention.
June 2000
The plaintiff was seen at an ante natal visit on the 1st June, 2000. Her last menstrual period was recorded in the hospital notes as having taken place on the 2nd January, 2000. A scan was carried out, which suggested that she was twenty three weeks pregnant, rather than the twenty one which was expected by reference to her last menstrual period. This discrepancy between the two dates is an issue which figured during the plaintiff’s subsequent hospitalisation and indeed during the trial. Obviously if the length of pregnancy is calculated by reference to the scan, it suggests that the plaintiff was pregnant at the time Dr. Murray carried out the sterilisation. If, on the other hand, it is calculated by reference to the plaintiff’s last menstrual period, the pregnancy occurred subsequent to the tubal ligation.
The plaintiff alleged that at the time when this scan was done somebody said to her that she might have been pregnant before she had the sterilisation. She alleged that the girl who had carried out the scan said that “the clips were on the tubes and they were secure”. It is remarkable that the plaintiff, who had such poor recollection of other events, could remember this. I am not satisfied that this event occurred. All the evidence is to the effect that such an observation could not be made by reference to the scan. I think it likely that there was mention of the possibility of the plaintiff being pregnant at the time of the sterilisation. The plaintiff got the impression from that discussion that she was pregnant at the time of the sterilisation.
The plaintiff was not detained in hospital in June and returned home.
The plaintiff returned to the hospital complaining of abdominal pain on the 6th July, 2000.
The July visit
This was the plaintiff’s second ante natal visit to the hospital. The plaintiff was complaining of abdominal pain and on this occasion was seen by a consultant, Mr. Tom D’Arcy.
Mr. D’Arcy
Mr. D’Arcy is a Fellow of the Royal College of Surgeons in Ireland and a member of the Royal College of Obstetricians and Gynaecologists. He qualified in medicine in 1984 and has been a consultant at both the Coombe Hospital and St. James’s Hospital in Dublin since 2000.
Mr D’Arcy struck me as a very competent and thorough doctor with a great concern for the plaintiff.
He explained in great detail the examinations and tests which he carried out on the plaintiff when she came under his care on the 6th July, 2000. His first concern was that, having regard to her complaints and her previous obstetrical history, she might be in pre-term labour. Having carried out these examinations and tests he concluded that she was not. His second concern was to try and establish her dates and to “make sense of the disparity between those that were determined by her last menstrual period or her presumed last menstrual period on the 2nd January, 2000 and those that had been suggested on the basis of her booking scan”. It is not necessary for the purpose of this judgment to set out in detail the various tests and calculations which he did and indeed the thinking process behind them. He certainly explored the question meticulously and came to the conclusion that it was more than likely that the plaintiff had conceived after her sterilisation. He was quite unequivocal about this in his evidence and in particular when asked the following question:
“Q. Going back now to the month of July, 6th July, you are saying on that date you had come to the strong conclusion that the tubal ligation had failed. Inst that what the sum total of your evidence before lunch was?
A. Yes.”
I am quite satisfied that Mr. D’Arcy thoroughly and comprehensively carried out all necessary tests and examinations on the plaintiff so as to ascertain the true position concerning the length of her pregnancy. He concluded that she had become pregnant after the sterilisation. In my view he was correct in so concluding. The sterilisation had failed.
The question arises as to whether the plaintiff was told this. An issue also arises as to whether that information was communicated to other medical or nursing practitioners who would be involved in the subsequent care and management of the plaintiff.
Was the Plaintiff informed?
The plaintiff had no recollection of ever being informed during the course of her pregnancy with her sixth child Danielle that her tubal litigation had failed. She ought to have been so informed. That is the clear and uncontroverted view of Doctors Boylan and McKenna which I accept. Not only ought she to have been told, but other steps ought to have been taken by way of advice to her and procedures followed which were detailed in the evidence of those two doctors.
If the plaintiff had been so informed, I think it likely that she would have behaved in a manner other than she did following the birth of Danielle.
None of the doctors called by the defendant had any recollection of a conversation with the plaintiff during the course of her pregnancy in which she was told that her sterilisation had failed. This is understandable given their work load and the lapse of time. However, Dr. Boylan was clear that if an appropriate conversation had taken place with the plaintiff on this topic it would have been noted in her chart. His view in that regard was shared by Dr. Murray himself who said that he would expect a doctor to generally write in the chart that a patient had been informed of a failed ligation and given advice. No such note appears in the plaintiff’s medical records.
Mr. D’Arcy, quite understandably, had no recollection of having such a conversation with the plaintiff. In his evidence he said that he:
“certainly would not have given her to understand that her sterilisation had been successful, most certainly not, because there were grounds for considering otherwise having established the difference in her last menstrual period and having established exactly when she was sterilised and having considered also the fact that she had been on the oral contraceptive pill up to one week before she was actually sterilised”.
Later in his testimony he said that he could not honestly say that he used the exact words that the plaintiff’s “tubal ligation had failed”. In re-examination he said that if he couldn’t say that he used those exact words he believed that he told her that her tubal ligation had failed.
As I have already observed nowhere is it noted that such information was given to the plaintiff. In answer to questions which I put to Mr. D’Arcy he said that he does not always write down what he has said directly to a patient. However, he said if there were some very specific facts he would document them. If he felt the need to actually document a very specific meeting with a patient then he would be inclined to dictate a letter as to that meeting which he would then have placed within the notes and a copy sent to the patient’s general practitioner or to the patient as well. Whilst he accepted that a failed tubal ligation was a rare occurrence he did not regard it as one of the specific instances where he would note what he might have said to the patient.
I am satisfied on the evidence that Mr. D’Arcy did not inform the plaintiff in terms clear to her that her tubal ligation had failed. Whatever may have been said it did not make the position clear to her. Given the comparative rarity of a failed tubal ligation and the consequences of such for the plaintiff I think it probable that if he had told the plaintiff of this he would have either noted the matter in the chart or have prepared a letter for inclusion on the chart with a copy being sent to the plaintiff’s general practitioner. Mr. D’Arcy, very reasonably, was more concerned at the time with the plaintiff’s pain and the condition with which she was presenting together with her history on previous pregnancies where she had required a cervical suture than with this issue. He did not deal with her again.
I also think it likely that, if she had been told, not only would the plaintiff’s general practitioner have been informed but as a matter of professional courtesy, Dr. Murray would also have been informed. Neither of these things happened.
My findings in this regard are fortified by the actual notations which were made in the plaintiff’s chart.
The Chart
Mr. D’Arcy is the only consultant identified in evidence as having made an entry on the plaintiff’s chart during her pregnancy with Danielle.
Mr. D’Arcy dealt with the patient on the 6th July, 2000. He noted the discrepancy between her dates by reference to the scan results and her last menstrual period as related by her. Using distinctive green ink he wrote “measurements might suggest that she was pregnant just before TL given variation”. He made other notations in green which are not of relevance here. He told me that this entry demonstrated a state in the process of his thinking and that when he ascertained that the tubal ligation had taken place on the 16th December, 1999 and that the plaintiff had been on the oral contraceptive pill until one week before that date he came to the conclusion that the tubal ligation more than likely had failed and that she had conceived after the sterilisation.
On the same page in the chart there are notes of what occurred on the plaintiff’s first ante-natal visit to the hospital on the 1st June, 2000. Some unidentified doctor had written the words “Lap TL December 99 – failed TL”. When Mr. D’Arcy obtained additional information from the plaintiff he inserted into this notation the figure “16” before the word “December” and he wrote under the notation “On OC pill until 1/52 before TL”. These notes were made by Mr. D’Arcy in black ink rather than his characteristic green. Although he initialled the green notation he did not initial the notation made in black. It would not have been apparent to anybody reading the chart that the added words in black ink had been written by Mr. D’Arcy.
Mr. D’Arcy considered that this notation made it clear to anybody subsequently reading the chart that the plaintiff had a failed tubal ligation. In answer to two questions put by me he said as follows:
“Question: Mr. D’Arcy am I correct in thinking that the thrust of your evidence is that another medical practitioner in the obstetrics area on looking at this note here would come away with a clear conclusion that a failed tubal ligation was the cause of the problem?
Answer: That is correct.
Question: And does it dispose in your view for once and for all the possibility of her having been pregnant at the time of the tubal ligation?
Answer: Yes it does”.
Whilst I do not doubt the sincerity of Mr. D’Arcy’s views in this regard I cannot accept on the evidence that his notes did in fact achieve this desired result.
According to the evidence of Dr. McKenna if there was doubt as to whether the woman was pregnant before or after the tubal ligation a senior clinician ought to have noted in the chart that she needed to have her tubal patency checked at eight weeks. He was unequivocal in his view in that regard. Such a note would infer there was genuine doubt as to the efficacy of the tubal ligation. He could not discern any such entry on the chart. There is none.
The evidence of Mr. D’Arcy is that he had come to the clear conclusion that the tubal ligation had failed but there is no unequivocal note to that effect on the chart.
That Mr. D’Arcy’s entries on the chart did not convey to other medical and nursing staff in the hospital his clear view as to the failure of the sterilisation can be gleaned by reference to notations which appear subsequent to those made by him on the 6th July, 2000.
On the same date at 18.50 hours a mid-wife recorded: “Had TL in December 99. Had period type bleed in January, 2000 scan dates today suggests she was pregnant before the TL”. Next day, the 7th July, 2000 Dr. Sarma a Senior House Officer in Obstetrics wrote “T/L December 99 pregnant prior”. If matters were as clear as Mr. D’Arcy believed it is unlikely that these notes would have made.
In my view the criticism made by Dr. McKenna that the plaintiff’s chart did not contain an appropriate unequivocal statement as to Mr. D’Arcy’s conclusions is well founded.
Events post Danielle’s birth
Danielle was born on the 11th September, 2000.
At the time of the plaintiff’s discharge from hospital after that event she was seen by Dr. Caoimhe Lynch.
Dr. Lynch qualified in medicine in 1999 and was a Senior House Officer in the Coombe having commenced work there in July, 2000. She has since obtained her Membership of the Royal College of Obstetricians and Gynaecologists in London and is also a Member of the Royal College of Physicians in Ireland. At present she is a clinical research fellow and specialist registrar in obstetrics and gynaecology attached to the Coombe Hospital.
Dr. Lynch cannot be criticised for the fact that she had no recollection of the conversation which she had with the plaintiff when discharging her from hospital on the 4th September, 2000.
Dr. Lynch made good notes in the plaintiff’s chart pertaining to the plaintiff’s discharge from hospital. It is quite clear that Dr. Lynch was very thorough in satisfying herself that the patient was fit for discharge on the day in question. That can be gleaned not merely from her evidence but also from the notes which she made on that occasion.
The note which is relevant for the purpose of this case relates to the plan which Dr. Lynch created for the plaintiff. It read:
“- To see physiotherapist today prior to discharge
– post natal OPD 6/52
(to discuss fertility – PT pregnant – post TL”
Dr. Lynch required the plaintiff to come back to hospital rather than have a normal six week visit with her general practitioner. This was because as she put it she was
“Highlighting the fact that she needed to come back to the hospital and the reason – I put it in brackets – was to discuss her fertility because of the fact that she had become pregnant post tubal ligation”.
Dr. Lynch told me that she did not assume that the plaintiff was pregnant at the time of her sterilisation. When asked what was her view as to when the plaintiff became pregnant she said:
“Well, I would feel that there was a question that she had become pregnant following a tubal ligation. It was felt looking at the notes and establishing the dates that she was probably pregnant following the tubal ligation but that this had to be confirmed and hence the six week appointment to come back to the hospital”.
Later in her evidence Dr. Lynch accepted that her note did not indicate that the plaintiff became pregnant following a tubal ligation because she was not in a position to make such a note. That is quite understandable given her juniority. No clear note to such effect was on the chart adding fortification for my finding that the entries made on the chart by Mr. D’Arcy did not clearly record his conclusion that the plaintiff had become pregnant following the tubal ligation.
Dr. Lynch was a very junior doctor and was aware of the delicacy of her position and how inappropriate it would have been for her at this juncture to reach a conclusion that the tubal ligation had failed. She quite properly recorded that the plaintiff had become pregnant post tubal ligation.
Dr. Lynch was clear that she would not simply have told the plaintiff to come back in six weeks time. Rather she would have explained to her why she wanted her to do so. That was made evident in a number of different places in her evidence. She said:
“I would have explained why I wanted her to come back…. So one can assume that in the context of saying to the patient that she needed to come back to the clinic in six weeks, that you need to qualify the statement as to why you want her to come back in six weeks. Otherwise, they won’t come back at all”.
Later in her evidence Dr. Lynch told me:
“But I would say that it was appropriate that she was to come back for her post natal appointment and in highlighting the fact to her that I had questioned whether her tubal ligation was a success”.
However it is clear from the next answer from Dr. Lynch that she did not make any comment on whether the plaintiff’s tubal ligation was successful.
The plaintiff was discharged. No contraceptive was prescribed. Dr. Lynch accepts that she did not note informing the plaintiff that she should assume that she was fertile and would become pregnant unless she took contraceptive precautions.
Dr. Lynch struck me as a very competent and conscientious doctor who went about her duties in discharging the plaintiff is a thorough manner. I am satisfied that she carried out a full and detailed consideration of the plaintiff’s position and her records and had a discussion with her. Dr. Lynch was clearly concerned at the fact that the plaintiff had become pregnant subsequent to a tubal ligation. But there was nothing on the chart by way of a definitive note to say the ligation had failed. It was not up to Dr. Lynch to make such a finding. Indeed she was in a very difficult position because to have expressed the view that the sterilisation was a failure, given her level of juniority, could have created many difficulties given that she would be directly criticising an operation carried out by a very senior consultant in the hospital.
I am satisfied that she told the plaintiff to return to the hospital for a check-up six weeks subsequent to the discharge and that she made it clear to the plaintiff that there was uncertainty about her fertility and that it needed to be checked. She was, understandably, unable to say to the plaintiff that the sterilisation had failed.
Accordingly the plaintiff was discharged without being told then or at any stage during her stay in the Coombe in clear and unequivocal terms that her tubal ligation had failed.
She was undoubtedly told to return for an out-patients appointment six weeks after discharge and she was advised to do so because of uncertainty about her fertility.
I should record that Dr. Lynch was not the only member of the hospital personnel to see the plaintiff prior to her discharge. She was also seen by Ms. Elizabeth Byrne. She is a registered nurse and midwife and was employed in the Family Planning Department of the Coombe Hospital as a clinical midwife manager.
The hospital records demonstrate that on the 3rd September, 2000 the plaintiff was offered a leaflet that contained advice on all family planning methods that were available. That was given to her by the nursing staff on the ward. In addition however the chart notes that the ward staff requested Ms. Byrne to call on the patient for the purpose of giving family planning advice.
Ms. Byrne saw the plaintiff on the 4th September. The purpose of the visit would be to make the plaintiff aware of her fertility and to offer advice on what options were available.
Ms. Byrne had no recollection of any discussion with the plaintiff. Whilst she would have had access to the plaintiff’s chart it was not her invariable practice to look at it and she was unable to remember whether she did so in the case of the plaintiff. Little assistance can be gleaned from Ms. Byrne’s evidence. That is not a criticism of her as it would be quite impossible for her to have a recollection of having dealt with the plaintiff given that she would see about 2000 patients in any year.
Conclusions on information given to plaintiff
At no stage during her pregnancy or after delivery was the plaintiff clearly informed by any doctor, nurse or other personnel employed by the hospital that her tubal ligation had failed. The fact of the failure was not recorded in the plaintiff’s chart in clear terms. I think the criticism made by Dr. McKenna where he said the following is well founded.
“This is a case of the “emperor’s clothes” here. Everybody was not facing up to the obvious that this woman had had a failed tubal ligation and that plan B should come into play and that her tubes should be checked or she should be offered sterilisation again. Everybody was hedging around the main issue that there had been a problem”.
I am of the view that the plaintiff was aware that questions had been raised as to whether she was pregnant at the time of the sterilisation or not. She was also advised at the time of her discharge to return for an out patient appointment six weeks thereafter. The reason for that visit was explained to her by Dr. Lynch. Dr. Lynch was not in a position to say to her that the tubal ligation had failed but certainly made it clear that there was a question mark over it.
Dr. Boylan was of opinion that the failed sterilisation should have been brought to the plaintiffs notice in an unequivocal fashion. She should have been left in no doubt about it. In my view he is correct in that. That obligation was not discharged and there was a breach of the duty of care owed to the plaintiff in that regard.
Contributory negligence
The plaintiff did not attend the hospital for her six week check-up as advised. Had she done so I think it likely that matters would have been investigated further and a further pregnancy might well have been avoided. To have ignored the advice given to her by Dr. Lynch to attend for such an appointment, given what had occurred, was imprudent and in my view was also negligent. However no case of contributory negligence was pleaded against the plaintiff nor was it urged on me that her failure to take the advice offered to her on her discharge from the hospital amounted to such. Accordingly no further consideration need be given to this question.
Dr. Dunne
While the plaintiff was pregnant with Danielle she was also attending Dr. Dunne for antenatal care. He told the plaintiff to enquire in the Coombe as to the success or otherwise of her tubal ligation. He was aware of the discrepancy between the scan dates and the date of her last period. He was told that by the plaintiff. The plaintiff also told him that she was pregnant before she had the sterilisation. That information can only have been gleaned by the plaintiff from sources within the hospital. It again underscores the failure to tell her in unequivocal terms that her pregnancy arose subsequent to the sterilisation.
Dr. Dunne did not obtain any letter from the Coombe on the topic and accepted the plaintiff’s account that she was pregnant prior to the sterilisation being carried out.
Following her birth, Danielle had some health problems which involved her being brought back to hospital on occasion. Dr. Dunne was involved in at least one of those episodes which occurred when she was a few weeks old. That brought him into contact with the plaintiff. On the basis of what he was told by the plaintiff and the lack of any communication from the Coombe he was satisfied that she was infertile due to the sterilisation. Consequently he offered her no advice on any form of contraception.
The plaintiff came to him in March, 2001 and asked him to conduct a pregnancy test upon her. He did so. It was positive and her estimated date of delivery was the 5th October, 2001. In fact her seventh child Damien was born prematurely on the 13th August, 2001.
Dr. Dunne was now quite certain that the tubal ligation had failed and following the birth of Damien he advised the plaintiff to have a coil inserted. This was done in December, 2001 and the second tubal ligation was performed by Dr. Boylan on the 5th December, 2002.
Had Dr. Dunne been told of the correct position by the hospital I believe he would have advised the plaintiff on appropriate contraceptive measures. In fact no form of family planning was practiced by the plaintiff following the birth of Danielle and within a short time her pregnancy with Damien occurred.
Vicarious liability
There was a breach of the duty of care owed to the plaintiff by Dr. Murray in carrying out the tubal ligation. A second breach occurred by the hospital personnel failing to clearly tell the plaintiff of the failure of the sterilisation and to offer appropriate treatment to rectify that position.
Is the defendant hospital vicariously liable for any damages which arise as a result of the first breach? The hospital contends that it is not. Dr. Murray’s contract
The defendant referred to many aspects of Dr. Murray’s contract in arguing against vicarious liability. In the result they are not all that relevant on the topic since the defendant contends that ultimately the test to be applied is one of control. For completeness sake I deal hereunder with the terms of the contract.
Dr. Murray entered into a contract for appointment as a consultant at the Coombe Hospital on the 30th March, 1998. The contract is in the form generally referred to as the “consultant’s common contract”.
