Acting in the course of employment: Reformed for the greater good or for greater compensation levels?

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Introduction: As McMahon and Binchy propounded, a masters liability for the torts of his servant is the most important instance of vicarious liability.1 Within it lies the ever changing concept of acting in the course of employment. This essay will discuss vicarious liability, describe the role of the title concept in this area of tort law and analyse the recent influx of cases that have shaped this legal concept.

Vicarious Liability: Vicarious liability is the doctrine of law that is prepared to hold one person who is without fault liable for the actions of another. Usually, a person will be found liable for the tort of another if they have a sufficient level of control over the other persons actions. This necessary element of control was evident in the Irish case of Moynihan v. Moynihan.2 In this case the plaintiff, who was two years old at the time of the incident, was injured after she pulled a pot of tea on herself in her grandmothers (the defendants) house. The teapot was negligently positioned on the edge of a table by the defendants daughter. The plaintiff sued her grandmother on the grounds of vicarious liability. The action was successful because, as Justice Walsh stated the necessary element of control was vested in the defendant .3 This decision outlines the control test which is applied to vicarious liability cases, although it is an extreme example. As stated in the introduction, the most frequently dealt with instance of vicarious liability is the liability of employers. Although the idea of imposing liability on a faultless employer for the torts of his employees seems unfair at first, it is founded on logic. As an employer is usually in control of his employees actions and creates the risk of a tort being committed (by employing the tortfeasor), it is justifiable that the he be made liable. Also, as stated by Glofcheski, vicarious liability acts as a lossdistribution mechanism.4 It does this by spreading the cost of compensation through the employee to the employer. He in turn spreads the cost to his customers who pay for his goods or services and insurance companies.

1 2 3 4

McMahon and Binchy, The Law of Torts (Dublin, 2nd ed.,1989) at 753. [1975] I.R. 192. Moynihan v. Moynihan [1975] I.R. 192 at 198. Glofcheski, A frolic in the law of tort: Expanding the scope of employers vicarious liability, (2004) 12 Tort Law Review 118 at 120.

An employer is only liable for the negligent acts of his employees when they are committed during the course of their employment. The situation regarding the concept of acting in the course/scope of employment has changed greatly in recent times. During the past decade, the courts in both England and Ireland have changed the way they deal with this aspect of vicarious liability. Before we can examine the recent alterations to this aspect of vicarious liability we must first look at what is known as the Salmond test or Salmond principle.

The Salmond Course of Employment Test: In order to understand how the courts attitude towards vicarious liability has changed, we must observe the traditional method of determining liability. The Salmond course of employment test is the courts most frequently implemented method of determining the vicarious liability of employers. It was first articulated by John Salmond in his student tort book, in 1907.5 This principle states that an employer will be held vicariously liable for the wrongful acts of an employee that he authorized and also, for an unauthorized mode of completing an authorized act. This ...infelicitous but time-honoured phrase6 has withstood over a century of judicial scrutiny in both Ireland and England. However, its limitations have been exposed by a series of cases involving institutional sexual abuse. As expressed by Butler-Sloss LJ, the courts would traditionally not find liability in the circumstance of an intentional tort, such as sexual abuse.7 If the Salmond test is applied in its traditional manner, an employer will never be vicariously liable for the sexual abuse inflicted by an employee. If an employer authorized the abuse he would be personally liable and sexual abuse could never be seen as within the scope of any form of employment. Recent cases in both Ireland and England have sought to expand Salmonds classic formulation to incorporate a close connection test, as will be discussed.

Sir John Salmond, Salmond on Torts (Sweet & Maxwell, 1st ed., 1907) at 83-84. {Source: Ryan, Making Connections: New Approaches to Vicarious Liability in Comparative Perspective, (2008) 15(1) Dublin University Law Journal 41.} Lord Diplock, Morris v. CW Martin & Sons Ltd [1966] 1 Q.B. 717 at 737. {Source: Glofcheski, A frolic in the law of tort: Expanding the scope of employers vicarious liability, (2004) 12 Tort Law Review 118.} In the field of serious sexual misconduct, I find it difficult to visualize circumstances in which an act of the teacher can be an unauthorized mode of carrying out an authorized act, although I would not wish to close the door on the possibility. Trotman v. North Yorkshire County Council [1998] E.W.C.A. Civ 1208. {Source: Ryan, Making Connections: New Approaches to Vicarious Liability in Comparative Perspective, (2008) 15(1) Dublin University Law Journal 41.}

