Reilly v Devereux [2009] IESC 22
This recent case from the Irish Supreme Court illustrates the
limits of the 'close connection' test for vicarious liability
adopted by the House of Lords in the case of Lister v Hesley
Hall.
In Lister the claimants were children resident in a
boarding house attached to a school owned and managed by the
defendants. The warden of the boarding house systematically abused
the claimants without the defendants' knowledge. The House of Lords
held that there was a sufficient connection between the work for
which the warden was employed and the acts of abuse that he had
committed for those acts to be regarded as having been committed
within the scope of his employment. The court had particular regard
to the circumstances of the warden's employment including the close
contact he had with the pupils and the inherent risks that
involved. In other words, the warden's acts were so 'closely
connected' with his employment that it would be fair and just to
hold the employer vicariously liable for them.
In Reilly the claimant was a soldier who joined the
army at the age of 19. He alleged that he was sexually abused by a
sergeant major in the latter's office at the barracks. He alleged
that as a result of that abuse he sustained psychiatric injury.
One important issue was whether the army was vicariously liable
for the sergeant major's criminal conduct. Mr Reilly argued that
the conduct was so 'closely connected' with the employment that it
would be fair and just to impose vicarious liability.
He argued that there were similarities with the relationship
between the warden and the children in Lister. In
particular there was a disparity in rank between Mr Reilly and the
sergeant major; the sergeant major exercised power over Mr Reilly
and could command obedience from him. The atmosphere of the army
was such that there was a high degree of intimacy and camaraderie
as the soldiers worked at close quarters. Finally, he submitted
that complaining was discouraged in the army.
The court rejected Mr Reilly's arguments. While the sergeant
major undoubtedly exercised a supervisory and disciplinary role
over Mr Reilly, he was not in the same position as a boarding house
warden. Equally, although the nature of the employment could
encourage close personal contact, it could not be said that some
inherent risk of abuse existed. There was no intimacy implicit in
the relationship between Mr Reilly and the sergeant major, nor any
quasi-parental role. Indeed, at all material times Mr Reilly was an
adult. The court held that the relationship could hardly have been
more different from those in Lister.
The court also noted that, if vicarious liability were to be
imposed upon state bodies in such circumstances, it would be the
taxpayer who ultimately footed the bill when there was no fault on
the part of the body itself. Considerations of public policy
therefore also played their part.
Accordingly the court considered that Mr Reilly fell
considerably short of establishing that the army should be
vicariously liable for the sergeant major's criminal conduct.
This highlights the importance of closely examining the
individual circumstances of each and every case to determine
whether the conduct complained of is sufficiently 'closely
connected' to the employment to give rise to vicarious liability.
It also helpfully demonstrates the limits to Lister. There has to
be a particular species of relationship between the claimant and
wrongdoer before vicarious liability will be imposed on the
employer.
Contributed by Duncan Batchelor