Under the contract Dr. Murray, as a category one consultant, undertook to work an aggregate of what are described as 33 ‘notional hours’ at the hospital per week. Under clause 6 of the contract he was responsible for producing an agreed schedule specifying how he intended to discharge his full contractual commitment over a period from Monday to Friday. He was obliged to furnish to the hospital such information on the discharge of his scheduled sessions as was necessary and reasonable to establish that he was fulfilling his contractual agreement.
Clause 8.3 of the contract permitted Dr. Murray to conduct private practice in accordance with the terms of a memorandum of agreement appended to the contract.
Clause 5 of the contract dealt with the nature of consultant appointments. It read as follows:
“5.1. For the purpose of this contract, a consultant is defined in the following general terms:
A consultant is a registered medical practitioner in hospital practice who, by reason of his training, skill and experience in a designated speciality, is consulted by other registered medical practitioners and undertakes full clinical responsibility for patients in his care, or that aspect of care on which he has been consulted, without supervision in professional matters by any other person. He will be a person of considerable professional capacity and personal integrity.
5.2. Being a consultant involves continuing responsibility for investigation and for the treatment of patients without supervision in professional matters by any other person. This continuing responsibility for investigation and for treatment of patients is a personal matter between each consultant and each patient in his care and it extends for as long as the patient remains in the consultant’s care. The consultant may discharge this responsibility directly in a personal relationship with his patient, or, in the exercise of his clinical judgment, he may delegate aspects of the patient’s care to other appropriate staff, or he may exercise responsibility concurrently with another doctor or doctors. Notwithstanding this however, the unique position of the consultant in the hospital requires that he carries the continuing responsibility for his patients so long as they remain in his care.
5.3. The employing authority and the consultant acknowledge that the provision of services to patients is a joint task which sets obligations on both parties.” (My emphasis)
The contract is a curious document in many ways and has all the hallmarks of having been drafted by a committee. For example under clause 2 of the agreement it is provided that it is subject to the terms and conditions specified in the contract, its appendices and in the memorandum of agreement appended to it. In that memorandum of agreement one finds reproduced verbatim in clause 2 the definition of consultant contained at clauses 5.1 and 5.2 of the contract itself. There is however an addition in clause 2 of the memorandum in the following terms:
“The agreed objective of the parties to this memorandum is the maintenance of the highest standards in the public hospital system. To this end, the remuneration, general conditions of employment and facilities are intended to attract and retain the major part of the practices of consultants of the highest calibre on the sites of public hospitals.”
Going back to the contract itself, clause 6.1 reads as follows:
“The Coombe Lying-in Hospital recognises your right to the exercise of your independent judgment in clinical and ethical matters (subject to the provisions of clause 8.11). Consultants in the Coombe Lying-in Hospital carry full clinical responsibility for patients under their care within the medical policy as determined from time to time by the Master and approved by the Board of the hospital.”
Clause 9.4 of the contract required Dr. Murray to keep himself indemnified against claims arising from malpractice and negligence in relation to his appointment. The hospital agreed to reimburse him to the extent of 90% in respect of the cost of such indemnity. Clause 2.10 of the memorandum of agreement contains a similar obligation.
The memorandum of agreement also repetitiously stipulates the role of the consultant in terms similar to those contained in clause 5 of the agreement. There are however some additional provisions most particularly contained at paras. 6.4.2. and 6.4.3. of the memorandum of agreement. They read as follows:
“6.4.2. Insofar as the work of the consultant is created by the demand placed on the hospital for the provision of specialist hospital services the consultant can be seen as providing a service to patients on behalf of the hospital (my emphasis). The work arising from him from the hospitals accident and emergency service is an example of the service provided by a consultant to patients on behalf of the hospitals. The work arising for him from general practitioner referrals or from secondary or tertiary referrals to the hospital where the hospital has a defined responsibility for providing such a service, are other examples of services the consultant is asked to provide. (My emphasis). It should be noted that regardless of the mode of referral, once a patient and doctor come into contact, then the relationship is a personal one between the patient and the doctor.
6.4.3. It can be seen from the description of the unique characteristics of consultant work that not alone does he provide some overall service to patients on behalf of the hospital to a population, he may also diagnose and treat patients directly referred to him personally (My emphasis). He may also wish, or be required, to undertake research and developmental work; to participate, as of right, in the selection process for Non Consultant Hospital Doctors; engage in teaching and education; conduct private practice and engage in systematic evaluation or audit of medical work with colleagues.”
The Defendants Submissions and Conclusions on Vicarious Liability.
The defendant submits that the hospital is not vicariously liable for Dr. Murray’s breach of duty by reference to four propositions which are contained in his written submissions. They are
“1. The correct legal criterion by reference to which a determination is made as to whether the hospital is vicariously liable for the consultant is the extent of the control exercised by the hospital over the actions of the consultant.
2. This is so whether or not the consultant was an employee of the hospital under a contract of service or an independent contractor under a contract for services.
3. In any event, the consultant was not in fact an “employee” of the hospital in that he was engaged by the hospital as a consultant obstetrician under the consultants common contract which, as a matter of construction, is a contract for services.
4. The hospital was not “in control” of the actions of the consultant in carrying out the plaintiff’s tubal ligation procedure”.
The defendant asserts that the issue of whether a person is liable in law for the wrongdoing of another is determined by reference to the element of control that is exercised regardless of the nature of the contract which governs those persons.
The defendant refers to the decision of the Supreme Court in Moynihan v. Moynihan [1975] 1 I.R. 192 and the High Court in Holohan v. Minister for Defence and Others (Unreported, Kinlen J. 30th July, 1998). In that case that judge stated that “the basis in modern jurisprudence for vicarious liability is control” and cited with approval an observation contained in the 3rd Edition of McMahon and Binchy on the Law of Torts which said of Moynihan’s case that “the decision is important because it clearly indicates that the control concept is used, not as a justification for vicarious liability, but rather as a test to determine the person for whose actions liability will be imposed on the defendant”. In the written submissions the defendant refers to the current edition of McMahon and Binchy and quotes the following section (paragraph 43.18) where this statement appears “since the Supreme Court decision in Moynihan v. Moynihan however the degree of control which the principal exercises seems to be emerging as the single most important, if not the crucial factor in establishing liability, in Ireland at least”.
The defendants did not quote the following passage which occurs on the next page of that issue of McMahon and Binchy. There the authors say of the control test as follows. “The control test, however, while useful in many cases does not seem to be determinative in all circumstances, for example, in what has become known as “the hospital cases”. Is the health authority or the hospital authority vicariousably liable for the negligence of resident surgeons, anaesthetists, nurses, etc? In these cases there is no question of the employer controlling the way in which the surgeon operates, and if the control test is doggedly adhered to the plaintiff may be denied access to “the deep-pocket”. After much uncertainty the rule seems to be well accepted that medical staff in the fulltime service of hospitals are employees for the purposes of vicarious liability. That this has been accepted in Ireland can be seen from such cases as O’Donovan v. Cork County Council. Here in an action against the defendant council for the alleged negligence of a surgeon and an anaesthetist the defendant council, while denying negligence, did not even contest the proposition that it would be vicariously liable if negligence were proved on the part of the surgeon or the anaesthetist. The remnants of the ancien regime have not disappeared completely, however, since Irish health services still retain distinctions between public and private patients, which impact on the issue of vicarious liability. In Bolton v. Blackrock Clinic Limited, the plaintiff unsuccessfully sued a cardiothoracic surgeon and a consultant thoracic physician for negligence in her treatment. She also sued the hospital where these specialists worked, on the basis of direct and vicarious liability. Having dismissed the plaintiff’s claim against the specialists, Geogehgan J. observed “that being so, there cannot be any question of vicarious liability of the hospital for medical negligence. Indeed at any rate the plaintiff was a private patient of the doctors in a private hospital, the question of vicarious liability may not arise”.
In my view the authors of McMahon and Binchy are correct in identifying that the control test is not of universal application and that hospital cases are to a considerable extent sui generis.
This view is not peculiar to Ireland. Later in the defendant’s written submissions there is a quotation from the 19th Edition of Clerk and Lindsell on Torts in the chapter dealing with vicarious liability. The defendant quotes the following: “Visiting consultants and surgeons, on the other hand, have been said not to be the employees of the hospital authorities, but, however this may be, the development of a different approach to the liability of hospital authorities for negligence occurring in the course of the treatment of their patients has probably deprived the point of practical significance. In many of the cases the tendency has been to treat the question of the hospital authorities liability as raising issues of primary, as well as vicarious responsibility. The hospital itself, it is said, is under a duty to its patients which it does not discharge simply by delegating its performance to someone else, no matter whether the delegation be to an employee or an independent contractor. On this basis it makes no difference whether or not a visiting consultant is a servant. There is some support for this view in Wilshire v. Essex Area Health Authority where Brown Wilkinson VC stated (obiter):-
“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.
In citing the above quotation from Clerk and Lindsell the defendant failed to refer to the preceding paragraph from the same work in which the following is to be found “it was formerly thought that hospital authorities could not be liable vicariously for the negligence of a member of their medical staff, whether professionally qualified or not, if the negligence occurred in the course of an operation or treatment calling for the exercise of medical skill and knowledge. As the element of control over the method of working was lacking, according to the traditional view it followed that they could not be regarded as the employees of the hospital authority. In modern case law however, a different view has prevailed and such professionally qualified persons as radiographers, house surgeons, full time assistant medical officers and staff anaesthetists have been held to be employees of the hospital authority for the purposes of vicarious liability. Indeed it is submitted that any member of the full time staff of the hospital should be regarded as an employee of the hospital authority”.
These passages from both Irish and English textbooks appear to me to be fully justified by reference to the case law cited in them and are correct. I do not propose to add to an already lengthy judgment by citing from all of the cases cited. However a number of quotations from two of the cases in my view accurately describe the position.
In Cassidy v. Ministry of Health (1951) 2 KB 343 the Court of Appeal, in allowing the appeal, held that a hospital authority is liable for the negligence of doctors and surgeons employed by the authority under a contract of service arising in the course of the performance of their professional duties. The decision to allow the appeal was a unanimous one. However Denning LJ (as he then was) went further than the other two Lords Justices where he said (at p. 362):-
“It has been said, however, by no less an authority than Goddard LJ in Golds case (1942 2 KB 293) that the liability for doctors on the permanent staff depends, on “whether there is a contract of service and that must depend on the facts of any particular case”. I venture to take a different view. I think it depends on this: Who employs the doctor or surgeon – is it the patient or the hospital authorities? If the patient himself selects and employs the doctor or surgeon, as in Hillyer’s case, the hospital authorities are of course not liable for his negligence, because he is not employed by them. But where the doctor or surgeon, be he a consultant or not, is employed and paid, not by the patient, but by the hospital authorities, I am of opinion that the hospital authorities are liable for his negligence in treating the patient. It does not depend on whether the contract under which he was employed was a contract of service or a contract for services. That is a fine distinction which is sometimes of importance; but not in cases such as the present, where the hospital authorities are themselves under a duty to use care in treating the patient.
I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services”.
At the conclusion of his judgment Denning LJ said “turning now to the facts in this case, this is the position: the hospital authorities accepted the plaintiff as a patient for treatment, and it was their duty to treat him with reasonable care. They selected, employed, and paid all the surgeons and nurses who looked after him. He had no say in their selection at all. If those surgeons and nurses did not treat him with proper care and skill, then the hospital authorities must answer for it, for it means that they themselves did not perform their duty to him. I decline to enter into the question whether any of the surgeons were employed only under a contract for services, as distinct from a contract of service. The evidence is meagre enough in all conscience on that point. But the liability of the hospital authorities should not, and does not, depend on nice considerations of that sort. The plaintiff knew nothing of the terms on which they employed their staff; all he knew was that he was treated in the hospital by people whom the hospital authorities appointed; and the hospital authorities must be answerable for the way in which he was treated”.
Denning LJ may have been somewhat ahead of his time in expressing these views. Neither of his colleagues on the Court of Appeal went so far since they decided that the hospital authority was liable in respect of doctors who were employed under a contract of service. However the views of Denning LJ in my view are correct and are applicable in the instant case.
In Roe v. Minister of Health (1954) 2 QB 66 the Court of Appeal again had to consider the question of vicarious liability. All three judges delivered separate judgments to the same effect in that they dismissed the appeal. In his judgment Somervell LJ regarded the question of vicarious liability as being settled by reference to whether or not the doctor was part of the permanent staff of the hospital. More to the point, however, for this case is the judgment delivered by Morris LJ.
He said (at p. 90) “If a patient in 1947 entered a voluntary hospital for an operation it might be that if the operation was to be performed by a visiting surgeon the hospital would not undertake, so far as concerned the actual surgery itself, to do more than to make the necessary arrangements to secure the services of a skilled and competent surgeon. The facts and features of each particular case would require investigation. But a hospital might in any event have undertaken to provide all the necessary facilities and equipment for the operation and the obligation of nursing and also the obligation of anaesthetizing a patient for his operation. The question in the present case is whether the hospital undertook these obligations. In my judgment they did. There can be no doubt but that they undertook to nurse the plaintiffs and to provide the necessary facilities and equipment for the operations. I think they further undertook to anaesthetise the plaintiff. The arrangements made between the hospital and Dr. Pooler and Dr. Graham, together with the arrangements by which a resident anaesthetist was employed, had the result that the hospital provided a constantly available anaesthetic service to cover all types of cases.
It is true that Dr. Pooler and Dr. Graham could arrange between themselves as to when they would respectively be on duty at the hospital: and each was free to do private work. But these facts do not negative the view, to which all the circumstances point, that the hospital was assuming the obligation of anaesthetising the plaintiffs for their operations. I consider that the anaesthetists were members of the “organisation” of the hospital: they were members of the staff engaged by the hospital to do what the hospital itself was undertaking to do. The work which Dr. Graham was employed by the hospital to do was work of a highly skilled and specialised nature, but this fact does not avoid the application of the rule of respondeat superior.”
The views of the members of the Court of Appeal in these two cases, expressed as they were over 50 years ago, appear to be correct to this day and of application in the instant case.
The plaintiff was referred not to a particular surgeon but to the Coombe Hospital. She had no say in the choice of who would carry out her sterilisation. It was done by Dr. Murray. He was part of the “organisation” or permanent staff of the hospital. The performance of the operation was part of a service provided by the hospital to the plaintiff. Dr. Murray was the person in the hospital’s organisation via whom that service was provided.
In these circumstances it matters not whether Dr. Murray was employed under a contract of service or a contract for services. In my view having regard to the principles enunciated in both Cassidy and Roe’s case the hospital here is liable for any want of care on the part of Dr. Murray.
Damages for pregnancy, birth and second sterilisation
The defendant concedes that in the event of a finding of negligence the plaintiff is entitled to damages for the pain suffering and inconvenience of pregnancy and childbirth and of course for having to have the sterilisation repeated. Special damages for extra medical expenses are also conceded. These concessions are made by reference to the views expressed by the majority of the members of the House of Lords in McFarlane v. Tayside Health Board (2000) 2 AC 59.
In the light of these concessions I am not called upon to consider whether as a matter of principle it is open to the plaintiff to recover damages arising from her pregnancy and the births of Danielle and Damien.
In McFarlane’s case Lord Gill, the Lord Ordinary (as he then was) considered that pregnancy could not be equiparated with a physical injury. Even if it could, he held that it was not an injury for which damages are recoverable. The existence of a child and the mother’s happiness derived from it could not be ignored and they outweighed the pain and discomfort.
He held that damages were not recoverable as a matter of principle. That was not a view shared by the Inner House of the Court of Session or the majority in the House of Lords. Whether Lord Gill’s view is to be preferred to that of the other judges is a matter which I am not called upon to decide in the light of the concession which the defendants make as to the entitlement of the plaintiff to damages. I will assess these damages later.
The largest part of the plaintiff’s claim in these proceedings is in respect of the cost of rearing the two children born subsequent to her first sterilisation. That sum has been agreed at €27,000 to date and €354,678.00 for the future. The question to which I must now turn my attention is as to whether the plaintiff is entitled to recover such damages.
Damages for rearing Danielle and Damien
In McFarlane’s case Lord Gill disallowed the claim for damages for the costs of rearing the child that was born following the failed vasectomy of the father. He said:
“I am of the opinion that this case should be decided on the principle that the privilege of being a parent is immeasurable in money terms; that the benefits of parenthood transcend any patrimonial loss, if it may be so regarded, that the parents may incur in consequence of their child’s existence; and that therefore the pursuers in a case such as this cannot be said to be in an overall position of loss”.
In the present case the plaintiff has been at pains throughout her case to make it clear that both Danielle and Damien were welcomed into her family by both parents and their siblings. The parents have since separated but Danielle and Damien continue to be “loved, cherished and supported by both of them. Their children are a source of joy and satisfaction to them. They, no more than any other parents, do not assess their relationship with Danielle and Damien in terms of profit and loss. They do not seek compensation from the courts in respect of any of the intangible burdens in the upbringing of their children. They accept those burdens as do any parents gladly”. Given this acknowledgement of the joy and satisfaction that these two children have brought to her there is a certain incongruity in the plaintiff seeking to recover the costs of rearing them from the defendant. I think there is much to be said for the observations of Lord Gill in this regard.
Lord Gill’s decision was appealed to the Inner House. The appeal was allowed. The case then went to the House of Lords which restored the conclusion of Lord Gill. Their Lordship’s House held unanimously that a negligent doctor is not required to meet the cost of bringing up a healthy child born in circumstances such as obtain in the instant case. In reaching that conclusion the legal reasoning and the language used by the five Law Lords differed. But in essence the conclusion which was reached was that fairness and reasonableness do not require the damages payable by a negligent doctor should extend so far as to require him to pay for the cost of rearing an unintended healthy child.
That view expressed by the House of Lords is one which has found favour in the majority of the common law countries where this issue has arisen.
The speeches of their Lordships in McFarlane’s case contain a detailed analysis of all of the previous decisions in England, Wales, Scotland, the Commonwealth countries, other common law jurisdiction and a number of civil jurisdictions.
In his speech Lord Steyn traces the history of such claims in England beginning with Udale v. Bloomsbury Area Health Authority [1983] I.W.L.R. where Jupp J. rejected a claim for the cost of bringing up an unwanted child. That Judge observed that the birth of a child is “a blessing and an occasion for rejoicing”. In 1986 Peter Pain J. in Thake v. Maurice [1986] Q. B. 644 declined to follow Udale’s case and allowed such a claim. He observed that social policy which permitted sterilisation implied that it was generally recognised that the birth of a healthy child was not always a blessing. These divergent approaches were considered by the Court of Appeal in Emeh v. Kensington and Chelsea and Westminister Area Health Authority [1985] 1 Q.B. 1012. The unwanted child in Emeh’s case had been born with congenital disabilities. The defendants argued that damages should be limited to the extra costs of upbringing attributable to the disabilities. Full costs were allowed but in what was described as a ‘modest sum of £6,000’.
It is clear that the decision in Emeh’s case was one which created unease amongst judges. As is recorded by Lord Steyn that was memorably articulated in Jones v. Berkshire Area Health Authority (Unreported, 2nd July, 1986) another unwanted pregnancy case where Ognall J. said:
“I pause only to observe that, speaking purely personally, it remains a matter of surprise to me that the law acknowledges an entitlement in a mother to claim damages for the blessing of a healthy child. Certain it is that those who are afflicted with a handicapped child or have longed desperately to have a child at all and are denied that good fortune, would regard an award for this sort of contingency with a measure of astonishment. But there it is: that is the law”.