Vicarious Liability in England: An early vicarious liability case from England is Joel v. Morison8. In this case, the defendants servant ran into the plaintiff with a horse and cart during a detour from the route he was employed to take. The plaintiff suffered a fractured leg as a result of the incident and was subsequently unable to work. He sued the cart drivers master (Morison) for the economic loss he suffered in the six months he was out of employment. The central point of law that was dealt with was whether or not the defendants servant was acting in the course of his employment when he struck Joel. Parke B. concluded that the master was liable because his servant merely took a detour to visit a friend, which he saw to be within the scope of employment. Morison was effectively found liable for a servants tort committed during an unauthorized mode of completing an authorized task, this is the second pillar of the Salmond principle. It was in this case that Parke B. famously quoted that had the defendants servant gone on a frolic of his own9, the master would not have been found liable for the tort committed. This decision was a relatively influential one, not only did it enforce the concept of acting in the course of employment it also introduced the concept of an employee being on a frolic of his own. This concept stated that if an employees actions are seen as being substantially disconnected from the actions delegated to him by his master, there is no liability on the masters part. Parke Bs reasoning in Joel was approved in such cases as Mitchell v. Crassweller10 and Whatman v. Pearson.11

The Salmond principle was seen by the courts in England as being an effective test for determining vicarious liability, up until the last decade. It was an influx of sexual abuse cases put this seemingly sturdy principle off balance. The most prolific of these cases is the case of Lister v. Hesley Hall Ltd.12 In Lister, the plaintiff accused a former warden of a boarding house for Wilsic Hall School, in Doncaster, of committing sexual abuse. The warden was hired by Hesley Hall Ltd to look after the boys living in the boarding house. His tasks included waking the boys up for school, putting them to bed and enforcing various disciplinary measures. Lister sued the wardens employer, Hesley Hall Limited. The legal
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[1834] 6 C&P 501. Joel v. Morison [1834] 6 C&P 501 at 503. [1853] 13 C.B. 237. [1868] 3 C&P 422. [2002] 1 A.C. 215. tortfeasor

issue here was whether or not an intentional tort, in this case sexual abuse, can be seen as being within the scope of the wardens employment. The House of Lords held that it can, and found the defendant was vicariously liable for the acts of sexual abuse committed by the warden. The Law Lords based this decision on the reasoning that there was a sufficient connection between the work that he had been employed to do and the abuse committed. This became known as the close connection test. This decision was a highly significant one, not only did it expand the Salmond principle but it also set a clear precedent for similar cases to be decided on.13 As the House of Lords knew that the classic formulation of the Salmond principle would not find liability, they extended it to be able to find liability in situations such as this. This was done was to target the deep pocket, however, questions have arisen as to the fairness of this extension to the Salmond principle. Was this extension a genuine change for the greater good or were the courts simply manipulating tort law for greater compensation levels? In deciding Lister, the courts took into account the enterprise risk approach taken by the Supreme Court of Canada in Bazley v. Curry.14 This approach states that if there is a close connection between the creation of an enterprise risk and the tort committed, vicarious liability is just. The following of Bazley may be an attempt to justify The House of Lords decision in Lister, however, it does not explain the reason for the injustice suffered by Hesley Hall Limited. They looked into the wardens history prior to his employment and it gave no inclination to the wardens paedophilic nature. They did everything reasonable to make sure they hired a suitable warden. Therefore, the imposition of liability on them for an employees completely unforeseeable actions is erroneous. As well as being unfair to the party it confers liability on, the close connection test is not a strong principle. It is not backed by precedent and seems to be founded on an eagerness to give compensation, not on equity. As stated by Hardiman J. in O'Keeffe v. Hickey15 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.

Vicarious Liability in Ireland:

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Mattis v. Pollock [2003] I.C.R. 1335 and Gravil v. Carrol [2008] I.C.R. 1222. [1999] 2 S.C.R. 534. [2008] I.E.S.C. 72.

