Dear all

Those of you with an interest in vicarious liability may wish to
consider the recent decision of the Irish Supreme Court in Hickey v
McGowan [2017] IESC 6.

http://www.bailii.org/ie/cases/IESC/2017/S6.html

Briefly, the Court considered the following issues of general interest:
1. When vicarious liability for sexual abuse in a school setting could
be imposed. (The close connection test was confirmed as applicable in
Irish law, though with clear indications that the application of this
test will in practice not lead to a significant expansion of the
circumstances in which liability is imposed);

2. Whether the CCWS case is to be followed in Ireland. (The treatment
of CCWS is detailed and far from uncritical. The Court clearly
disapproved any attempt to treat an unincorporated body as a
corporation for the purpose of imposing vicarious liability);

3. The imposition of vicarious liability on an unincorporated association;

4. The possibility of joint vicarious liability is recognized.
(However, the Court holds that where two parties have joint vicarious
liability, their liability is in equal shares. So, reversing the High
Court on the point, the Court holds that the school manager was 50%
vicariously liable, not 10%. This analysis is based on the premise
that vicarious liability is liability without fault and it therefore
ought not to be apportioned unequally. I must say I found the High
Court's analysis, which was that the religious order was 90%
vicariously liable because it had day to day direction of the abusive
brother, persuasive. I am also surprised that decisions from other
jurisdictions on this point, were not considered.).

The Court also considered a very important issue regarding the Irish
Civil Liability Act 1961, which may not be of general interest to
readers based outside Ireland but which I would be happy to discuss
and on which I would welcome any views.

The judgment of O'Donnell J for the majority, in particular, is well
reasoned and thorough. It deserves a careful reading. The judgment
suggests that the Irish Courts will continue to take a conservative
approach to any expansion of the law regarding vicarious liability.
The references to issues of insurance and loss spreading as well as
the function of the law of tort are notable in a judgment that
reaffirms the principal that the existence or otherwise of insurance
is strictly not relevant to the court's role.

The court's reasoning regarding unincorporated associations seems
legally indisputable. That said, it will give rise to a great deal of
complications for claimants in future cases both because:
1. of limitations issues (where some or potentially all the members
of the association at the time the tort was committed are dead); and
2. The apparent need to identify, join and serve) all members of the
unincorporated association at the time the tort was committed where an
association declines to put forward a representative.

Finally, questions may arise where substantial property was obtained
by former members of an association such as a religious order but has
now been passed on to persons who are now members but wer enot members
at the time of the tort. In truth it may be that most of the assets of
many religious orders are now tied up in trusts.

In the context of the complexities identified above, it is worth
noting that there is no legal aid for cases such as this. I suspect a
large majority of claimants are not well financed and certainly are
not in a position to 'invest' in their cases. The lawyers who act for
Plaintiffs in such cases frequently do so on a 'no fole no fee' basis
and there is no provision for contingency fees in the Irish system.
ATEI is relatively new here and I do not know if it is used in cases
such as this.

Note: I had noted paragraph references from the judgment for inclusion
in this message but lost these and do not now have time to re-read to
find the relevant paragraphs. I am posting now, as I have been
meaning to note this decision for a few weeks and just have not had
time. My apologies if the lack of appropriate references makes the
above less helpful, I really do think though that O'Donnell J's
judgment is worth reading in full.

Kind regards

Ger