Since the decision of the House of Lords in McFarlane’s case it is no longer the law in England and Wales. Furthermore the decision in McFarlane was subsequently considered by a differently constituted judicial committee of the House of Lords in Rees v. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and was not disturbed.
That the view of the House of Lords in McFarlane is not out of kilter with other jurisdictions can be ascertained by reference to the following passage from the speech of Lord Steyn:
“In the United States the overwhelming majority of state courts do not allow recovery of the costs of bringing up a healthy child: see the review in Johnson v. University Hospital of Cleveland, 540 N.E. 2d 1370. In Canada the trend is against such claims: see Kealey v. Berezowski [1996] 136 D.L.R. (4th) 708 which contains a review. By a majority the New South Wales Court of Appeal in CES v. Superclinics (Australia) Pty. Ltd. 38 N.S.W.L.R 47 held that the plaintiff had, through the negligence of the defendants lost the opportunity to have an abortion which would not necessarily have been unlawful. The court ordered a retrial on the issue as to whether an abortion would have been unlawful. Kirby P. considered that damages could be awarded for the cost of bringing up the child. Priestly J.A. was prepared to allow a limited recovery for “wrongful birth” but not for child rearing expenses and Meagher J. A. agreed with Priestly J. A. on this point, though in a dissenting opinion he concluded that public policy was an absolute bar to the award of damages in “wrongful birth” cases. In New Zealand there is a no fault compensation scheme. It is, however, instructive to note that the Accident and Compensation Authority held that there was no causal connection between the medical error and the cost of raising the child. In Germany the Constitutional Court has ruled that such a claim is unconstitutional in as much as it is subversive of the dignity of the child. But the Bundesgerichtshof has rejected this view and permits recovery of the costs of bringing up the child. The Federal Court observed that compensation not only has no detrimental effect on this child, but can be beneficial to it. In France The Cour de Cassation has ruled that:
“Whereas the existence of the child she has conceived cannot in itself constitute for the mother a loss legally justifying compensation, even if the birth occurred after an unsuccessful intervention intended to terminate the pregnancy”.
Such claims are not allowed. From this comparative survey I deduce that claims by parents for full compensation for the financial consequences of the birth of a healthy child have sometimes been allowed. It may be that the major theme in such cases is that one is simply dealing with an ordinary tort case in which there are no factors negativing liability in delict. Considerations of corrective justice as between the negligent surgeon and the parents were dominant in such decisions. In an overview one would have to say that more often such claims are not allowed. The grounds for decision are diverse. Sometimes it is said that there was no personal injury, a lack of forseeability of the costs of bringing up the child, no causative link between the breach of duty and the birth of a healthy child, or no loss since the joys of having a healthy child always outweigh the financial losses. Sometimes the idea that the couple could have avoided the financial costs of bringing up the unwanted child by abortion or adoption has influenced decisions. Policy considerations undoubtedly played a role in decisions denying a remedy for the cost of bringing up an unwanted child. My Lords, the discipline of comparative law does not aim at a poll of the solutions adopted in different countries. It has the different and inestimable value of sharpening our focus on the weight of competing considerations. And it reminds us that the law is part of the world of competing ideas markedly influenced by cultural differences. Thus Fleming has demonstrated that it may be of relevance, depending on the context, to know whether the particular state has an effective social security safety net”.
Whilst the five Law Lords in McFarlane came to the same conclusion they did so for different reasons. I think there is little to be gleaned by quoting large extracts from their individual speeches. Rather I should attempt to summarise the rationale for the decision. In the case of Lords Slynn, Steyn and Hope they took the view that a claim such as the present one was neither fair or just or reasonable. In the case of Lord Clyde considerations of distributive justice appeared to weigh heavily in leading him to his conclusion. Lord Millett’s view was rather similar to that expressed at first instance by Lord Gill to the effect that the advantages and disadvantages of parenthood are so bound up together that the benefits should be regarded as outweighing any loss. All of these appear to me to boil down to the view which I have already expressed in this judgment to the effect that their Lordships took the view that such a claim was neither fair or just or reasonable.
Indeed I am fortified in this expression of opinion by reference to the later case of Rees v. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309.
That was a case which resulted in seven Law Lords being assembled since they were asked to reconsider McFarlane’s case. A number of their Lordships were common to both cases. By a majority the decision in McFarlane was applied. In not disturbing McFarlane the Court considered developments which had taken place in the meantime in other countries and in particular the Australian case of Cattanach v. Melchior [2003] H.C.A. 38.
Perhaps the most useful speech from those in the majority in the Rees case is that of Lord Bingham of Cornhill. In reviewing the decision in McFarlane he said:
“The five members of the House who gave judgment in McFarlane adopted different approaches and gave different reasons for adopting the third solution listed in paragraph (3) above (i.e. that no damages may be recovered where the child is born healthy and without disability or impairment). But it seems to me clear that all of them were moved to adopt it for reasons of policy (legal, not public, policy). This is not a criticism. As Lord Denning M. R. said in Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373, 397:
“This case is entirely novel. Never before has a claim been made against a council or its surveyor for negligence in passing a house. The case itself can be brought within the words of Lord Atkin in Donoghue v. Stevenson: but it is a question whether we should apply them here. In Dorset Yacht Co. Limited v. Home Office [1970] A.C.1004, Lord Reid said, at p. 1023, that the words of Lord Atkin expressed a principle which ought to apply in general “unless there is some justification or valid explanation for its exclusion”. So did Lord Pearson at p. 1054. But Lord Diplock spoke differently. He said it was a guide but not a principle of universal application (p. 1060). It seems to me that it is a question of policy which we, as judges, have to decide. The time has come when, in cases of new import, we should decide them in accordance with the reason of the thing.
In previous times, when faced with a new problem, the judges have not openly asked themselves the question: what is the best policy for the law to adopt? But the question has been there in the background. It has been concealed behind such questions as “was the defendant under any duty to the plaintiff? Was the relationship between them sufficiently proximate? Was the injury direct or indirect? Was it foreseeable, or not? Was it too remote? and so forth.
Nowadays we direct ourselves to considerations of policy. In Rondel v. Worsley [1969] 1 AC 191, we thought that if advocates were liable to be sued for negligence they would be hampered in carrying out their duties. In Dorset Yacht Co. Limited v. Home Office [1970] AC 1004, we thought that the Home Office ought to pay for damage done by escaping Borstal boys, if the staff was negligent, but we confined it to damage done in the immediate vicinity. In S.C.M. (United Kingdom) Limited v. W.J. Whittall and Son Limited [1971] 1 Q.B. 337, some of us thought that economic loss ought not to be put on one pair of shoulders, but spread among all the sufferers. In Launchbury v. Morgans [1971] 2 Q.B. 245, we thought that as the owner of the family car was insured she should bear the loss. In short, we look at the relationship of the parties: and then say, as a matter of policy, on whom the loss should fall”.
The policy considerations underpinning the judgments of the House were, as I read them, an unwillingness to regard a child, (even if unwanted) as a financial liability and nothing else, a recognition that the rewards of parenthood (even if involuntary) may or may not bring cannot be quantified and a sense that to award potentially very large sums of damages to the parents of a normal and healthy child against a national health service always in need of funds to meet pressing demands would rightly offend the community sense of how public resources should be allocated”.
While this latter observation may have little application here nonetheless it seems to me that the question which I have to ask is one of principle or, if one prefers, policy.
Principle/Policy in Irish Law
The decision in the Supreme Court in Fletcher v. The Commissioners for Public Works [2003] 1 IR 465 makes it plain that it is proper to exclude an award of damages in certain circumstances on the grounds of policy. That case raised a question which had not been considered in this jurisdiction before. It was whether, and if so, to what extent and subject to what limitations, an action might lie in negligence where the sole injury for which damages were sought to be recovered was a psychiatric condition resulting from fear of contracting an illness in the future as a consequence of alleged negligent acts and omissions. In this court O’Neill J. awarded damages to the plaintiff. His decision was reversed by a unanimous Supreme Court with two written judgments being delivered. The first was that of Keane C. J. and the second was by Geoghegan J.
Both judgments recognised that a question of policy fell to be decided by the court. Indeed in his judgment Geoghegan J. mirrored to some extent the observations of Lord Denning M. R. in Dutton’s case, the relevant extract from which is contained in the quotation from the speech of Lord Bingham in the Rees case which I have already reproduced.
Geoghegan J. said:
“It is against this background of the case law, which I have reviewed, that this court must decide, as a matter of policy and of reasonableness, whether claims for damages for psychiatric injury only and resulting from fear of asbestos related diseases of a degree which is objectively irrational are recoverable. Traditionally, courts do not always use the actual word “policy”. They may attempt to draw artificial limits to what can be regarded as being reasonably foreseeable or they may, in considering proximity or other questions in relation to the existence of a duty of care, invoke the concept of reasonableness so that a duty of care will not in fact be imposed if the court considers it unreasonable to do so. The third control mechanism which the court may impose is in relation to particular heads of damage or finally, they may expressly deny a claim on grounds of public policy”.
Keane C. J. and Geoghegan J. both cite with approval observations from two different members of the House of Lords in the case of White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455. Keane C. J. cites the views of Lord Steyn whilst Geoghegan J. those of Lord Hoffmann.
Having quoted from Lord Hoffmann’s speech Geoghegan J. said that he agreed “that pragmatic control mechanisms must be applied in actions for pure psychiatric damage and, in many instances, even in the interests of distributive justice”.
These observations of the Supreme Court appear to entitle me to decide on the recoverability of damages as a matter of principle or legal policy since the question has never heretofore been considered by courts in this jurisdiction. In making that decision the court is entitled to have regard to concepts of reasonableness and distributive justice.
Decision on costs of upbringing
I conclude that it is not open to the plaintiff to recover damages for the cost of upbringing the two healthy children which she bore subsequent to her failed sterilisation. I do not believe that the law in this jurisdiction should be extended so as to allow the recovery of such damages.
I am persuaded that the conclusions reached by the House of Lords in both in the McFarlane and Rees cases are correct. They are to be preferred to the majority view expressed in the Australian case of Cattanach v. Melchior. I have not cited particular passages from the judgments in that case since I share the view of Lord Millett (as expressed in Rees) that “despite the diversity of opinion, the judgments cover familiar ground and contribute no new insight”.
I am of opinion that it would not be fair or reasonable to visit a doctor who negligently performs a sterilisation procedure with the cost of rearing a healthy child that is conceived and born subsequent to the failure of such procedure. Even if one disagrees with this approach the refusal to award damages in circumstances such as this can be equally justified by considerations of distributive justice as particularly exemplified in the speech of Lord Clyde. Alternatively the view can be justified by reference to the views of Lord Gill at first instance and Lord Millett in the House of Lords to the effect that the benefits of a healthy child outweigh any loss incurred in rearing the child. Whilst the parties here have agreed the quantum of damages a decision in favour of the claim made would open the door to a limitless range of claims related to every aspect of family life.
I obtain some comfort that in arriving at this decision, the court is in harmony with the majority of decisions in the common law world. The vast majority of state courts in the United States, the courts of England and Wales, Scotland and a number of civil law courts are of like mind.
I am also of opinion that the conclusion which I have arrived at blends more harmoniously with the constitutional order which obtains in this jurisdiction then would a decision to the contrary. The value which the Constitution places upon the family, the dignity and protection which it affords to human life are matters which are, in my view, better served by a decision to deny rather than allow damages of the type claimed.
Accordingly I refuse to award damages in respect of the costs of rearing Danielle and Damien.
Assessment of Damages
There is no doubt but that the plaintiff is entitled to recover damages for having to undergo a second tubal ligation. That was carried out on the 5th December, 2002. The plaintiff has no recollection of it. It was carried out by Dr. Boylan and was quite straightforward. It did not involve overnight hospitalisation and the plaintiff had no complaints thereafter. She must also have had the usual anxiety that accompanies any surgical procedure and is entitled to be compensated for that. It was however a minor procedure carried out speedily and uneventfully. I award the sum of €10,000 damages to compensate for having to undergo this second operation.
As I have already pointed out, the defendant has conceded that in the event of a finding of negligence the plaintiff is entitled to damages for the pain, suffering and inconvenience of pregnancy and childbirth together with any special damages for extra medical expenses involved. The question of principle as to whether there is in law an entitlement to such damages will have to await another case where a concession such as the one made in this case is not forthcoming. It is sufficient to record that there is no unanimity of judicial opinion throughout the common law world on the topic.
Pregnancy is not an illness or a disease. It does cause pain, sickness and distress. It is an entirely natural process. In the present case it resulted in the births of two unique human beings, Danielle and Damien, who are both healthy. Danielle was born one month prior to term. She did have some breathing difficulties and some infections thereafter but they had all resolved within a year and she is a healthy child. Damien was born seven and a half weeks prior to term. He is also healthy.
I accept the plaintiff’s evidence that both pregnancies had attendant difficulties over and above what might be regarded as the norm. In the case of Danielle the plaintiff had to wear a support strap which was found to be ineffective and so for six to eight weeks prior to and subsequent to her confinement was on crutches. In the case of her pregnancy with Damien she had similar difficulties and was on crutches for three weeks prior to his birth. She had to remain on crutches for six to eight weeks subsequent thereto. Danielle’s pregnancy was the longer of the two and the more difficult from the plaintiff’s point of view.
In assessing damages I also take account of the shock and emotional distress caused to the plaintiff when she discovered that she was pregnant with these two children. She did not want either pregnancy and would not have had them but for the defendants breaches of duty.
I assess damages in respect of the pregnancy and birth of Danielle at €45,000. In respect of the pregnancy and birth of Damien I award €35,000.
Result
I award the plaintiff a total of €90,000 damages in respect of the second tubal ligation and the pregnancy and birth of Danielle and Damien. I dismiss the claim for agreed damages in the total sum of €381,678 for the upbringing of the two children.
Hayes -v- Minister for Finance
[2007] IESC 8 (23 February 2007)
URL: http://www.bailii.org/ie/cases/IESC/2007/S8.html
Cite as: [2007] 3 IR 190, [2007] 1 ILRM 442, [2007] IESC 8
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Judgment Title: Hayes -v- Minister for Finance
Neutral Citation: [2007] IESC 8
Supreme Court Record Number: 124/04
High Court Record Number: 1996 7928p
Date of Delivery: 23 February 2007
Court: Supreme Court
Composition of Court: Hardiman J., Kearns J., Finnegan, P.
Judgment by: Kearns J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Kearns J.
Appeal allowed – set aside High Court Order
Hardiman J., Finnegan J.
Outcome: Allow And Set Aside
JUDGMENT of Mr. Justice Kearns delivered the 23rd day of February, 2007
The plaintiff is a young woman who suffered multiple severe personal injuries in a road traffic accident which occurred on the 6th day of August, 1994 at or near Kilfeakle in the County of Tipperary. The accident occurred shortly before 9 p.m. when road and weather conditions were perfect. On that occasion the plaintiff was a pillion passenger on a 500 cc motorcycle driven by her then boyfriend Ian Lynch when at a bend in the road the motorcycle crossed a continuous white line on to its incorrect side. There was at that time a motor car driven by Mr. James Kearns which was coming in the opposite direction. Mr. Kearns observed that the motorcycle was approaching at speed and was out on the white line. He slowed and pulled into the left at the entrance to a farm house and was all but stopped when the motorcycle hit the front of his car. This was a forceful impact and both the motor cycle driver and pillion passenger were thrown some considerable distance beyond the car. It is quite clear that the driving of Mr. Kearns in no way caused or contributed to either the accident or injuries sustained by either the driver of the motorcycle or the plaintiff pillion passenger.
No claim of any sort was brought against Mr. Kearns, but the defendant/appellant was sued because it is alleged that the motorbike driven by Ian Lynch was at the time being chased at high speed by a garda vehicle “which caused the motorcyclist to go out of control and to panic as a result of being chased, being followed and being pursued” so that it is alleged that the accident complained of was caused or contributed to by the negligence and breach of statutory duty of the defendant, his servants or agents.
The matter came on for hearing in the High Court (Finlay Geoghegan, J.) sitting in Limerick, and at the conclusion of the hearing the learned trial judge in an ex tempore judgment concluded that the cause of the speed at which the motorbike was being driven at the time of the accident was the pursuit of the bike by the garda vehicle.
Before considering the judgment of the learned trial judge in more detail, it is necessary to set out the background circumstances which culminated in the accident at Kilfeakle.
On the evening in question, two members of the Thurles Garda Station, Garda Anne Meehan and Sergeant (then Garda) Michael Dempsey, had set up a radar speed check on the Urlingford-Cashel road. They were sitting in an Opel Vectra standard issue patrol car about a mile and a half outside Urlingford and facing towards Urlingford. The vehicle was in plain view of traffic coming from Urlingford once that traffic crested a hill. Garda Meehan was sitting behind the wheel of the patrol car and Sergeant Dempsey had the radar gun in his hand. They first heard and then saw a motorbike approaching at speed from Urlingford. Garda Dempsey noted the speed of the motorbike on the radar gun to be 80 miles per hour. The motorcycle did not stop at the speed check and in fact increased his speed. Garda Meehan turned the patrol car and followed the motorbike. While this was happening, Sergeant Dempsey radioed back to the communications control centre in Thurles seeking assistance and stating that the bike had failed to stop. They were informed that a garda presence would come to Horse and Jockey which was some six or seven miles down the road. Sergeant Dempsey also radioed ahead to Cashel for the purpose of setting up a road-block or check-point there. In evidence Garda Meehan stated it took them some time to get the bike back into view again because they had started from a stationary position. The motorcycle had anything up to half a mile of a start on the garda vehicle. The blue flashing light was operating on the garda vehicle, but the siren was inoperative at the time. While pursuing the bike, the garda vehicle at no stage caught up with it. In evidence, Garda Meehan stated she had no idea who was on the bike, beyond noting there were two people who had helmets and black leather clothing. They had received no information to suggest that those on the motorcycle had been involved in any criminal conduct, though Garda Meehan stated in evidence that her “gut instinct” was that some serious crime might have taken place and that it was highly unusual for a speeding vehicle not to stop at a speed trap.
No garda presence came to Horse and Jockey, but a garda road-block was set up on the Dublin side of Cashel. However, Garda Meehan stated that the motorcycle swerved to the right of the garda patrol car which constituted the road-block, driving completely on the incorrect side of the roadway for that purpose, then swerved back onto its correct side of the main roadway through Cashel. As it passed the road-block the pillion passenger was observed to throw both hands in the air, suggesting to the pursuing gardaí that the pillion passenger wanted at that point to get off the bike.
The garda vehicle followed in the same manner and pursued the motorcycle through the town of Cashel, though it never got close enough to permit the gardaí to identify the registration number of the bike. At the end of the town the motorcycle made a right turn and then a left turn onto the Tipperary/Limerick road. Mr Lynch and the plaintiff had earlier travelled on the bike from Limerick to Kilkenny and always intended to take this route when returning to Limerick. Once the bike went out on to the Tipperary road Garda Dempsey radioed ahead for a check-point to be set up at the next town which was Tipperary.
Shortly after leaving Cashel, the gardaí lost sight of the motorbike because their car came in behind an articulated truck and they were unable to overtake the truck for quite some distance. They eventually succeeded in overtaking it and, coming out of Golden and from an elevated position, they caught sight of the tail light of the bike going around a corner at a time when the bike was about one mile ahead of them. Not long after that, they came around a left hand bend and observed that the motorcycle had crashed into the front of a vehicle travelling from the opposite direction.
