From: Neil Foster <neil.foster@newcastle.edu.au>
To: Gerard Sadlier <gerard.sadlier@gmail.com>
obligations@uwo.ca
Date: 03/02/2015 01:41:32 UTC
Subject: Re: Vicarious Liability of More Than One Party
Dear Ger;
Thanks for drawing this interesting case to attention. 
On your question as to whether dual vicarious liability is possible, the answer is that certainly so in England (I am not sure of the position in Scotland) since the decision of the UKSC in CCWS v VC [2012] UKSC 56 as quoted here, affirming the previous decision of the EWCA in Viasystems (see the quote in Hickey at [58].) I have previously mentioned my view on a number of occasions that this is wrong as a matter of common law principles, and certainly there is no sign so far that courts in Australia are likely to take this view- in fact in Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 (5 August 2013) http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/250.html  at [23]-[33] Leeming JA held that binding High Court of Australia authority precluded the adoption of the doctrine in Australia. (Special leave to appeal was denied by the HCA in Day v Ocean Beach Hotel Shellharbour Pty Ltd & Anor [2014] HCASL 77 (2 April 2014) http://www.austlii.edu.au/au/cases/cth/HCASL/2014/77.html  although with no detailed comment on the “dual vicarious liability” issue, as denial of liability was perfectly justified on other grounds).
It has to be said that this decision by O’Neill J as a single judge in the High Court of Ireland is odd, however. His Honour notes that a number of quite negative comments about extending the boundaries of vicarious liability were made by the Irish Supreme Court in the earlier decision of O’Keefe v Hickey [2008] IESC 72, yet his Honour here spends most time adopting the remarks of the UK Supreme Court in CCWS. While it is true that there is no formal conflict with the earlier decision (which was about VL of the State for teachers), the broadening of VL here seems to be contrary to the sort of remarks made in the earlier ISC decision. (By the way, can anyone tell me whether the “Hickey” involved in the earlier proceedings is related to the plaintiff in these proceedings? They seem to be on opposite sides, but I may be misreading the decisions.)
In addition, some of O’Neill J’s remarks here reveal the confusion likely to continue to be engendered by the decision in CCWS. At one point his Honour says that the “close connection” test was adopted by the ISC in O’Keefe. The fact is that, as the UKSC is at least clear about in CCWS, there are two “stages” to determining vicarious liability. Stage 1 is to determine whether there is a relationship between the tortfeasor T and the principal P which is accepted by the law as potentially leading to VL. Stage 2 is then to determine whether, in harming the victim V, T was acting “in the course of” that relationship. 
The child sexual abuse cases like Lister and Bazley (and I think Lepore) allow the stage 2 question to be determined by asking whether there is such a “close connection” between the task that T was given and the harm suffered by V that VL should be imposed. But they did not extend the stage 1 set of relationships which allow VL in the first place. These were traditionally mostly confined to employment and commercial “partnership”, with one or two odd “agency” situations (but by no means all agency cases.)
What happened in CCWS, following the EWCA decision in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, was that the UKSC approved an enlargement of the stage 1 test to include “relationships akin to employment”. (And hence, of course, dual vicarious liability, so that both actual employers and “akin” employers could be held vicariously liable.) Yet here in Hickey v McGowan, O’Neill J refers to the “close connection” test as if it applies to both stages. See [64] where, while referring to the “akin” test, concludes that “both aspects of the “close connection” test are, in my view, met in this case.” See also [53] where “the first part of the close connection test” is spoken of when the relationship between T and P is in issue. This mistake means that his Honour can take references to support for “close connection” expressed in the earlier ISC decision of O’Keefe as if they were references to the “akin” test later approved in CCWS, which they clearly were not.
I cannot forbear from remarking on one other aspect of this decision, wearing one of my other hats as someone interested in “law and religion” (see the blog link below if anyone else is interested in this area.) From para [66] O’Neill J discusses the question whether, if the Superior of the Marist Order is to be held vicariously liable, as well as the formal employer of the teacher, then is the Superior personally liable or can the funds of the Order be accessed? While I know it is not a popular decision, and there are good reasons to over-turn it legislatively, the decision of the NSW Court of Appeal in Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117 held that even where a bishop might arguably be held liable for sexual abuse committed by a priest, the trustees of a property trust could not be sued, as they were not the employers of the priest and had no control over him. From this point of view the decision in Hickey v McGowan skates over an important point; although it has to be said his Honour had the similar example of the UKSC in CCWS to follow, which also glossed over the point.
Let me be crystal clear- I think the major religious denominations ought to be held financially accountable for sexual abuse committed by clergy under their control. But I think Ellis was legally correct, and to rectify the decision needs legislation. The Royal Commission into Institutional Responses to Child Sexual Abuse here in Australia has just released an excellent Consultation Paper on “Redress and civil litigation” (see http://www.childabuseroyalcommission.gov.au/policy-and-research/redress ) which makes this sort of recommendation (see eg page 224) which I entirely support. But I don’t think the way to get there is for the court to ignore important principles of civil liability.
Regards
Neil

 
neil foster 
Associate Professor
Newcastle Law School
Faculty of Business and Law


T: +61 2 49217430
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From: Gerard Sadlier <gerard.sadlier@gmail.com>
Date: Tuesday, 3 February 2015 10:57 am
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Vicarious Liability of More Than One Party

Colleagues may be interested in a rather curious decision of the Irish
High Court in an action concerning vicarious liability. The judgment
was given in 2014 but I have only come across it recently.


In Hickey v Mcgowan [2014] IEHC 19, the Irish High Court held both the
provincial of a religious order and the manager of a school (who was
also a member of that order) vicariously liable for sexual abuse
carried out by a member of the order, committed when he was working as
a teacher at the school.

The provincial was held liable as a representative of the order,
following Catholic Child Welfare Society & Ors. v. Various Claimants
(FC) & Ors, a decision of the UK Supreme Court.

The provincial sought to argue that the manager, himself a member of
the order (as noted, wwas vicariously liable.

This curious state of affairs arose because the manager was deceased
and had not been sued. Any claim against him was statute barred.

By virtue of Section 35(1)(i) of the Civil Liability Act 1961, where a
Plaintiff does not sue all the wrongdoers responsible for their damage
and a claim against any such wrongdoer becomes statute barred, the
Plaintiff is to be treated as responsible for the wrong to that
extent.

Thus, in this case the manager's vic seems more appropriate where what
is in issue is direct personal liability e.g. breach of a duty of care
which the manager himself owed.

The attribution of "dual vicarious liability" is also new to me, I
must say - even in cases of borrowed employees, liability generally
attaches to one employer or the other but not both.

This issue is likely to be significant in future claims because claims
against managers and others who Defendants will seek to have held
vicariously liable will often be statute barred.

A link to the decision is here, though one can but hope that it will
be overturned sooner rather than later.


Kind regards

Ger