Dear Colleagues;
Very interesting. Eoin, I must be missing something but I cannot find on the internet the actual judgements of Murray CJ and Denham J where they "concur" in different things. Is the "Notes on Memo" bit the only place where these things are recorded? It is a bit confusing having to navigate to three separate pages to find the separate judgements and then to discover there are still two more somewhere!
It is interesting to see that Hardiman J is so forthright in his disagreement with Bazley, with Lister, and with the majority in Lepore. As you say, it is annoying that Murray CJ has not specified whether he agrees with this aspect of Hardiman J's judgement. But certainly Fennelly J supports the "close connection" test. I guess one would have to say the only clear ratio of the decision is that a teacher who was engaged and dismissed by the local religious authorities, even though his salary was paid by the State, is not in a relationship of "employment" with the State and hence the State cannot be held vicariously liable for his torts.
regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
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University of Newcastle
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>>> Jason Neyers <jneyers@uwo.ca> 9/01/09 2:01 >>>
I post on behalf of Eoin Quill:
Members might be interested in a recent Irish Supreme Court decision on
vicarious liability for sex abuse in a school setting; the ratio was
that the relationship between the state and a teacher was not sufficient
for vicarious liability, due to a lack of sufficient control (state pays
and has certain functions, such as syllabus, inspection of schools etc,
but day to day management is vested in school boards mostly run by the
churches and the history of this is set out in some detail in the
judgments).
The court was divided on the issue of whether Bazley/Lister should be
followed; unhelpfully the CJ concurred with two judgments that offered
different dicta on that point, but were agreed on the absence of
sufficient relationship to the wrongdoer.
Before anyone asks, I have no idea why the plaintiff did not join the
school board or church, as earlier cases showed that they might be liable.
The case is OKeeffe v Hickey & Ireland [2008] IESC 72
Available at
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/cd30c67efce085498025752400396b71?OpenDocument
or
http://www.bailii.org/ie/cases/IESC/2008/S72.html
Eoin Quill
School of Law
University of Limerick.
--
Jason Neyers
Associate Professor of Law &
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435