It seems clear from the evidence that the road deteriorated significantly once the vehicles left Cashel. The vehicles were no longer on a major road, but rather on a minor road. The only evidence as to the speed of the garda vehicle on the Tipperary side of Cashel was that given by Sergeant Dempsey, who stated that the maximum speed of the garda vehicle would have been 50 miles per hour. He stated that the road was twisty and windy and was not a road upon which one could travel safely at speed. The gardaí gave evidence that they were content to tail the vehicle at this stage as they knew a road block would await the motor cycle at Tipperary.
Having heard the various witnesses, the learned trial judge made the following findings of fact:-
1) “That the motorcycle passed the initial speed trap at 80 miles per hour
2) That both gardaí were then sitting inside the car and that no signal was given to the bike to stop
3) That the gardaí had not received any information on the radio of any crime committed in the area
4) That having turned to commence the pursuit of the motorcycle, the garda members realised very quickly that the bike was increasing speed and attempting to drive away from them.”
The learned trial judged also separately found the following facts:-
1) “The gardaí followed the bike for the purpose of apprehending the driver of the bike
2) That it very quickly became clear to the gardaí that the bike was not going to stop and was increasing speed
3) As the bike increased speed, the garda car increased speed and continued in pursuit of the bike and drove at speeds of at least 100 miles per hour on the Urlingford – Cashel stretch of the road
4) That the gardaí started approximately one mile behind the bike and got to within 50 and 200 yards of the bike when coming into Cashel
5) That the garda car pursued the bike through Cashel by driving as the bike had done on the hard shoulder on the far side of the oncoming lane, circling a garda patrol car which was stopped on the oncoming lane and returning to its correct side of the road as they went down the town of Cashel
6) That the garda car must have been within approximately 150 yards of the bike as the bike turned at the top of Cashel, first right and then immediately left onto the Tipperary road. The undisputed evidence of Garda McDonnell, the garda from Cashel, is that one needed to be within this distance to have visibility of a bike going on to the Tipperary road.
7) That the garda car pursued the bike in visible proximity for approximately one mile out of Cashel on the Tipperary road towards Golden.
8) That the garda car was continuing to pursue the bike after Cashel but was held up by traffic between Cashel and Golden.
9) That the garda car was sighted by Mr Lynch as he left Cashel, and he was aware that the garda car was pursuing him on the road out of Cashel.
10) That the garda car was visible to the Plaintiff as a pillion passenger at one further point on the road after Golden.
11) That throughout the chase or pursuit, the garda car had its blue light flashing and headlights on.
12) That the garda car arrived one to one-and-a-half minutes after the accident occurred.”
These primary findings of fact are not challenged by the appellant in this appeal. The appellant’s case is that there was no breach of any duty of care by the appellant towards the plaintiff and that incorrect inferences were drawn from the primary findings of fact by the learned trial judge.
Having heard the evidence in the case the trial judge decided that the issues she had to resolve were:-
“(1) Was the chase or pursuit being given by the Garda to Mr Lynch’s bike the cause of the speed at which he was travelling at the time of the accident?
(2) If so, were the Garda in breach of a duty of care which they owed to the Plaintiff in undertaking or pursuing this chase or pursuit?”
In relation to the first of these questions, the learned trial judge concluded that “a cause of the speed at which the bike was being driven at the time of the accident was the pursuit of the bike by the garda car.”
In relation to the second question, the learned trial judge concluded as follows:-
“On the facts of this case, the offence of which the gardaí were aware, even on their account of what happened as the bike passed them, was a traffic offence. There is no evidence of any more serious offence. On those facts I have concluded that the gardaí in commencing a pursuit of a bike which was already passing them on the main Dublin-Cork road already travelling at 80 miles an hour and continuing that pursuit which included the gardaí driving on the Dublin-Cork road at a speed of 100 miles an hour was in breach of duty of care which they owed, inter alia, to the plaintiff as the pillion passenger. I further conclude that the driving of the car in the manner which it is acknowledged as was done through the town of Cashel and the continued pursuit out the narrow Tipperary road was also in breach of the duty of care owed. For these reasons I find the defendant liable to the plaintiff in these proceedings.”
Relevant legal considerations
The State no longer enjoys immunity from tortious liability in this jurisdiction. That historic anomaly was removed in the case of the negligent driving of a mechanically propelled vehicle belonging to the State by Section 170 of the Road Traffic Act, 1933 which was replaced by Section 116 of the Road Traffic Act, 1961 and later by Section 59 of the Civil Liability Act, 1961 which provides:-
“ 1) Where a wrong is committed by the use of a mechanically propelled vehicle belonging to the State, the Minister for Finance shall be liable to an action for damages in respect of damage resulting from the wrong in like manner as if the Minister for Finance were the owner of the vehicle, and the person using the vehicle shall, for the purposes of such liability, be deemed to be the servant of the Minister for Finance in so far as such person was acting in the course of his duty or employment.”
There was no dispute between the parties at trial or on the hearing of this appeal as to the existence of a duty of care on the part of the driver of a police vehicle to other road users, including a driver who may have been guilty of some sort of criminal behaviour and in respect of whom a pursuit is undertaken. In this regard counsel for the plaintiff in opening the case at trial suggested that the relevant duty of care was that outlined in the decision of the Court of Appeal in Marshall v. Osmond and another [1983] 1 QB 1034 in which Sir John Donaldson M.R described the duty owed by a police officer in pursuit of a suspect in the following terms at p. 1038:-
“I think that the duty owed by a police officer to the suspect is, as Mr. Spokes, on behalf of the plaintiff, has contended, the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in all the circumstances. The vital words in that proposition of law are ‘in all the circumstances’, and of course one of the circumstances was that the plaintiff bore all the appearance of having been somebody engaged in a criminal activity for which there was a power of arrest.”
Counsel also made references to various provisions of the Garda Síochána Code which, while not imposing any strict legal liability on the gardaí, were relied upon as being indicative of the nature of the duty of care. The provisions contained at par 35.39 (2) and (3) of the Code are particularly relevant to the facts of this case and provide:-
“Chasing escaping vehicles:
a) The responsibility for undertaking a chase rests with the driver of the garda vehicle, unless the order is given by a radio message. The driver is also responsible for deciding whether the pursued car is to be tailed or an attempt made to stop it. The whole responsibility is with the driver alone and he is not to be interfered with in any way or urged to higher speed by anyone. A chase at speed is only justified where it is really important to arrest the occupants of the pursued car. A minor crime, traffic offence, or even the sighting of a stolen car, does not justify a chase at speed.
Stopping escaping vehicles:
a) Stopping should only be adopted as a last resort. Usually it is better to tail the suspect in the hope that he will be held up by traffic, run out of petrol or make a mistake, which will enable an arrest to be made. It is preferable to let a criminal escape rather than risk death or injury to innocent people.
b) Stopping obviously involves risk to both vehicles and their occupants. If real need arises this risk must be accepted, but it is essential that the right place and moment should be chosen so that no one else is endangered. Here again, it is a question of the skill and discretion of the driver.
c) Where a member of the Garda Síochána is pursuing a vehicle and he suspects with reasonable cause that an offence under Section 8 of the Criminal Law Act, 1976 or any offence under the said Act has been, or is being or is about to be committed, he may require the driver to stop, and may use reasonable force in order to compel him to comply with such requirement, and such force may include the placing of a barrier or other device in the path of the vehicle.
This paragraph (c) does not affect the generality of the sub-section and is not to be construed as giving a blanket permission to deal similarly with all offences or crimes.”
In the course of the appeal before this Court, further reference was made in course of submissions to a number of Canadian decisions which dealt with police pursuits, notably Doern v. Phillips Estate (1994) 2 B.C.L.R. (3d) 349 and Noel v. Botkin and others (1995) 9 B.C.L.R. (3d) 21 British Columbia Supreme Court.
In the first of these cases, the Supreme Court of British Columbia reviewed a number of Canadian decisions before concluding (at p 17):-
“It is apparent from a review of these authorities that Canadian courts have been reluctant to find negligence on the part of police officers in the lawful discharge of their duties. Nevertheless, the authorities also demonstrate that each case must be examined according to the circumstances of the case”.
On the following page, the standard or duty of care was elaborated in the following manner:-
“Based on the authorities provided, there is little doubt that the standard of care to which a police officer will be held is that of a reasonable police officer, acting reasonably and within the statutory powers imposed upon him or her, according to the circumstances of the case. In this case, it is necessary to consider whether the pursuit policy, which constituted a self- imposed standard of care, was followed. The police pursuit policy was obviously carefully and thoughtfully crafted. It was designed to assist officers and in the conduct of the activity that put them at more risk of harm than any of their other duties. Although the policy does not, in itself, constitute the standard of care, compliance with the policy, in my view, is a very important factor to consider in determining whether the standard of care has been met.”
In Noel v. Botkin, the same court summarised the question to be asked in assessing the conduct of police officers during pursuit is to enquire:-
“[W]hether they, viewed objectively from the view point of a reasonable police officer, acted reasonably and within the statutory powers conferred upon them. In considering that question, the Court must take into account that officers will be expected to perform the duties imposed on them by statute and to comply with policies adopted by the force to which they belong. A failure to comply with policy will not necessarily constitute negligence, nor will an error in judgment. Officers are exempted from compliance with certain traffic rules, provided they meet the requirements of Section 118 of the Motor Vehicle Act. There must be a recognition that officers are required to exercise judgment in balancing the competing interests of arresting wrongdoers and protecting citizens.”
Reliance was also placed by counsel on behalf of the defendant during the course of the appeal on a decision of the Scottish Court of Session in Gilfillan v. Barbour (2004) SCLR 92, in which a careful distinction was drawn between the duty of care owed by a police officer and the standard of care which that duty imposes. As Lord Reed stated in his judgment (at p 12):-
“The police officer, like any other driver, owes a duty of care to other road users: that much is indisputable. The real question, however, is not as to the existence of a duty of care, but as to the standard of care which that duty imposes: something which one might expect to depend on the circumstances. McNair J. appears to have considered that the standard of care required of the police officer was the same as the standard required of any other driver”
In deeming such reasoning to be questionable, Lord Reed stated:-
“If the ordinary driver breaks the speed limit, that is in itself a material factor in determining whether he has been negligent. In the case of a police officer, on the other hand, in circumstances in which he is exempted from obeying the speed limit, no inference of negligence can be drawn from his driving at a speed in excess of the speed limit. The only question, as it seems to me, is whether it is reasonable for him in the particular circumstances to drive at a given speed, notwithstanding the risk of possibly injuring another road user. The answer to that question must depend on the circumstances, in particular those circumstances relevant to the urgency of the police business on which he is engaged, and those circumstances relevant to the degree of risk which he is taking. For example, in deciding whether it was reasonable for a police driver to drive at a given speed, and to take the concomitant risks as regards other road users, it might be relevant to know whether he was in pursuit of an escaping murderer or in pursuit of a motorist with defective lights; whether he was trying to get an injured man to hospital in time to save his life, or trying to catch a car thief. There will of course be circumstances where the risk to other road users is so high that it would not be reasonable to take that risk, however urgent the police business might be.”
He continued as follows at page 14:-
“It also appears to me to be important, in circumstances such as those of the present case, to bear in mind that the responsibilities of a police officer on mobile patrol can involve making difficult judgments: for example, as to the urgency of responding to a call and the appropriate speed for him to adopt in doing so, bearing in mind that he has been trained in driving skills to a higher level than the ordinary driver. Such judgments may have to be made in circumstances where the potential consequences of excessive delay, or of excessive haste, may be equally grave; and where there may be little time for reflection upon the choice to be made. It is therefore important, when such a driver is alleged to have been negligent, for the court to be satisfied that his conduct went beyond a mere error of judgment within the scope of the proper performance of his duties, and amounted to conduct which can be regarded as negligent. In determining that question, the court has to consider all the circumstances, including the nature and degree of any emergency involved, in order to decide whether, in driving as he did, the driver acted reasonably or not.”
In this context, counsel for the defendant drew the attention of the court to the Road Traffic (General and Ordinary Speed Limits) Regulations, 1994 (S.I. Number 194 of 1992) and the Road Traffic (Special Speed Limits) Regulations, 1994 (S.I. Number 223 of 1994) whereby vehicles used by the Garda Síochána in the performance of their duties were exempted from the application of the regulations.
As already indicated there was no real dispute between the parties but that the legal principles elaborated above set out in fair detail the relevant duty and standard of care. The essence of the dispute, however, was whether, in the particular circumstances of this case, there was a breach of such duty, and if so, was it causative of the plaintiff’s injuries.
Submissions
In the course of the appeal, Mr. Brian R. Murray S.C., counsel for the defendant, argued that the gardaí had a duty to uphold the law and to deal with infringements, be they speeding offences or other more serious transgressions. He submitted that in the instant case, the gardaí had at all times behaved appropriately. They were perfectly justified in commencing the pursuit of a motor cycle which had passed them at 80 miles per hour and which accelerated away from the speed trap at Urlingford. There were objectively reasonable grounds for suspecting, either then, and most certainly at a later stage when the motorcycle passed the garda road-block in Cashel, that some serious offence had been committed. The garda members had radioed ahead to set up appropriate road-blocks. They had not driven at or sufficiently close to the motorcycle to cause the accident complained of. They had never even come sufficiently close to the bike in the course of the pursuit to identify its registration number, even when closing to within 150 yards of the bike when going through Cashel. He further argued that the nature of the pursuit after Cashel was quite different from that which had preceded it. At no stage was there any evidence that the garda vehicle had then travelled in excess of 50 miles per hour. Furthermore, Mr. Lynch, while he believed the garda car was still in pursuit, never saw it again from the time he left Cashel until the accident occurred some 9.6 miles beyond Cashel. The garda vehicle was well behind at that stage and that was evident from the fact that it took one and a half minutes for the garda vehicle to arrive on the scene of the accident. He submitted that this section of the pursuit was quite different because the gardaí, having set up a road-block at Tipperary, were content to remain behind the motorcycle and had no intention of doing anything which would cause danger to either the driver or the pillion passenger, nor did they do so.
Alternatively, if the gardaí were to be found negligent in these circumstances, Mr Murray submitted that the driving of Mr. Lynch at the time of the accident constituted a novus actus interveniens of such a degree as to absolve the defendant from all blame. He cited Conole v. Redbank Oyster Company limited and another [1976] I.R. 191 as authority for the proposition that one must distinguish between negligence and causative negligence. The only causative negligence in this case was the driving of Mr Lynch: this was the proximate and sole reason for the accident in the particular circumstances of this case.
He further pointed out that Mr. McMahon S.C., counsel for the plaintiff, had agreed in the course of his submissions, that once the garda vehicle got caught up behind the juggernaut shortly after leaving Cashel, the distance which then built up between the motorcyclist and the garda vehicle provided an opportunity in which the motorcyclist, had he so wished, could have stopped and allowed the pillion passenger to dismount from the motorcycle.
Further and alternatively, Mr. Murray submitted that nothing the garda patrol car had done, or failed to do, had, as a matter of fact, been causative of the accident. There was nothing in the behaviour of the garda vehicle at any stage which could or should have caused the driver of the motorcycle to behave as he did behave at the time of the accident itself. The garda vehicle must have been at least a mile away and out of sight when the collision occurred between Mr. Lynch’s motorcycle and the vehicle driven by Mr. Kearns.
For the respondent Mr McMahon submitted that the gardaí, once they had set up the roadblocks, should have desisted from any attempt to maintain a pursuit which had as its goal the apprehension of the motor cyclist. They had no hard information that any serious crime had been committed by the driver and thus had no right to engage in a chase at speed. It was foreseeable to the gardaí that the motor cyclist would continue to speed after he left Cashel because it was clear the garda vehicle was continuing to pursue him on the road to Tipperary.
Decision
The resolution of this matter has been somewhat simplified by the concession on behalf of the appellant that, in the particular circumstances of this case, the occupants of the garda vehicle did owe a duty of care both to the driver of the motorcycle and to the plaintiff.
That being so, it is not necessary to carry out the kind of detailed analysis in relation to the existence or otherwise of a duty of care which was conducted by Fennelly J in Breslin v. Corcoran and the Motor Insurers’ Bureau of Ireland [2003] 2 IR 203, though some consideration of the policy aspects of finding in favour of the existence of a duty have a relevance in this case when it comes to the question of causation.
In Breslin the first named defendant had left his vehicle unlocked with the keys in the ignition. An unknown person stole the car and, as a result of his negligent driving, collided with the plaintiff and caused him injury. This Court held in Breslin that, in determining whether the owner of the vehicle owed any duty to the person ultimately injured, that it was natural to have regard to considerations of fairness, justice and reasonableness, in addition to the elements of foreseeability and proximity and the judge of fact had to consider whether it was fair and just to impose liability and to have regard to all the relevant circumstances. The Court further held that while it was reasonably foreseeable that an unattended motor car would be stolen, it was not reasonably foreseeable that it would then be driven negligently. The Court thus followed its own decision in Glencar Explorations p.l.c. v Mayo Co. Co. (No.2) [2002] 1 IR 84 in which Keane CJ had stated at p.139:-
“There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff…”
In my opinion any view of the standard of care – as distinct from the duty of care – must turn on the circumstances of the individual case. In this case that demands a recognition that the gardaí have wide ranging powers under the Road Traffic Acts in relation to the preservation of law and order and, in particular, safety on the roads. Furthermore, public policy requires that the functions of the gardaí in this regard are discretionary powers rather than duties. Thus Part IX of the Road Traffic Act, 1961, as amended, includes the power of arrest without warrant, the right to demand information, the power to stop a vehicle, the power to dispose of a vehicle temporarily, the power to detain a vehicle, the power of entry and detention of persons. Furthermore, the gardaí also have common law powers which enable them to require a person to stop, even where there is no evidence or no reasonable suspicion of a crime having been committed.
In the course of his judgment in (Director of Public Prosecutions (Stratford) v. Fagan [1994] 3 I.R. 265), Blayney J. examined the duties of the gardaí and referred to the dicta of Lord Parker C.J. in Rice v. Connolly [1966] 2 Q.B. 414 at p 419:-
“It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”
He further stated:-
“It is clear from these statements in regard to the duties of the police at common law that part of the duties of the gardaí are to detect and prevent crime. It follows in my opinion that if, in order adequately to detect and prevent crime, they find it necessary to require motorists to stop, the common law gives them full power to do so.”
In support of this argument, Blayney J. remarked that Section 109 (1) of the Road Traffic Act, 1961 requiring a motorist to stop does not actually give an express power to the gardaí; rather it obliges the motorist to stop when required to do so by a member of the gardaí but says nothing about the circumstances in which the gardaí have the power to stop a motorist. This is consistent with the existence of a common law power to stop motorists. Indeed, this power exists for practical reasons to allow gardaí to carry out their duties effectively and expeditiously without being concerned with the legality of their actions or that the performance of their functions may carry sanctions which in turn might deter them from their duties. Nonetheless the court stressed in Fagan’s case that these powers must be exercised bona fide and not in a capricious or arbitrary manner. I am satisfied that the silence in the legislation as regards the police power to pursue a motorist is confirmatory of a common law power to do so and that those powers must by implication include the power to operate random checks, erect road blocks and stop or pursue offending motorists.
Indeed in recent years the Oireachtas has seen fit to increase the penalties for dangerous driving and speeding. The gardaí have a clear obligation to ensure that these laws are upheld and to detect, prevent or stop any breaches thereof. In complying with these obligations it is obvious that the gardaí may owe different standards of care in a pursuit situation depending on the particular circumstances. For example, if there are good grounds for believing the perpetrator of a recent murder or bank robbery is attempting an escape, the standard of the duty owed to such a person may obviously be less than in the case of a trivial offender, particularly if the surrounding circumstances create particular risks in continuing the pursuit.