Vicarious liability in Ireland developed analogously to its English counterpart. An early example of how liability is traditionally determined in Ireland is the case of Farry v. Great Northern Railway Co.16 In this case, the plaintiff was illegally detained by the defendants servant, the station-master. The question of law in this case was whether or not the station-masters wrongful detention of a passenger was within the scope of his employment. A court consisting of Palles C.B., Murphy J. and Boyd J. held that the defendants were vicariously liable for their servants actions. Although Marshall, the station-master, acted outside of his authority, he did so out of the defendants best interests. As Palles C.B. stated, he did not act for any purpose of his own.17 This decision reinforced the idea that an employer will be held liable for the torts of his servants if they are committed within the scope of employment. This is an application of what became known as the Salmond principle. This principle was comfortably applied in the Irish courts for a century, for example the cases of Williams v. Morrissey18 and Northern Ireland Road Transport Board v. Century Ins. Co. Ltd.19 As stated previously in this essay, the beginning of the 21st century brought drastic changes to the doctrine of vicarious liability in the form of Lister. Initially, it seemed that the Irish courts would follow the decision of their English counterparts. This impression was created by Delahunty v. South Eastern Health Board.20 It involved a visitor to a school being sexually assaulted by a member of staff at the school. The courts duty was to determine whether or not the South Eastern Health Board was liable for the sexual abuse committed by its servant. In deciding this case the courts had the opportunity to follow either one of two opposing lines of precedent. The first was that of The Health Board v. BC.21 This sexual abuse case applied the tradition formulation of the Salmond principle in its reasoning and found no vicarious liability. The opposing authority that could have been followed was that created by Lister. Although no liability was found, it would seem that the courts chose to follow Lister. OHiggins J. stated that there was no liability because there was not such a connection between the employment of [the housemaster] and the assault on the plaintiff as to fix liability on his employer. 22 Basically, the close

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[1898] 2 I.R. 352.

Farry v. Great Northern Railway Co. [1898] 2 I.R. 352 at 357.

[1903] 37 I.L.T.R. 65. [1941] 75 I.L.T.R. 44. [2003] 4 I.R. 361. [1994] E.L.R. 27. Delahunty v. South Eastern Health Board [2003] 4 I.R. 361 at 377. {Source: Ryan, Making Connections: New Approaches to Vicarious Liability in Comparative Perspective, (2008) 15(1) Dublin University Law Journal 41.}

connection, established by the decision in Lister, was not present in enough strength to find liability. Had it been, liability would probably have been found. This decision gave the impression that a case factually similar to Lister would be decided similarly. Interestingly, a recent decision seems to have diminished this impression. This is the decision in the case of O'Keeffe. This case, similarly to Lister, involved a pupil who was sexually abused by the principal of the school she attended. The two main legal issues in this case were (i) was the state the principal's employer? and (ii) was the alleged sexual abuse committed within the scope of employment? The case was decided by Murray C.J., Denham, Hardiman, Fennelly and Geoghegan JJ., the later three issuing judgements. It was decided that no liability existed due to a lack of control exercised by the state over Mr. Leo Hickey. However, the judgments show Ireland's take on the close connection test. Justice Hardiman strongly disagreed with the application of the close connection test. He concluded that it is a test that should not be applied in Ireland, stating It does not appear to me that the close connection test can be regarded as a principled one. Justice Fennelly found no liability as there was a lack of control. However, he accepted the close connection test, saying it is ...both well established by authority and practical in its content. Justice Geoghegan found a ...sufficient connection between the State and the creation of the risk to render the State liable. Out of these three judgments, Hardiman J.s is the most reasonable one. It was possibly overly conservative, but he correctly applied the classic formulation of the time-tested Salmond principle. By not accepting the close connection test, the Irish courts can allow it to develop into a more reasonable and secure test. The evident difference in judicial opinions show that the close connection test is a legal principle that is still too young to be applied confidently. The implications of this decision are few and far between. It simply underlines the Irish courts confusion on the matter of using the close connection test to determine liability. The fact that three judges issued three completely different opinions proves how the Irish courts are divided on the matter.

Conclusion: The conservative reasoning applied by Justice Hardiman in O'Keeffe is a reasonable and just one. Although Ireland should not close its door on the close connection test, it should be careful not to follow the problematic steps as England and Canada in its application. The decision held by the English courts in Lister was a rash one primarily focused on granting compensation to the abused plaintiff. It was a genuine

extension of the law, but its primary incentive was to give plaintiffs a new tool with which to earn compensation, not to benefit the greater good. The House of Lords applied manipulative reasoning to bend the law in its favour, however, the Irish courts seem to be resisting the common practice of following suite. Will Ireland follow other jurisdictions in applying the close connection test, or will it stay with the time tested Salmond principle? The judgement in OKeeffe did very little to answer this question. However, the individual judicial opinions, when analysed, indicate that the Salmond principle holds sway in Ireland, for now at least.