Turning to the facts of the instant case, Garda Meehan stated clearly that in all her eight years she had never seen anyone fail to stop at a speed check. Similar evidence was given by Sergeant Dempsey. The failure of the motorcyclist to stop outside Urlingford led those gardaí to form a suspicion that some sort of criminal activity had, or was, taking place so that the decision to pursue or tail the motorcyclist in the performance of their duty to detect and prevent crime can not, in my view, be seen as being in breach of any duty to those on the motor bike, notably in circumstances where the garda belief was both objectively reasonable and held bona fide. There is no allegation or evidence whatsoever of mala fides on their part in this case. I think therefore that Mr Murray is correct in describing the relevant test to justify the commencement of a pursuit as being one whereby the gardaí should have reasonable grounds for doing so and not one whereby as a precondition they should first have a report on the car radio of the commission of a crime before taking action. It would be a very unsatisfactory state of affairs to hold that the gardaí should have refrained from tailing or pursuing the speeding motorcycle when they knew it was not going to stop and notably when the driver of the motorcycle, who was already travelling well in excess of the speed limit, accelerated away from the speed trap. To so hold would be to condone a state of affairs whereby a reckless driver might evade justice altogether by simply driving more erratically or dangerously than when first observed.
I also believe the learned trial judge was in error in her inference that the pursuit was one seamless unitary process from Urlingford to Kilfeakle. It seems to me the circumstances changed more than once during the pursuit, so that the 28 mile chase divides into separate sections. The first section was that between Urlingford and Cashel. During that stretch both vehicles achieved speeds in excess of 100 miles per hour. Nonetheless, the pursuing garda vehicle never got sufficiently close to identify the registration number of the motorcycle. Nor had the gardaí any reason at that stage to believe that the driver and pillion passenger were acting other than by way of joint venture.
In and through Cashel, however, rather different circumstances obtained. Firstly, on reaching the road block, the pillion passenger threw up her hands in a gesture which conveyed to the pursuing gardaí that she wanted to get off the bike. It seems to me that once the pursuing gardaí observed this behaviour the circumstances altered to some degree (with a corresponding elevation of the standard of care) because the gesture conveyed to the occupants of the pursuing vehicle that the pillion passenger might not be, or at any rate might no longer be, part of any joint venture. The gesture was also given at a time when the motorbike and pursuing gardaí were about to pass through the main street of Cashel, where it might reasonably be expected there might be large numbers of pedestrians, bicycles or other traffic. In such circumstances, it is not difficult to conclude that a different standard of care should prevail for as long as those two considerations remained relevant. However, the critical point is that the accident did not happen in Cashel but at a point ten miles from there.
It seems to me that a completely different set of circumstances came into being when the vehicles left Cashel. Firstly, the nature of the road was different and did not lend itself to excessive speed, at least in so far as the garda vehicle was concerned. Secondly, the occupants of the garda vehicle were aware that a road block had been set up ahead in Tipperary and were content to sit in behind the motorcycle, rather than to attempt to stop it in any particular way themselves. Thirdly, the garda vehicle became trapped behind an articulated vehicle for some time, so that when the garda vehicle came upon the scene of the accident some 9.6 miles outside Cashel, the accident had already occurred some one and a half minutes beforehand. Whatever about the speed of the motorcycle immediately before the accident, the evidence at trial was that the garda vehicle never exceeded 50 miles per hour along this stretch of roadway. Unless one took the view, which I do not take, that the gardaí in the following vehicle should have opted out of any further interest in these events by halting their car, I do not believe there was any breach of duty which the occupants of the garda vehicle owed, either to the driver of the motorcycle, or to the pillion passenger, over these last few miles, even if the plaintiff is deemed to be no more than an involuntary participant in events at that stage.
Even if it had been negligent on the part of the gardaí to follow the motor bike towards Tipperary, the question would still have to be addressed as to whether the driving of Mr Lynch at or near the scene of the accident constituted a novus actus interveniens such as would have exonerated the appellant’s agents in any event. The following passage in McMahon and Binchy, Irish Law of Torts, 3rd Ed., (Dublin, 2000) (at p 77) is useful in considering the kind of actions which may amount to a novus actus interveniens by a third party (who in this instance would be Mr Lynch):-
“From the case law we may state the following propositions with some degree of confidence:
1) If the third party’s act is wholly unforeseeable then the original defendant will not be liable
2) If the third party’s act is intended by the original wrongdoer, or is as good as programmed by him, or if it is an inevitable response to the defendant’s act or is very likely, then the original defendant is still considered to be the operative cause in law. The third party’s intervention in these circumstances is not a novus actus which will break the chain of causation between the plaintiff’s damage and the defendant’s conduct. This is even more obviously true where the intervening event is not a voluntary act at all: where A pushes B against C.
3) If the third party’s action is foreseeable (though not probable or likely) then the courts will look especially closely at the nature of the intervenor’s act in addressing this problem. If the intervenor’s act is criminal or reckless in the subjective sense, then it is likely to be considered as a novus actus. Similarly if the third party’s act is intentional. …if the intervenor’s act, however, is merely careless, negligent, or perhaps even grossly negligent, it may not be considered sufficiently strong to break the chain of causation between the original defendant and the plaintiff’s injury, although much will depend on the facts of the case. In Crowley v. AIB and O’Flynn and Others [1988] ILRM 225 we have seen that a negligent omission by the third party was deemed sufficient to break the chain and relieve the defendant.”
The authors go on to suggest that the courts in recent times are more likely to settle for a ‘multiple cause’ finding and apportion losses between concurrent wrongdoers. Thus at p. 78 the authors state:-
“All this means is that the courts are less likely to find that a novus actus is the sole cause of the plaintiff’s injury nowadays. It is only in very extreme cases that the nature of the third party’s act will break the chain completely between the defendant’s original conduct and the plaintiff’s damage.”
In my view this is an extreme case. It is true to say that the motorcyclist asserted a belief that he was still being pursued by the garda vehicle as he left Cashel. Even if that was his initial belief, he must have known that the garda vehicle, which had been caught up behind the articulated truck which presumably he himself had overtaken, was nowhere near him as he came to Kilfeakle. He was not being driven at, intimidated or menaced by the garda vehicle in any way whatsoever. Indeed after a pursuit distance of 28 miles it would be difficult to surmise that Mr Lynch could have been in a ‘panicked’ condition, if indeed he ever was in the first place. As we know the garda vehicle was behind by perhaps more than a mile at the stage when the accident occurred. Did the garda vehicle in those circumstances cause or make any real contribution to what happened at the bend in the roadway? It seems to me that any sensible application of the principles laid down in Conole v. Redbank Oyster Company [1976] I.R. 191 must lead to the conclusion that the effective negligence leading to the accident was that of the motorcyclist. As Henchy J stated in the course of his judgment in Conole (at p 197):-
“However, as far as the negligence that resulted in the drownings is concerned, any such default by Fairway would have been merely a causa sine qua non and not a causa causans.
In terms of legal causation, there was only one act of negligence in this case: it was the defendants’ act of putting to sea in a boat which they knew to be unseaworthy and which was overloaded with unsupervised young people. Once the defendants
are shown to have been aware of the danger involved in that act, they are no more entitled to shed any part of their responsibility on to Fairway, on the ground that Fairway supplied an unseaworthy boat, than they would be entitled to saddle another person with part of the liability of the unseaworthiness of which they had knowledge had been caused by an earlier act done by that other person, e.g. a negligent collusion or a malicious injury caused by him.
The direct and proximate cause of this accident was the decision of the defendants, acting through Mr. Hugman, to put to sea with passengers when they had a clear warning that the boat was unfit for the task. The defendants were the sole initiators of the causative negligence.”
The distinction between a causa sine qua non and a causa causans was further addressed by this court in Kenny v M.I.B. (Unreported, Supreme Court, 3 April, 1995) in circumstances where a negligent truck driver caused injury to a child who had been thrown from the open back of a truck which then rolled over him. In the course of his judgment Blayney J stated (at p. 3):-
“While there is undoubtedly a close connection, as the learned trial judge found, between the plaintiff’s being thrown from off the truck and his injury, in my view it was no more than the causa sine qua non. The plaintiff would not have received his injury had he not been thrown off the truck, but the causa causans was the back wheel of the truck going over him. And this was made very clear by the evidence of the plaintiff’s surgeon…”
Thus if there had been some want of care in the present case in continuing to follow the motor bike towards Tipperary, I am nonetheless firmly of the view that it was not causative of the plaintiff’s injuries, nor did it contribute to them in any material way. Putting it another way, the driving of the garda vehicle may have been a causa sine qua non but the causa causans of the plaintiff’s injuries was Mr Lynch’s driving at the bend at Kilfeakle.
Nonetheless, given that the plaintiff in this case may well have been completely blameless (despite allegations of contributory negligence raised against her), it is worth considering whether policy considerations should encourage this Court to relax the requirements of establishing causation for that reason. In the instant case that would mean that the Court would have to infer that the mere fact of the garda pursuit is of itself and without more to be regarded as having made a material contribution to the plaintiff’s injuries. However, I think that would be a hazardous and dangerous course to adopt not least because there are in this case policy considerations of an even more compelling nature which require that the gardaí be permitted to carry out their discretionary powers in upholding the law without undue fear or apprehension of sanctions for so doing. A high premium is placed on road safety in modern Ireland where there is an unacceptable level of road deaths many of which are caused by speeding. To hinder the gardaí in their efforts to prevent such offences by unduly relaxing the requirement to establish causation would offend those “just and reasonable” considerations to which Keane CJ adverted when considering the duty of care in Glencar Explorations p.l.c. v Mayo County Council (No 2) [2003] 1I.R.84.
I find I must disagree with the inferences drawn by the learned trial judge in answering the questions posed for resolution at the end of the case. Indeed the form of the question is based on the assumption that the chase was one seamless and unchanging sequence from start to finish, an inference which in my view was mistaken having regard to the evidence. For the reasons already stated, I believe the standard of the duty of care varied at different points in this sequence and that there was no breach of that duty on the part of the appellant’s agents which was legally or factually causative of the accident at Kilfeakle. In this context it is important to note that Mr Lynch had always intended taking the Cashel/Tipperary road for the purpose of returning to Limerick from where he and his girlfriend had earlier travelled, so that there was no question of being forced to take the particular route by any garda action.
I am satisfied that the plaintiff’s injuries were caused entirely as a result of the reckless driving of Mr. Lynch. This recklessness was all the greater as he knew his girlfriend, who was a regular traveller on the bike with him, was pregnant at the time. He exposed his passenger to shocking danger and so admitted at the trial. It is not at all surprising that in the aftermath of the accident the plaintiff was heard to repeatedly state “I’ll kill him” in reference to Mr. Lynch. It emerged in evidence that Mr. Lynch had no insurance for his driving of the motorcycle, had been stopped on a previous occasion for having no insurance and also had a false number plate on the bike. It also was mentioned at the trial that he was subsequently convicted of various offences under the Road Traffic Act, 1961 arising from this incident. The significance of these matters lies only in demonstrating that Mr. Lynch had a motive of his own to accelerate away from the speed trap at Urlingford. It must be borne in mind also that Mr Lynch was already significantly in excess of the maximum speed limit and putting his pillion passenger at risk when first seen by the gardaí at Urlingford. In my opinion the only unbroken and seamless thread in this entire saga was the utter recklessness of Mr Lynch in his driving of the motor cycle on the evening in question. The proximate and immediate cause of the plaintiff’s injuries was the fact that at a bend marked by a continuous white line Mr. Lynch went totally onto his incorrect side of the road into a head-on collision with an approaching vehicle.
It is a tragic situation given that the plaintiff that the plaintiff, who at the time was only 20 years of age, was in the early stage of a pregnancy and suffered a miscarriage and other extremely serious injuries in this accident.
In my view however the appeal must succeed and it follows that the plaintiff’s claim must be dismissed.
Lynch v. Palgrave Murphy Ltd.
[1964] IR 130
O’Dalaigh C.J.; Lavery J.; Kingsmill Moore J. 153
Supreme Court.
O’DALAIGH C.J. :
13 April
In my opinion this appeal should be allowed for the reasons about to be stated by Mr. Justice Kingsmill Moore and Mr. Justice Walsh.
LAVERY J. :
I am of the same opinion.
KINGSMILL MOORE J. continued his judgment as follows:
This appeal raises once again the question as to when and in what circumstances a workman, whose services have been lent temporarily by his permanent employer to another employer, can be considered to have become the servant of the second employer so as to make the second employer liable vicariously for his negligence. Various terms have been used in the decided cases to describe the second employer, such as “dominus pro tempore” and “dominus pro hac vice.”I will use the terms, “permanent master” and “temporary master,” as being the simplest, though I realise that the use of the word “master” begs the question to a certain degree.
It was accepted by counsel on both sides that it was a question of fact whether in all the circumstances the control and direction of the workman could be said to have passed so completely from the permanent master to the temporary master as to make the workman a servant of the temporary master to the extent that the temporary master became responsible for his negligence; and it was conceded by counsel for the defendants that in certain circumstances such a result could be brought about. But counsel for the defendants contended that the presumption always was that the workman remained in the service of the permanent master and that the onus of disproving this rested on anyone who wished to challenge it; moreover, he said that the onus was very heavy and that the burden could only be shifted in exceptional circumstances, none of which had been proved in the present case.
The evidence at the trial did not establish all the circumstances quite as clearly as might be desired, but they may, I think, be summarised as follows. Byrne was employed, paid and subject to dismissal by Crosbie. He was a skilled manipulator of the truck and the fork lift and his services were included in the price paid for the hire of the fork-lift by whoever hired it. He alone had control of the levers and mechanical devices which operated the fork-lift. The temporary masterin this case the defendants, Palgrave Murphy Ltd.had no right to give him orders in regard to his actual method of working the controls. On the other hand, Palgrave Murphy Ltd., through their foreman stevedore, could assign the task to be performed, the end to be procured and, to a certain extent, the manner of performance and procurement. The foreman could say what loads were to be lifted, and from where and to what place they were to be transported, and how they were to be stacked. I will assume that, if the nature of the load required special precautions in its transport, the foreman could insist on those precautions being observed; Mr. Crosbie said that the stevedore might check the operator if he were not handling the cargo in the proper manner. The actual manipulation of the controls was admittedly a matter for the operator. Mr. Crosbie was asked:Would you have any right or power to direct him (the operator) how he was to operate the controls of his truck?” and his answer was:No, I don’t think so, because the operator becomes quite an expert after a few months of that, so I don’t think anyone could advise him how to handle it.” I think that this answer must be interpreted as a disclaimer by Mr. Crosbie of the technical knowledge which would induce or warrant his interference, and not as a denial of the legal right to give instructions if, in any event, instructions appeared to him to be necessary.
There is no evidence that the foreman ever attempted to interfere with the manner of driving the truck or the operation of the controls and it is clear that the accident was due to a negligent operation of the controls, namely, lowering the forks before the plaintiff had his hand clear.
A great number of cases, ranging over a century, were cited but it is unnecessary to review them in detail. Though the question whether the permanent master or the temporary master is responsible for the negligence of the workman is a conclusion of fact based on the establishment or non-establishment of various other facts, it seems to be established by authority that the mere power to assign the task to be done and even to direct in a general way how the desired object is to be accomplisheddoes not, by itself, make the temporary master responsible for the workman’s negligence, unless there is also the power to control the way in which the act involving negligence was done. In the present case Crosbie engaged, paid and could dismiss Byrne. He directed him each day where to go to work. He left the driving of the truck and the operation of the controls to the discretion of Byrne, but he, Crosbie, would have had the power, by himself or by an engineer if he had chosen to employ one, to direct Byrne in his method of handling the controls. The defendants could only indicate to Byrne the load to be taken, the place from which it was to be taken, the place where it was to be deposited and the arrangements made to facilitate the depositing. The lifting of the forks, the driving of the truck and the management of the forks to deposit the load were not under the control of the defendants. This being so, there was no fact which would warrant a jury in finding that Byrne had become a servant of the defendants so as to involve them in vicarious liability. Nor is the position altered by the fact that, in order to achieve the desired end of stacking the bales in tiers, Byrne had so to operate his forks as to co-operate with a servant or servants of the defendants.
Mr. Micks, for the plaintiff, relied chiefly on Donovan v.Laing, Wharton, and Down Construction Syndicate, Limited (1). There the defendants lent one of their cranes and a driver to wharfingers, Jones & Co., who were discharging a ship at their wharf. The crane driver, according to the statement of facts, worked the crane in conformity with instructions received from the wharfingers. The plaintiff, one of the wharfingers’ servants, gave instructions to the crane driver for the raising and lowering of the chain attached to the load. The statement of facts does not indicate that he did more. He was injured, as the jury found, by the negligent operation of the crane. The trial judge entered judgment for the defendants on the ground that the crane driver had become, for the purpose of his operations, the servant of the wharfingers. The Court of Appeal upheld this finding, but passages in the judgments suggest that the control exercised by the wharfingers went much further than appears in the statement of facts. Thus Lord Esher M.R. says, at p. 631:. . . every act in connection with the working of the crane must be done according to the orders of those who are directing the loading,” and at p. 632:The man was bound to work the crane according to the orders and under the entire and absolute control of Jones & Co.”; and the Master of the Rolls also said that the man was “. . . bound to work under the orders of Jones & Co., and, if they saw the man misconducting himself in working the crane or disobeying their orders, they would have a right to discharge him from that employment.” Bowen L.J. says, at p. 634:It is clear here that the defendants placed their man at the disposal of Jones & Co., and did not have any control over the work, he was to do,” and “in the present case the defendants parted for a time with control over the work of the man in charge of the crane, and their responsibility for his acts ceased for a time.”
M’Cartan v. Belfast Harbour Commissioners (1) was a case where the facts closely resembled Donovan v. Laing, Wharton, and Down Construction Syndicate (2). The Commissioners hired out one of their cranes with its driver to the master of a ship which was discharging at their wharves. The craneman raised and lowered the buckets containing the cargo, and swung the jib, on the direction of a servant of the ship-master. Owing to the negligence of the craneman in lowering a bucket at a high speed, the plaintiff was injured and he sued the Commissioners. The jury found that the plaintiff was injured as a result of the negligence of the craneman who let the bucket get out of control; but in answer to the special question, “Had the hirer authority to control Duffy otherwise than in respect of the time and place of movement of the crane, and the time of raising and lowering the buckets?”they replied, “No.” On those findings the trial judge entered judgment for the plaintiff. Upon motion by the defendants, the King’s Bench Division set aside the judgment for the plaintiff and entered a verdict and judgment for the defendants with costs. The judgment of the King’s Bench Division was reversed by the Court of Appeal who were affirmed by the House of Lords. In the Court of Appeal Holmes L.J., who gave the judgment of the Court, said that the work of unloading the vessel was a joint operation, but in that part of it which consisted of the manipulation of the crane the ship-master had no control over the craneman. For this reason he held that he had not become the servant of the ship-master so as to make the ship-master liable for the craneman’s negligence in conducting that operation.
In the House of Lords the decision again rested on the limited amount of control exercised by the ship owner. Donovan’s Case (1) was distinguished because in that case all control over the craneman had passed to the wharfinger while in M’Cartan’s Case (2) the control was limited as found by the jury. Lord Dunedin cited with approval the words of Bowen L.J. in Moore v. Palmer (3) (a case almost identical in the relevant facts):The great test was this, whether the servant was transferred or only the use and benefit of his work.” M’Cartan’s Case (2), as a judgment of our Court of Appeal and of the House of Lords before 1922, would normally be regarded as a precedent which, even if not absolutely binding on us, should be followed in the absence of very special reasons, and if there is any discrepancy between Donovan’s Case (1) and M’Cartan’s Case (2) then the latter should be followed.
Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool), Ltd. (4) in its facts again echoes M’Cartan’s Case (2). The plaintiff, McFarlane, was employed by forwarding agents who had engaged the respondent company as stevedores to load cargo on a ship. While so employed the plaintiff was injured by the negligence of a craneman in the management of his crane. The crane and its driver had been hired by the appellant Board to the respondent company. Lord Simon, at p. 10 of the report, compendiously states the facts which seemed to him relevant, and his conclusion:The appellant board had engaged Newall, and it paid his wages: it alone had power to dismiss him. On the other hand, the respondent company had the immediate direction and control of the operations to be executed by the crane driver with his crane, e.g., to pick up and move a piece of cargo from shed to ship. The respondent company, however, had no power to direct how the crane driver should work the crane. The manipulation of the controls was a matter for the driver himself. In the present case the accident happened because of the negligent way in which the crane driver worked his crane, and since the respondent company had no control over how he worked it, as distinguished from telling him what he was to do with the crane, it seems to me to follow that Newall’s general employers must be liable for the negligence and not the hirers of the apparatus . . . It is not disputed that the burden of proof rests on the general or permanent employerin this case the appellant boardto shift theprima facie responsibility for the negligence of servants engaged and paid by such employer so that this burden in a particular case may come to rest on the hirer who for the time being has the advantage of the service rendered. And, in my opinion, this burden is a heavy one and can only be discharged in quite exceptional circumstances.”
Lord Simon refers to the test laid down by Bowen L.J. in Donovan’s Case (1) when the latter said:. . . by the employer is meant the person who has a right at the moment to control the doing of the act,” and Lord Simon accepts such test only if the words are construed as meaning “to control the way in which the act involving negligence was done.”At page 12 of the report he presents the test as being “where the authority lies to direct, or to delegate to, the workman, the manner in which the vehicle is driven,” and he goes on to say:It is this authority which determines who is the workman’s ‘superior.’ In the ordinary case, the general employers exercise this authority by delegating to their workmen discretion in method of driving, and so the Court of Appeal correctly points out . . . that in this case the driver Newall, ‘in the doing of the negligent act, was exercising his own discretion as drivera discretion which had been vested in him by his regular employers when he was sent out with the vehicleand he made a mistake with which the hirers had nothing to do.'”
Lord Macmillan, Lord Porter, Lord Simonds and Lord Uthwatt, in slightly varying language, agreed with Lord Simon. Thus Lord Macmillan states, at p. 13:The stevedores were entitled to tell him where to go, what parcels to lift and where to take them, that is to say, they could direct him as to what they wanted him to do; but they had no authority to tell him how to handle the crane in doing his work,” and at p. 14:Here the driver became the servant of the stevedores only to the extent and effect of his taking directions from them as to the utilization of the crane in assisting their work, not as to how he should drive it.” Lord Porter says that a change of employer must always be proved in some way and not presumed: and that the test is to ask who is entitled to tell the employee the way in which he is to do the work on which he is engaged. He says, at p. 17:But it is not enough that the task to be performed should be under his control, he must also control the method of performing it. It is true that in most cases no orders as to how a job should be done are given or required: the man is left to do his own work in his own way. But the ultimate question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders as to how the work should be done. Where a man driving a mechanical device, such as a crane, is sent to perform a task, it is easier to infer that the general employer continues to control the method of performance since it is his crane and the driver remains responsible to him for its safe keeping.”
Finally, I would quote Lord Uthwatt, who says, at p. 21:The principles established by the authorities are clear enough. The workman may remain the employee of his general employer, but at the same time the result of the arrangements may be that there is vested in the hirer a power of control over the workman’s activities sufficient to attach to the hirer responsibility for the workman’s acts and defaults and to exempt the general employer from that responsibility. The burden of proving the existence of that power of control in the hirer rests on the general employer. The circumstance that it is the hirer who alone is entitled to direct the particular work from time to time to be done by the workman in the course of the hiring is clearly not sufficient for that purpose. The hirer’s powers in this regard are directed merely to control of the job and the part the workman is to play in it, not to control of the workman, and the workman in carrying out the behests of the hirer as to what is to be done is not doing more than implementing the general employer’s bargain with the hirer and his own obligations as a servant of his general employer. To establish the power of control requisite to fasten responsibility on him, the hirer must in some reasonable sense have authority to control the manner in which the workman does his work, the reason being that it is the manner in which a particular operation (assumed for this purpose to be in itself a proper operation) is carried out that determines its lawful or wrongful character. Unless there be that authority the workman is not serving the hirer, but merely serving the interests of the hirer, and service under the hirer in the sense I have stated is essential.”
Donovan’s Case (1) was considered by Lord Simon, Lord Macmillan, Lord Porter and Lord Simonds and was explained by the special finding of fact that “entire and absolute control” over the workman had passed to the wharfingers though some of their lordships question whether such a finding could be justified.
The Mersey Docks Case (2) is not binding on us but must command the full weight of so distinguished a Court. I am in agreement with the opinions expressed in that case and, applying the tests laid down, I can find no evidence in the present case to suggest that the defendants had been granted or had assumed any power to control the driver in his actual operation of the machinery of the fork lift. In my opinion the case should have been withdrawn from the jury. The appeal must be allowed and judgment entered for the defendants.
HAUGH J.
I agree.
WALSH J. :
The respondent, Hugh Lynch, is a dock labourer in the employment of the appellants who are stevedores. He had sued them for damages for personal injuries caused to him by the negligence of one, James Byrne, whom the respondent alleges to have been a servant of the appellants.
At the time of the accident the appellants were engaged in unloading a ship at a quay in the port of Dublin. For the purpose of transporting the goods already landed on the quay from the ship, they had hired a vehicle known as a fork-lift truck from one, Henry Crosbie. He carries on business as a carrier and haulier and is the owner of several types of vehicles including fork-lift trucks. From time to time he hires out these latter vehicles to the appellants when they are engaged in unloading ships. On the day in question one of such vehicles, together with its driver, James Byrne (an employee of Crosbie), was hired out to the appellants at the inclusive rate of £1 per hour. This vehicle, operated by Byrne, carried baled goods from the quay-side into a transit shed and there, by means of the mechanically powered fork-lift on the truck, the bales were deposited in tiers in the place or places indicated by the appellants’ foreman.
It is unnecessary to describe the operation in detail. The respondent, who was assisting in the tiering of the bales, was injured when the prongs of the fork lifter were lowered on to his right hand by Byrne. This was due to the negligence of Byrne in the operation of the fork-lift truck.
It is claimed on behalf of the respondent that the appellants are liable by reason of the application of the doctrine ofrespondent superior because, it is said, James Byrne was the servant of the appellants at the time of the accident.
It was not suggested that the contract of service existing between Crosbie and Byrne was at any time terminated or suspended. It follows, therefore, that Crosbie remained at all material times the person who paid Byrne and was the only person who could dismiss him. It also raises the presumption that at all material times Crosbie had the right to determine not only what work Byrne should do, but the manner of doing it. There is abundant authority for stating that, while such matters as payment and power of dismissal may be taken into consideration, the decisive factor in deciding whether a person doing work for another is or is not the servant of that other is whether the latter has complete control as to how the particular work shall be done.
Thus, as the relation of master and servant is in each case a question of fact, the respondent at the trial of this action undertook to discharge the burden of proving that at the time of the accident Byrne was the servant of the appellants, though not in the sense that there was any contract of service between them, thereby rebutting the presumption that Byrne remained the servant of Crosbie. In my view the respondent was in law thereby obliged to prove as a fact that at the time of the accident Crosbie had completely relinquished his right to control Byrne in his operation of the truck and its fork-lift and that the appellants at that time had complete and exclusive authority over Byrne in that matter. That is the effect, in my view, of the line of authorities which includes, amongst others, Rourke v. White Moss Colliery Co. (1); M’Cartan v. Belfast Harbour Commissioners (2); Bain v.Central Vermont Railway Co. (3); Century Insurance Co. v.Northern Ireland Road Transport Board (4); Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool), Ltd. (5);and O’Reilly v. Imperial Chemical Industries, Ltd. (6). It is also the basis of the decision in Donovan v. Laing, Wharton, and Down Construction Syndicate, Limited (7) upon which the respondent in this case sought to rely. That decision turned upon the finding that, to quote Lord Esher M.R., at p. 632, “the man was bound to work the crane according to the orders and under the entire and absolute control of Jones and Co.” This also appears from the judgment of Bowen L.J. when he says, at p. 634:It is clear here that the defendants placed their man at the disposal of Jones and Co., and did not have any control over the work he was to do.” That such a finding of fact is necessary in any case where it is sought to establish that a loaned workman becomes the servant of the person temporarily in receipt of his services was repeated in the decision of the House of Lords in M’Cartan v. Belfast Harbour Commissioners (2) In that case the learned Law Lords thought Donovan’s Case (1) had been correctly decided having regard to the particular finding of fact upon which it was based. Lord Dunedin, dealing with the facts of M’Cartan’s Case (2), stated, at page 150:. . . that the general authority and control of the defendants over Duffy had not, pro hac vice,been surrendered by them, and transferred to Chambers, but that the control given to Chambers was limited to the right to give directions to move the crane alongside the hold, and to lower or raise the bucket. Any control, however limited, is not, per se, enough to transfer the service, and the jury has not held this control to be sufficient so to transfer it.”Indeed, when one bears in mind that Donovan’s Case (1) was so clearly decided upon the finding that the defendants there did not retain any control over the work which their man was to do when they put him at the disposal of Jones and Company, one may venture to suggest that the criticism, levelled at Bowen L.J. for his reference to the “carriage cases,” by Lord Dunedin in M’Cartan’s Case (2), at p. 151, and by Lord Simon in the Mersey Docks Case (3), at page 11, were undeserved. Bowen L.J. did not suggest that the principle of law applicable in the “carriage cases” was different from that applicable in the “crane cases,” but rather that the facts of the “carriage cases” where, as he says, the owner of the carriage “in no sense places the coachman under the control of the hirer,” were so fundamentally dissimilar from the facts upon which Donovan’s Case (1) was being decided that the”carriage cases” clearly could not be used for the purpose of ruling Donovan’s Case (1) by what Lord Dunedin himself described in M’Cartan’s Case (2) as the fallacious test of similarity of facts. There is no necessity to attempt to distinguish Donovan’s Case (1) from M’Cartan’s Case (2) or from the Mersey Docks Case (3) so far as the legal principle involved is concerned, unless it is sought to suggest that the finding of fact upon which the decision was expressed to be based was not justified by the evidence in the case. In my view that is a field of enquiry which is not open for the purpose of endeavouring to show that the legal principle enunciated in Donovan’s Case (1) is other than that which it is expressed to be.
The burden of proving that the hirer is answerable for the negligence of the loaned servant has been described by Lord Simon in the Mersey Docks Case (3), at p. 10, as a heavy one and one that can only be discharged in quite exceptional circumstances. He stated:It is not easy to find a precise formula by which to determine what these circumstances must be.”
If by “precise formula” is meant a precise statement of legal principle, I venture to suggest that it is the one which is found in the cases I have referred to, namely, that the act involving the negligence must be one in respect of which the general employer has completely relinquished his right to control the way in which it should be performed and has completely transferred that right to the hirer at the time of the accident. The difficulty which arises is one of fact in that it may be only in exceptional circumstances that such an arrangement is the case. In Denham v. Midland Employers Mutual Assurance Ltd. (1) Denning L.J., dealing with this topic, says, at p. 444:Such a transfer rarely takes place, if ever, when a man is lent with a machine, such as a crane or a lorry: nor when a skilled man is lent so as to exercise his skill for the temporary employer. In such case the parties do not contemplate that the temporary employer shall tell the man how to manipulate his machine or to exercise his skill. But a transfer does sometimes take place in the case when an unskilled man is lent to help with labouring work: see Garrard v. A. E. Southey & Co. (2). The temporary employer can then no doubt tell the labourer how he is to do the job. The labourer becomes so much part of the organisation to which he is seconded that the temporary employer is responsible for him and to him.”That describes the circumstances usually encountered but it does not of course raise the standard of proof required in a civil action when the facts are that such a complete transfer did take place, even in the case of a skilled person, as was the situation in Rourke v. White Moss Colliery Co. (3). In this context it may be relevant to note the dictum of Murnaghan J. in Graham v. Minister for Industry and Commerce and Molloy (4), where he said, at p. 165:Again, when a person engages a skilled artisan or tradesman, the presumption is that the person engaged is his own master over the work to be done and is not under the control of the other so as to be his servant.” That was a case which turned upon the question of whether the individual concerned was an independent contractor or a servant, but I think it is permissible to equate a machine and its operator with a skilled artisan or tradesman.
Turning to the facts of the present case, the question is whether the evidence adduced on behalf of the respondent is sufficient in law to establish prima facie that Crosbie had surrendered and transferred to the appellants the right to completely control Byrne in the operation and manipulation of the fork-lift truck. In this Court Mr. Micks, on behalf of the respondent, relied upon the answers to questions 413, 451, 452 and 464 as showing that no control remained in Crosbie. Question 413 and its answer must, in my opinion, be read with question 412 and its answer. They are as follows:
“412. Q.: Mr. Guiden would tell you and the fork driver where to go and what to do?
A.: He would tell us where to put the fork lifterto put the stuff. He would tell us and we would have to tell him.
413. Q.: And then you would go over as a team with the fork driver and you would do the unloading that Guiden had told you to do in the way Guiden told you?
A.: Yes.”
The witness was a dock labourer and a fellow-employee of the respondent with the appellants and was working with the respondent at the tiering of the bales. Guiden was the appellant’s foreman. Even assuming that “team” in question 413 included Byrne as well as the witness and the respondent, the answers only deal with the appellants’ foreman indicating the place where the bales were to be deposited by the fork lift truck.
The witness who answered questions 451, 452 and 464 was Crosbie and the questions and answers are as follows:
“451. Q.: When the driver and truck were on hire in that way, who would have the power of checking if something was done wrong?
A.: I would solely depend on my operator.
452. Q.: Suppose he did something wrong, was there someone who would have the right to check him, to correct him?
A.: Yes, the stevedore might check him if he was not handling the cargo in the proper manner.
464. Q.: Would you have any right or power to direct him how he was to operate the controls of his truck?
A.: No, I don’t think so because the operator becomes quite an expert after a few months of that, so I don’t think anyone could advise him how to handle it.”
This evidence reveals only that the foreman might remonstrate with Byrne if he was mishandling the cargo but falls very far short of showing that Crosbie had transferred to the appellants the right of controlling the operation of the fork-lift truck. Crosbie’s answer at question 464 is clearly directed to the necessity for his exercising the power rather than the right to exercise it. The matter was not pursued further with him. This evidence and the other evidence in the case did not go further than to establish that the appellants could indicate where and when the truck was to be operated by Byrne; and even those directions were, in my view, given to Crosbie as the owner of the truck and the employer of Byrne, although they were received not by him personally but by Byrne whom he had sent to do the work. The position was no different than if Crosbie had been present on the quayside during the whole of the operation of the truck and had received the orders in person and then passed them on to Byrne. The transaction between the appellants and Crosbie was essentially one for the conveyance of goods, already unloaded, from the quayside to the transit shed and there to be deposited in accordance with the direction of the appellants: see the observations of Lord Wright in Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board (1), at pp. 517 and 518.
In my view therefore the learned trial Judge should have acceded to the application of the appellants to withdraw the case from the jury. Accordingly this appeal should be allowed.
Keegan v. Owens
[1953] IR 270
Maguire C.J.; O’Byrne J. 270
Supreme Court
MAGUIRE C.J. :
27 Feb.
The judgment of the Court will be read by Mr. Justice O’Byrne.
O’BYRNE J. :
This action was brought to recover damages for injuries sustained by the plaintiff by reason of the alleged negligence and breach of duty of the defendants and each of them and their respective agents and servants at Kiltimagh, in the County of Mayo, on the 28th April, 1949.
There are three defendants. The first-named defendant, Elizabeth Owens, known in religion as Mother Xavier, was, at all material times, a member of the Sisters of St. Louis and Superioress of the Convent of St. Louis at Kiltimagh. The defendant, Mary Constance Ward, known in religion as Mother Joseph, was, at all material times, a member of the community of nuns in the said convent. The defendant, Michael Mcmahon, at all material times, traded as”McMahon’s Amusements” and carried on the business of providing mechanical contrivances, including swing-boats, for public amusement.
The action was tried on the 14th and 15th days of November, 1950, before Mr. Justice Haugh and a jury. At the end of the plaintiff’s case, the defendants applied for directions on the ground that there was no evidence upon which the jury could find in favour of the plaintiff. The trial Judge acceded to these applications and directed the jury to find in favour of the defendants and judgment was entered accordingly. In his notice of appeal the plaintiff asks that the said judgment be set aside and that a new trial be directed.
On the 28th April, 1949, a carnival was being held in a place known as “Benson’s field” at Kiltimagh. It is common case that the object of the carnival was to raise funds for the purpose of building a chapel in the said convent. There is, however, acute controversy as to who managed, controlled and carried on the carnival. There was, admittedly, a committee in connection with the carnival and it is alleged by the defendants that the carnival was controlled and carried on by this committee. The plaintiff, on the other hand, contends that there was evidence from which the jury might infer, and hold as a fact, that the carnival was being run by the nuns and that the only object of the committee was to advise and assist the nuns in this project, and the plaintiff further contends that it was open to the jury to find, on the evidence produced, that the stewards and other persons actively engaged in the management of the carnival were merely agents for the nuns and were acting on their behalf. This raises a fundamental issue on which many of the questions involved in this appeal depend.
It is fairly clear from the evidence that the idea of having such a carnival originated with the nuns and a great deal of the preliminary work was done by Mother Joseph. She caused advertisements to be inserted in the local press and the cost of these advertisements was paid by the nuns. She also approached Mr. John Benson early in the year, 1949, with a view to getting the use of the said field for the purpose of the carnival and, according to Mr. Benson’s evidence, Mother Joseph, on this occasion, made use of the expression, “we are running a carnival.” There is, of course, some ambiguity in this expression; but counsel for the plaintiff says that it is capable of meaning, and that the jury could hold that it, in fact, meant, that the nuns were running the carnival. It is right to point out that the expression was used some months before the carnival was, in fact, held. Mr. Benson said that he had no objection to giving the field for this purpose, provided Miss Lavan, from whom he had taken the field, agreed. Miss Lavan agreed and, accordingly, the field became available for the carnival and the carnival was held there from the 17th to the 28th days of April, 1949.
It appears from the evidence that, prior to, and in preparation for, the holding of the carnival, various meetings were held in the Convent and were attended by leading citizens of the town of Kiltimagh. Mother Joseph attended these meetings and seems to have acted in a secretarial capacity. The local Catholic Curate, Father Kennedy, presided at the meetings. A carnival committee was formed at these meetings and a list of stewards was drawn up and agreed upon. The names were proposed and seconded and passed at these meetings and various suggestions as to the running of the carnival were made and considered. Mr. Terence Henry Forde was proposed and appointed chief steward. There is not a scintilla of evidence that the carnival committee was appointed for the mere purpose of advising or assisting the nuns in the running of the carnival, nor is there any evidence that they or the stewards, so appointed, were agents of the nuns. The injury to the plaintiff occurred on the last day of the carnival and there is no evidence that any nun took part in the control or management of the carnival at any time during its progress. In the circumstances we are of opinion that the only reasonable inference from the evidence is that the carnival was carried on, managed and controlled by the carnival committee and stewards appointed at the meetings to which I have referred, and we are further of opinion that it would not be competent for a jury to hold that the nuns took any part in such management and control. Indeed, this seems to have been the view of the plaintiff, as appears from his evidence, at questions 608 and 609.
608. Q. “So that the carnival was being run by the committee and the amusements were being run by Mcmahon?”
A. “Yes.”
609. Q. “The only interest the Convent had was to receive from the committee any money that the committee might make out of the carnival. You knew that, didn’t you?”
A. “Yes.”
Having regard to the object for which the carnival was being held, it is easy to understand why the nuns took such an active part in the launching of the project and why they paid the costs of the advertisements and we are of opinion that neither of these matters is inconsistent with, or qualifies in any way, the opinion which we have formed as to the persons who carried on and managed the carnival.
In his statement of claim the plaintiff alleges that he, the plaintiff, being expressly invited and required so to do by the first-named defendants or their agents, gave his services in attending at and operating the swing-boats. The first two defendants served a notice on the plaintiff requiring particulars as to “the name or names of the person or persons who ‘expressly invited and required’ the plaintiff to give his services at the carnival in attending at and operating the said swing-boats.”
In reply to that notice the plaintiff gave the following particulars:
“(a) The second-named defendant, Mary Constance Ward, known in religion as Mother Joseph.
(b) A member of the Sisters of St. Louis and known in religion as Sister Immaculata,
(c) Terence Henry Forde.”
In their defence, the said defendants say in paragraph 5:
“The said defendants deny that they or either of them or any agent of theirs or of either of them invited or required the plaintiff to give his services at the said carnival or to attend at or operate swing-boats.”
Counsel for the plaintiff contended that this defence merely put in issue the question whether any of the said named persons in fact invited or required the plaintiff to give his services and that if this fact were proved the agency was admitted. We cannot accept this contention. In our opinion, on a fair reading of the defence, it put in issue both the fact of the invitation and the question of agency.
The plaintiff was, on the date of the accident and for about two years previously, employed by the St. Louis nuns at Kiltimagh as a farm labourer. His wages, at the time of the accident, were £3 per week and his normal working hours were from 8 a.m. to 6 p.m. He says that whenever he did any extra work he was paid overtime. On the day of the accident, he says that one of the nuns, viz., Sister Immaculata, told him to go to the carnival that night and help. Nothing was said about payment; but the plaintiff says that he expected to be paid for the night’s work.
Plaintiff went to the carnival and arrived there about 7.45 p.m. He saw the said Terence Henry Forde, who was the steward that night. Mr. Forde told him to go to the small swing-boats. Plaintiff went there and he says that there were people in these boats; but there seemed to be nobody in charge of these small boats and nobody to collect money for them. He attempted to stop one of the boats and, in doing so, sustained the injury of which he complains.
It seems that the boats are suspended on bars which are connected with the boats at the bottom by bolts. The boat is held in position by a nut and immediately outside the screw there is a hole for a split-pin to prevent the nut becoming detached. On the night in question the nut was held in position, not by a split-pin but by a wire nail, and there was evidence that such a nail was dangerous not only to the person operating the boat but even to persons entering the boat.
When the plaintiff attempted to stop the boat, his right hand was caught and torn by this wire-nail and the plaintiff was seriously injured.
As against the nuns the plaintiff bases his cause of action on two alternative grounds, viz., 1, on the relationship of master and servant, and 2, on the doctrine of invitation.
Plaintiff says that he was in the employment of the nuns and he relies on the doctrine, enunciated in such cases as
Wilsons and Clyde Coal Co. v. English (1) that the employer owes a duty to his employee to take certain precautions for his safety and protection. In particular, it is the duty of the employer to provide proper machinery and appliances. This doctrine has not been questioned and may be accepted as good law.
I shall assume, for the purpose of this decision, that the plaintiff was, at the time of the accident, in the general employment of the nuns. It still remains to be considered whether the nuns can and should be considered to be his employers for the particular purpose on which the plaintiff was engaged at the time of the accident. In our view there is no evidence that the nuns, by themselves or their agents, either took any part in the control or management of the carnival or that they had any right or authority to do so, and we are of opinion that, on the evidence, as soon as he entered Benson’s field and reported to the steward in charge, plaintiff passed, for the time being, out of the control of the nuns and into that of the committee or other persons who ran and managed the carnival. For these reasons we are of opinion that, at the time of the accident, the nuns were not the employers of the plaintiff for the purpose of the foregoing doctrine and that they owed no duty to the plaintiff to see that the machinery and appliances used at the carnival were safe and adequate. We are, accordingly, of opinion that the plaintiff’s claim, as against the nuns, in so far as it is based on the relationship of master and servant, cannot be substantiated.
Plaintiff then relies on the doctrine laid down in Indermaur v. Dames (2). He says that the nuns were, or should be held to be, the occupiers of the field, that he went there as invitee and that they failed in the duty which, as occupiers, they owed to him. In our opinion, this cause of action fails. Notwithstanding the steps taken by Mother Joseph with a view to obtaining the use of the field for the purpose of the carnival, we are of opinion that the nuns were not, and on the evidence could not be held to be, the occupiers of the field, and, accordingly, that they did not owe any duty to the plaintiff as such alleged occupiers.
For these reasons we are of opinion that, as against the first two defendants, the plaintiff’s action failed and that the direction of the trial Judge was properly given.
It is now necessary to consider the plaintiff’s claim as against the last-named defendant, Michael Mcmahon. It appears that this defendant was the owner of the mechanical contrivances, including swing-boats, used at the carnival, and that it was his business to hire out these contrivances for such a purpose. We have no express evidence of the contract under which the machines were supplied; but on the evidence that was adduced, and in the absence of any evidence from Mr. McMahon, we are of opinion that it would be open to the jury to hold that they were supplied by him for reward. He was himself present during the carnival and his employees took part in the management of the machines. It is, however, clear from the evidence that he did nat supply sufficient employees of his own to manage all the machines and, in our view, it would be open to the jury to hold, on the evidence produced at the trial, that it was part of the arrangement that the persons running the carnival should supply other men to assist in the working of the machines. On the night in question the plaintiff was directed by Mr. Forde, the steward in charge on that night, to go and assist at the boats. He did so and was injured when attempting to stop one of the boats. We are of opinion that Mr. McMahon owed a duty to the plaintiff and that there was evidence from which a jury might properly hold that he failed in that duty. Accordingly, we are of opinion that the learned trial Judge’s direction in favour of this defendant was improperly given and that, as against him, the case should have gone to the jury.
The plaintiff’s appeal against the judgment entered for the defendants, Elizabeth Owens and Mary Constance Ward, will be dismissed. The appeal against the judgment entered for the defendant, Michael McMahon, will be allowed and the judgment set aside and we direct a new trial against this defendant.
Marek -v- Agatha Mocior T/A Summito Garden Architecture & Ors
[2017] IEHC 763 (18 December 2017)
JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 18th day of December, 2017.
Introduction
1. This is an action for damages for personal injuries and loss arsing from an accident which occurred on the morning of the 17th September, 2012, in the garden of the second Defendant’s home at 32 Neville Road, Rathgar, Dublin, 6.
2. The Plaintiff is a Polish national with a limited command of English. He commenced employment with the first Defendant about six months before the accident which occurred while the Plaintiff was attempting to pull a broken branch down from a tree. He had reached the branch by using a step ladder taken from the householder’s garage. One of the matters in issue germane to the potential liability of the second Defendant for the accident was whether he had given permission for use of the ladder in connection with the gardening work.
3. A co-employee of the Plaintiff, known to him as ‘Pawel’, was in charge of operations on site. He held the ladder while the Plaintiff climbed up to see whether the broken branch could be pulled free or would have to be cut down. The height of the branch above ground and the dimensions of the ladder were such that the Plaintiff had to stand on the second last step from the top before he could reach and grab hold of the branch.
4. For reasons which were never satisfactorily explained, Pawel let go of the ladder without telling the Plaintiff who, unaware, continued to pull on the branch which he was unable to free. In the process the ladder became unstable, it fell one way and the Plaintiff the other. He landed awkwardly on the ground as a consequence of which he sustained bilateral wrist injuries, a transient injury to his right ulnar nerve and a minor head injury.
5. Although both Defendants delivered full Defences, the first Defendant did not participate in the trial. On the 18th October, 2006, she wrote to the Plaintiff’s solicitors informing them that she would not be defending the case as she had moved to live abroad and could not afford legal representation. The Court was satisfied at the outset of the trial that the first Defendant had been notified and was aware of the hearing date. She did not appear and was not represented. The claim against the second Defendant was fully contested.
Background
6. The first Defendant carried on the business of landscape design and garden maintenance styling herself ‘Summito Garden Design’. In the year or so before the accident she had provided gardening services to the second Defendant and his wife. Although the Plaintiff was employed to work as a general operative in landscape gardening, he had not received any formal health and safety training appropriate to his duties. Although he had an established work record and a good work ethic, immediately before he took up employment with the first Defendant he had worked as a security guard; he had never previously worked in the horticultural sector.
7. On any view of the evidence it may safely be stated that the first Defendant failed to comply with the relevant provisions of the Safety, Health and Welfare at Work Act 2005 and the Safety, Health and Welfare at Work (General Application) Regulations, 2007, about which more later. In so far as it may be said that he had received any training at all in landscape gardening, when the Plaintiff started working for the first Defendant she informed him that he would learn on the job and assigned him to work with Pawel, whom he understood was a trained and experienced landscape gardener.
Accident locus
8. The second Defendant’s home consists of a substantial and long-established semi-detached house occupying a corner site within a large mature garden. At approximately 9 am on the morning of the accident, Pawel and the Plaintiff arrived at the premises to carry out gardening maintenance work. A man, the identity of whom was never established but whom they took to be the owner of the property, let them into the garden via a side entrance. They started to unload gardening equipment, from a van which included a ladder and a hedge/ branch trimmer.
Permission to use the Householder’s Ladder
9. The second Defendant’s evidence was that he had left home at 8.30 am to go on a school run before either the first Defendant or her employees arrived on site and was unaware that the household step ladder was wanted for use in connection with the gardening work due to be undertaken that day.
10. Shortly after the Plaintiff and Pawel arrived on site, the first Defendant joined them and gave instructions concerning their work duties. The Plaintiff witnessed but was unable to hear a conversation between the first Defendant and a person, whom the he took to be the householder, as a result of which the first Defendant gave instructions to put the company ladder back into the van and to use the householder’s ladder, which was kept in a garage adjoining the house. His understanding of why the householder’s ladder was to be used was because the firm’s ladder was required for another job elsewhere.
11. There was no evidence that the first Defendant inspected or examined the house holder’s ladder for the purpose of satisfying herself that it was suitable and safe for use by her employees in connection with the work they were to undertake in the garden. The first Defendant having departed, the householder’s ladder was taken from the shed and both men proceeded to get on with their work.
Conclusion on permission
12. At a post accident joint engineering inspection, the second Defendant’s wife was reported to have said that she had no memory of having given permission for use of the ladder; she was not called as a witness. On the Plaintiff’s evidence, the instructions to put the employer’s ladder back into the van and to use the householder’s ladder were given contemporaneously with the conversation between the first Defendant and the householder; in the circumstances and absent any evidence to the contrary, I am satisfied that it is likely permission was given to use the ladder in connection with the gardening work in general. The Plaintiff’s initial recollection was that the conversation had taken place between the first Defendant and the man who had let them into the property; however, under cross-examination he accepted that he could not be sure about that after all. For reasons given later, it is more likely permission was given by the second Defendant’s spouse.
The Ladder
13. Shortly after the accident the ladder was photographed by a representative of the second Defendant’s insurer. These photographs (which were no longer available at the time of trial) were said to show that the rubber inserts in the feet of the ladder stiles were not in good condition and had partially migrated into the stiles. The ladder was subsequently examined and reported upon by engineers retained by the Plaintiff and the second Defendant, at which stage the rubber inserts were missing altogether.
14. During a joint engineering inspection the Plaintiff positioned the ladder under the tree where the accident had occurred. The accident locus with the ladder in position was then photographed. The purpose dimensions and capabilities of the ladder were not in question; it was designed to be used as a full length or as an A-frame step ladder, the format in which it was being used by the Plaintiff. The engineer’s reports and photographs were admitted in evidence.
15. The distance from the ground to the top of the ladder and to the step on which the Plaintiff was standing was measured by Mr. Conor Murphy, the Plaintiff’s engineer, at approximately 1.6 and 1.2 metres respectively. The ladder was designed and manufactured with the option of having stabiliser bars fitted to provide additional stability when it was being used in certain situations. There was no evidence that stabilisers had been fitted at the time when the ladder had been borrowed some time previously from a local community organisation. It had been used in the garden without mishap for some fifteen or twenty minutes before it was deployed for the purposes of taking down the broken branch.
The Accident Circumstances
16. Neither the Plaintiff nor Pawel could tell from the ground whether the dead branch was merely resting on adjoining branches or whether it was still attached to the tree. In order to ascertain this and whether it could be pulled free or would have to be cut down, Pawel instructed the Plaintiff to climb up the ladder, which he held, as the Plaintiff did as he was instructed.
17. The ladder was so positioned under the tree that on reaching the second last step the Plaintiff had to lean out and upwards in order to reach and grab hold of the dead branch. When he attempted to pull the branch free he and ladder fell. It was not until he had gathered himself after the accident and saw Pawel standing some three metres or so away from him, that he realised he had let go of the ladder.
18. There was some controversy as to whether the hedge/branch trimmer which had been brought on site could have been used to cut the branch down, however, I am satisfied that by the time it came to remove the dead branch, the hedge trimmer was no longer working; it had overheated and had run out of petrol.
19. Both engineers gave evidence at the trial. There was no dispute about the suitability of the ladder as manufactured for general domestic use in or around the home. However, there was an issue as to whether or not the ladder should have been fitted with stabiliser bars for use in the particular circumstances and whether or not the poor condition of the rubber feet and the absence of stabiliser bars had caused or contributed to the accident.
20. Mr Murphy’s evidence was that these factors were contributory and that the ladder should have been taken out of use until returned to manufactures specifications. In his view, it should not have been lent to the first Defendant for use by her employees until that was done. While the second Defendant’s engineer, Mr. Cathal Maguire, agreed with the general proposition that rubber feet in good condition and stabilizer bars would provide additional stability in certain situations and that the ladder was unsuitable for the use to which it had been put, he had a very different opinion as to why this was so.
21. In his view the unsuitability arose from other factors that had nothing to do with the deficiencies identified by the Plaintiff’s engineer. Accepting that the situation may well have been different had the ladder been used in other circumstances, such as on a wet footpath or patio, the unsuitability in this instance arose by virtue of the purpose and use to which the ladder had been put rather than because the rubber feet were in poor condition and/or stabilisers had not been fitted.
22. His explanation was that there were a number of factors involved in the accident, namely, the positioning of the ladder relative to the branch, the height of the branch above ground level relative to the height of the top of the ladder, the necessity of having to stand on and to the left of the second last step before the branch could be reached, the lateral forces generated when the Plaintiff leaned out caught hold of and pulled on the branch and the instability which arose when Pawel let go of the ladder. Significantly, in his opinion, these constituent factors were entirely consistent with the Plaintiff’s description of the accident circumstances with the ladder falling one way and he the other.
Conclusion on Accident Circumstances
23. I accept the Plaintiff’s evidence concerning the moments leading up to, at the time of and immediately after the accident and find that the expert evidence which best explains the cause of the accident as described by the Plaintiff is that given by Mr. Maguire. While the absence of stabilisers and the apparently poor condition of the rubber inserts in the foot of the ladder stiles may well have contributed to the cause of an accident in other circumstances, in my judgement such are non contributory to the cause of the accident which occurred. Crucially, I am satisfied on the evidence of Mr Maguire that had Pawel continued to hold the ladder it is highly likely that stability would have been maintained and the accident would have been avoided; the Court so finds.
Liability; the case against the first Defendant.
24. The Plaintiff brings these proceedings against the first Defendant in negligence, for breach of statutory duty and breach of contract, particulars of which are set out in the endorsement of claim which will not be repeated or summarised here. Suffice it to say that the thrust of the case is that the Plaintiff was required to undertake his duties without proper training, supervision, competent co-employees or equipment and was instructed to carry out a task which was dangerous with equipment which was inappropriate, inadequate and unfit for the purpose required; in so far as there was any system of work, that was unsafe.
25. The relevant provisions of Article 114 of the 2007 Regulations provide: –
“An employer shall ensure that –
(a) a ladder is used for work at height only if the risk assessment has demonstrated that the use of more suitable work equipment is not justified because-
(i) the level of risk is low, and
(ii) the duration of use is short, or
(iii) existing features at the place of work cannot be altered,
(b) any surface upon which a ladder rests is stable, firm, of sufficient strength and of suitable composition to support safely the ladder, so that the ladder’s rungs or steps and any loading intended to be placed on it remain horizontal,
(c) a ladder is so positioned as to ensure its stability during use,
(d)
(e) a portable ladder is prevented from slipping during use by –
(i) securing the stiles at or near their upper or lower ends,
(ii) effective anti-slip or other effective stability devices, or
(iii) any other arrangement of equivalent effectiveness,
(f) a ladder used for access is long enough to protrude sufficiently above the place of landing to which it provides access, unless other measures have been taken to ensure a firm handhold,
(g)
(h) a mobile ladder is prevented from moving before it is used,
(i)
(j) a ladder is used in such a way that –
(i) a secure handhold and secure support are always available to the employee and
(ii) the employee can maintain a safe handhold when carrying a load unless, in the case of a step ladder, the maintenance of a handhold is not practicable when a load is carried, and the risk assessment has demonstrated that the use of a stepladder is justified because –
(I) the level of risk is low, and
(II) the duration of use is short.”
Conclusion on Liability; the case against the first Defendant.
26. As already stated earlier, on any view of the evidence and having regard to the findings made, I am satisfied that the Plaintiff has discharged the burden of proof of establishing on the balance of probabilities that the first Defendant was guilty of negligence, was in breach of statutory duty, and was in breach of contract. The Plaintiff received neither safety information nor training in respect of his work duties as required by the Act of 2005 and the 2007 Regulations nor was he provided with a safe system of work, adequate supervision, competent fellow employees or appropriate equipment to enable him carry out his work safely.
27. The first Defendant was a responsible for selecting and supplying the equipment for use by her employees in the course of their employment. Whether purchased, hired or borrowed, it was her responsibility to ensure that the ladder selected was suitable and appropriate to the task or tasks in connection with which it was to be used and that it was not utilised in circumstances, as pertain here, which otherwise rendered its use unsafe.
28. Furthermore, the first Defendant is vicariously liable for the negligence of the Plaintiff’s co-employee, Pawel, who, once she departed, was in charge of operations in the garden. It was he who directed the utilisation of the ladder in the manner described, who instructed the Plaintiff to climb up the ladder to ascertain whether the branch could be pulled free or would have to be cut down, who permitted the Plaintiff to stand near the top as he attempted to pull the branch free and who let go of the ladder at a time when he knew or ought to have known that by doing so it would likely result in the ladder becoming unstable thus exposing the Plaintiff to the risk of falling, a risk which had been recognised by him when he held the ladder as the Plaintiff began to climb.
Liability; the case against the second Defendant
29. The Plaintiff’s case against the second Defendant is brought in negligence, nuisance, and for breach of the provisions of the Occupiers Liability Act 1995.
30. The kernel of the case pleaded is that the second Defendant supplied caused or permitted the use of a defective ladder which was unfit for gardening purposes, including the removal of the dead branch from the tree and in failing to take reasonable care for the safety of the Plaintiff, to supervise the premises adequately and by creating, causing, permitting or maintaining a hidden trap or danger.
31. The second Defendant gave his evidence in a straightforward and truthful manner; he impressed me as a witness on whose evidence the Court could rely. The ladder in question was not his property; it had been borrowed from a local community organisation sometime previously. Although aware that the first Defendant was due to the carry out gardening on the day, I accept the second Defendant’s evidence that he had already left the premises to go on a school run before the Plaintiff, Pawel and the first Defendant had arrived on site. It follows that the second Defendant was unaware of the request for permission to use the ladder on the morning of the accident.
32. While I accept that a conversation did take place, on my view of the evidence, it is more likely that this was between the second Defendant’s wife and the first Defendant. Whether or not the second Defendant was vicariously liable for any negligence on the part of his wife was not advanced or argued but for the reasons which follow, even if there was such a liability she would not have been negligent nor would the second Defendant have been primarily responsible had he given permission.
33. Although it maybe inferred from the request for permission that the second Defendant’s wife knew that the ladder was going to be utilised in connection with the gardening work, it does not follow from the conversation, the content of which is unknown, that the second Defendant’s spouse had been made aware of, had discussed and had sanctioned the utilisation of the ladder for any particular work or task.
34. In my judgment it is improbable, indeed, highly unlikely, in circumstances where the first Defendant was retained to provide gardening services, that there was any discussion about the way in which those services were to be provided, directed or carried out, rather the first Defendant, who was in every respect an independent contractor, was likely left to get on with the work for which she had been retained.
35. It is not in issue that the Plaintiff was a visitor on the premises within the meaning of the Occupiers Liability Act 1995 (the Act). The duty of care owed by the occupier to a visitor is provided for by s. 3 of the Act as follows: –
“(1) An occupier of premises owes a duty of care (“the common duty of care”) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.
(2) In this section “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
36. I pause here to observe that the statutory duties, liabilities and rights established by the Act in substitution for those at common law are confined to existing dangers and thus are concerned only with the static condition of the premises. See s 2 (1) of the Act; see also Fitzgerald v. South Dublin County Council [2015] IEHC 343. It follows that the duty of care under common law negligence principles in respect of the acts or omissions (often referred to as ‘activities’) of the occupier upon the premises remain unaffected.
37. Whether the obligations on the occupier arise under the Act or at common law, these are not absolute. Subject to other considerations which arise in circumstances of trespass or recreational use, where the entrant is lawfully on the premises, the obligation of the occupier is to behave reasonably whether that is in relation to activities on or the static condition of the premises. As Peart J. observed in Vega v. Cullen [2005] IEHC 362, there is no meaningful distinction between the common law duty of care and the ‘common duty of care’ under the Act.
38. Everyday householders leave independent contractors whom they have retained to provide a service to get on with the work. I dare say, other than perhaps having an interest in being satisfied as to what is on offer and whether that can be delivered, a householder would be surprised, if not astonished, at the proposition that retaining an independent contractor carried with it a responsibility, shared or otherwise, to ascertain the experience or qualifications of the contractor or the contractor’s employees, to direct and control the work or service or to ensure that appropriate training, supervision, equipment or materials would be provided to enable the work or service to be carried out safely; such is not the law.
39. Clearly, where the circumstances and nature of the relationship is one which attracts the application of the Safety Health and Welfare at Work Act, 2005 and the Safety Health and Welfare at Work (General Application) Regulations 2007, different considerations would apply but none such involving the second Defendant was established on the available evidence.
40. That is not, however, the end of the matter. Quite apart altogether from the common law and statutory duties owed by an independent contractor to the contractor’s employees, a duty of care on the part of the householder to the independent contractor and the contractor’s employees may arise at common law in accordance with the principals enunciated by Lord Atkin in Donohue v. Stephenson [1932] AC 562.
41. Independently but concomitant with such a duty, the householder qua occupier also owes ‘the common duty of care’ under the Act in respect of existing dangers on the premises save that liability for such will not attach to the occupier in the circumstances specified by s. 7 of the Act, where the danger was caused or created by the negligence of the independent contractor.
42. It follows that where a householder provides equipment to an independent contractor with the intention that it is to be used for the purposes of executing the particular work, task, or other service for which the contractor has been retained in circumstances where the householder knew or ought to have known that the equipment was defective and/or was unsuitable for such work, task or service, a duty of care at common law arises the breach of which renders the householder liable in damages for any injuries and/ or loss which results.
Conclusion on Liability of the second Defendant
43. In so far as it could be said that the absence of stabilisers and the poor condition of the rubber inserts at the foot of the styles constituted defects in a ladder, which was otherwise sound, these were not on my view of the evidence, for the reasons already stated, causative of the accident. Rather other factors were responsible, including the way and manner in which the ladder was utilised and the instability which arose when no it was longer secured factors for which the first Defendant is solely liable.
44. For completeness, I should add that had the absence of stabilizers and/ or the poor condition of the rubber feet been causative defects in the occurrence of the accident, the second Defendant cannot bear any responsibility at law for the consequences in circumstances where, as here, no duty of care arose on his part. He was never asked for permission, never gave permission and had no reason to believe that the ladder would be used in connection with the work to be undertaken by the first Defendant’s employees.
45. Finally, the Court finds that there is no convincing evidence upon which to found a conclusion that the accident was caused by an existing danger in the static condition of the premises. The gravelled area of ground on which the ladder was placed was neither unusual in a garden nor was it a hazard or danger in itself or in combination with the placement of the ladder. Accordingly, the Plaintiff has also failed to establish a breach of the common duty of care under s. 3 of the Act.
Ruling
46. For all of these reasons and upon the conclusions reached the law requires that the Plaintiff’s claim against the second Defendant must be dismissed. The Court will so order.
Injuries and Loss
47. The Plaintiff suffered serious bilateral wrist injuries together with a minor head injury. He was brought to the A&E department of St Vincent’s Hospital, Dublin, where he ultimately came under the care of Mr. John Rice, Consultant Orthopaedic Surgeon, who prepared a number of medical reports for the assistance of the Court. These are dated 11th March, 2013, 14th April, 2014, an addendum 28th April, 2014, a final report 24th August, 2015, and a letter dated 10th November, 2015.
48. The Plaintiff was also examined on behalf of the second Defendant by Mr Colin Riordan, Consultant Hand and Plastic Surgeon, who also prepared a number of reports. These are dated 17th November, 2014, 21st July, 2015, and 19th October, 2016. The content of all of the medical reports was admitted as the medical evidence in the case.
49. Immediately after the fall the Plaintiff was momentarily dazed and became aware of very severe pain which developed in both wrists. X-rays taken at St Vincent’s Accident and Emergency Department disclosed bilateral distal radial inter-articular fractures together with a fracture of the left Triquetral bone. Both wrists were immobilised in plaster of paris back slabs following which the Plaintiff was discharged home with instructions to return the next day for surgery. However, he had to return to hospital earlier than arranged because of increasing symptoms. He was taken to the operating theatre next morning where he had surgery carried out under general anaesthesia.
50. The fracture of his right wrist was reduced and held with K wires. The left wrist fractures were treated by open reduction and internal fixation with a volar plate. Both wrists were immobilised in protective casts and the Plaintiff was discharged home with instructions to return to the outpatient clinic for follow up.
51. He wore bilateral forearm and wrist casts for a period of seven weeks. On the 7th November 2012, the pins which had been used to fix the right wrist fracture in place were removed. Thereafter, the Plaintiff underwent a course of physiotherapy at St. Vincent’s hospital over a three-month period to help him regain movement in his wrists. The Plaintiff advised Mr Riordan at medical review on the 11th July, 2015, that he had had no further treatment to either wrist since that time.
Vocational Consequences of the Injuries
52. With regard to vocational implications of the injuries it was suggested in the course of cross examination that prior to the accident the Plaintiff had been given notice of termination of his employment, a suggestion which he rejected, though his employment was terminated shortly after the accident, an event which he attributed to his inability to work as a consequence of his injuries. Apart from one short period, the Plaintiff was unemployed from the date of the accident until the beginning of February, 2017 when he secured a job in light manufacturing. He brings a claim in these proceedings for loss of earnings up until that time to which I will return later.
Physical Consequences of the Injuries.
53. Apart from the sequelae of pain swelling and discomfort in his wrists arising from the fractures, the Plaintiff, who is right hand dominant, also experienced numbness around the right little finger and reduced sensation in the right ring finger, neurological sequelae which Mr. Rice attributed to a transient injury of the right ulnar nerve.
Scarring
54. The surgery resulted in two 0.3 cm pin entry wounds over the dorsum of the right wrist and a 7.5 cm wound running along the volar aspect of the distal forearm at the site of surgery to plate the fracture of the left wrist. The Plaintiff has been left with fully healed non-tender scarring at the site of the operative wounds which is permanent and visible at conversation distance but about which, to his credit, he makes little if any complaint.
Wrist mobility
55. The fracture injuries had an acute adverse effect on wrist mobility particularly in the early stages of recovery and rehabilitation; an improvement in wrist movement was achieved following physiotherapy treatment but when the Plaintiff was examined by Mr. Riordan in July, 2014 nearly two years after the accident, clinical examination continued to demonstrate stiffness and reduced ranges of motion in both wrists. Active wrist extension was reduced to 50 degrees in the right and to 55 degrees in the left wrist compared with a normal value of about 70 degrees. Active flexion was reduced to 50 degrees in the right and 40 degrees in the left wrist compared with a normal value of about 70. There was no improvement in passive wrist movement and the Plaintiff was continuing to experience discomfort at the extremes of movement. Supination, that is the movement turning the hand side upwards, lacked 15 degrees in both wrists whereas pronation, which is the opposite movement, turning the hand palm side downwards, was normal. Side to side wrist movements, that is radial ulnar deviation, was also normal.
Sensory impairment
56. Mr. Riordan also confirmed Mr. Rice’s findings of partial sensory impairment in the volar aspect of the little and ulnar half of the ring finger. He noted, however, that there was no muscle wasting or weakness present in the hand though examination of the right elbow confirmed the presence of a tender spot behind the medial epicondyle suggestive of the presence of ulnar nerve entrapment in the cubital tunnel.
There was evidence of continuing partial sensory impairment in the volar aspect of the little finger and ulnar side of the ring finger.
Functional loss and implications for employment
57. Mr. Riordan assessed the functional loss in each wrist at 5%. He also expressed an opinion on the vocational implications of the injuries for the Plaintiff. While he accepted that certain tasks involving strenuous use of the wrists and hands might result in some ongoing discomfort, his opinion at the time was that the disabilities were not severe enough to prevent the Plaintiff returning to his pre-accident occupation as a gardener, a view with which the Plaintiff took issue and in which he was supported by Mr. Rice.
58. The inter-articular nature of the fractures brings with it likely long-term consequences in the form of post traumatic osteoarthritis the risk of which Mr. Riordan assessed at 30%, though this was unlikely to manifest itself for ten years or thereabouts. When Mr. Riordan last reviewed the Plaintiff on the 4th October, 2016, he noted a significant improvement in the return of sensation to the right little and ring fingers, however, the Plaintiff continued to experience intermittent pain in both wrists, generally at night or after strenuous use or in cold weather. The Plaintiff also reported experiencing a sharp reflex pain when lifting something with his hands into an elevated position and of ongoing swelling in his left wrist together with a sensation of itchiness
59. Most recent clinical examination by Mr Riordan disclosed continuing residual stiffness in both wrists. Initial X-rays demonstrated significant displacement and disruption of the articular margin bilaterally, but more marked on the left side. In his updated report Mr Riordan expresses the opinion that while the fractures had healed reasonably well, a degree of stiffness and discomfort, particularly with strenuous use, was to be expected.
60. Significantly, he altered his view with regard to the Plaintiff’s capacity to return to heavy manual work of any sort, including landscape gardening. Such work would likely involve repetitive strenuous use of the hands which would cause increasing discomfort. That said, certain types of lighter manual work would be possible.
61. It was apparent from his evidence and, indeed, from the medical reports, that the Plaintiff was assiduous in complying with hand strengthening and mobilising exercises advised by his physiotherapist. Nevertheless, when medically reviewed and examined by Mr. Rice in February, 2017 the Plaintiff was continuing to suffer from stiffness in his wrists, difficulty with lifting, and ongoing end of range movements in both wrists.
62. When the Plaintiff was examined by Mr. Roger Leonard, Vocational Consultant retained on behalf of the second Defendant in September 2016, the Plaintiff’s grip strength in each hand was measured and he noted that this was reduced on the right side to 59% and on the left to 51% of the average score for a man of the Plaintiff’s age. Mr. Leonard considered the results to be a significant reduction in the Plaintiff’s grip bilaterally, which he did not think was justified on the medical opinion available to him at the time but that was before the more recent medical examinations. However, it is clear that by then the Plaintiff’s grip strength in both hands was described as good with no evidence of wasting of the muscles in either hand.
63. Otherwise the end of range restriction in dorsal flexion and volar flexion in the left wrist and flexion and supination of the right wrist remained unchanged. Mr. Rice noted that the Plaintiff was still suffering from recurrent mechanical pain in both wrists. In his view the Plaintiff was likely to continue to experience the reported symptoms in the long term.
Prognosis
64. Both surgeons accept that the Plaintiff is at risk of developing degenerative arthritis in both wrists; Mr. Riordan assessed the risk at 30% while Mr. Rice describes it as “significant”. The degree of pain and discomfort associated with that condition over and above the symptomology currently experienced is not medically quantified but having regard to the nature of the condition and the importance of the wrist to hand movements it seems reasonable to infer that additional symptomology will in all probability arise from the development of that condition in due course.
The Plaintiff’s employment history post-accident
65. The Plaintiff gave evidence in relation to his injuries consistent with the reporting set out in the medical and vocational reports, which were also admitted. I am quite satisfied that the Plaintiff had a strong work ethic and that he attempted to seek out alternative employment once he had sufficiently recovered to do so, albeit not in any occupation involving heavy manual work. He did secure one job which involved painting metalwork but this caused a serious aggravation of his symptoms and he had to give it up. He was unable to live in Dublin because of his economic circumstances and moved with his wife to live in Castlerea, Co. Roscommon.
66. I have no doubt that he did whatever he could to rehabilitate himself and that having done so he ultimately secured employment in February 2017 which consists of light work assembling plastic components. Although this involves constant hand and wrist movements, the Plaintiff’s employers are very accommodating and in this regard his evidence was that he is permitted to take a break whenever his work duties result in the onset of discomfort or pain in his wrists.
67. I was impressed by the Plaintiff’s fortitude and commitment to get on with his life as best he can. He has acquired a driving licence and freely admits that with the passage to time and rehabilitation his symptomology has improved significantly from that experienced over the first year or two following the accident. Nevertheless, he still has the residual symptoms as described in the medical reports, with end of range limitation of wrist movements and an inability to lift objects into an elevated position, symptoms which have reached a plateau and are likely to remain at current levels long term. Any form of heavy duty task provokes pain, however, the Plaintiff felt he could cope with and continue in his present employment.
Claim for Special Damages.
68. The Plaintiff’s claim for special damages is confined to loss of earnings from the 20th September 2012 until the 7th February, 2017. The net amount of the claim is €28,374.20. Medical expenses are claimed in the sum of €800 in respect of an MRI scan and consultation fees with Mr. Rice.
69. The Plaintiff was paid injury benefit until the 16th March, 2013, at which stage he applied for and obtained Jobseeker’s Allowance. It follows that he was declaring himself available and fit for work, albeit not in an occupation which would involve heavy manual duties. Apart altogether from the limitations imposed by his injuries, by the type of work he could undertake and by his poor command of English, it is clear from the vocational reporting that the move to Castlerea also impacted negatively on his prospects for securing suitable alternative employment.
70. At the time of the accident, the Plaintiff was paid €10 per hour. His average earnings for the seven months up to and including September 2012 was €300 per week. He was paid by the hour and the hours he worked varied from week to week. The Plaintiff accepted that gardening work was seasonal. No evidence was led as to the level of work which might likely have been available to him over the course of the winter but the Plaintiff was quite adamant that there would have been some work available to him, albeit at a reduced level. I accept his evidence in this regard.
71. It follows that but for the injuries it is likely his average weekly earnings would have been considerably less over the winter months after the accident until the following Spring than the average weekly earnings from that time until the following Autumn. As it is, the Plaintiff was paid Injury Benefit from the 20th September, 2012, until the 16th March, 2013 in the sum of €4,794.03, a sum which, in my judgment, it seems reasonable to infer would fairly approximate to the reduced level of earnings which he was likely to have been paid but for his injuries over the Winter of 2012 until the following Spring. Accordingly, and having regard to the amount of injury benefit paid the Court finds that no loss of earnings arises in respect of this period.
72. Turning to the claim from the 16th March, 2013, until 7th February, 2017, Job Seekers Allowance was paid from the 1st March, 2013, until the end of January, 2017 in the aggregate sum of €6,631.77. Having regard to the medical evidence and the the fact that he was declaring himself fit for work as a consequence of claiming Job Seekers Benefit, I am satisfied that the Court is warranted in approaching the claim for loss of earnings for that period by way of an award of general damages for diminution in capacity to carry out heavy manual work, with the amount paid in respect of Job Seekers Allowance, being taken into account..
Conclusion
73. Mindful that the Plaintiff’s limited command of English and the move to Castlerea are factors impacting on job opportunity for which the first Defendant is not liable, I consider that a fair and reasonable sum to compensate the Plaintiff under this heading is €5,000.
Conclusion on General Damages
74. I am satisfied on the basis of the medical reports which have been admitted that the Plaintiff sustained a minor head injury, without concussion, together with intra articular bilateral wrist fractures with a transient injury to the right ulnar nerve. No significant sequelae were experienced by the Plaintiff in relation to the minor head injury. A partial loss of sensation and numbness in the little and ring fingers as a consequence of the transient injury to the right ulnar nerve gradually resolved and has now fully recovered. The bilateral wrist fractures are altogether another matter and may properly be categorised as very serious injuries coming within the severe and permanent range of damages specified in the updated Book of Quantum and to which the Court must have regard.
75. Apart altogether from the post operative scarring described earlier and about which the Plaintiff makes little or no complaint but which is permanent, the Plaintiff has been left in the position where his limitation on end of range movement in both wrists with some swelling in the left wrist, bilateral wrist discomfort and intermittent pain, is likely to continue for the foreseeable future. In addition, the Plaintiff is likely to develop bilateral post traumatic osteoarthritis in his wrists in the long term a condition which of itself is likely to be associated with some level of symptomology.
76. Having regard to the findings made and mindful that the Plaintiff’s wrist injuries are bilateral, the Court considers that a fair and reasonable sum to compensate the Plaintiff commensurate with the injuries is €60,000 to date for past pain and suffering and €35,000 for future pain and suffering making an aggregate sum of €95,000 to which will be added the sum of €5,800 in respect of special damages. And the Court will so order.