Minister not liable for abuse by principal
O’Keeffe -v- Hickey Ors
Judgments were delivered on December 19th, 2008 by Mr Justice Fennelly and Mr Justice Hardiman, Chief Justice Murray and Mrs Justice Denham concurring with the judgment of Mr Justice Fennelly. Dissenting judgment was delivered by Mr Justice Geoghegan.
There was no employment relationship between school principal Mr Hickey and the second-named defendant, the Minister for Education and Science. On normal principles, the State has no vicarious liability for the acts of a teacher appointed by the manager of a national school, and there is no legal basis for the imposition on the State of vicarious liability in this case.
The case came as an appeal of a High Court judgment that the State was not vicariously liable for the actions of Dunderrow, Co Cork national school principal, Leo Hickey, in sexually abusing a then eight-year-old girl, Louise O’Keeffe, while he was teaching her music in the school. The abuse consisted of digital genital abuse, and continued over a number of months in 1973.
The then manager of the school was Canon Stritch, who was elderly and infirm, and who died in 1975. The de facto manager was Fr O’Ceallaigh, who received a complaint about Mr Hickey in 1971. He was said to have visited the school following the complaint.
In 1973, a number of other complaints of abuse by Mr Hickey of other children came to light.
Following a meeting of parents chaired by Fr O’Ceallaigh Mr Hickey went on sick leave, and in January 1974, Fr O’Ceallaigh wrote to the Department of Education on behalf of Canon Stritch stating that Mr Hickey had given notice of his resignation, and naming the teacher he planned to appoint in his place.
It does not appear that the department was informed of the complaints against Mr Hickey.
In June 1998, the teacher pleaded guilty to 21 sample charges out of a total of 386 relating to the abuse of 21 girls who had been in his charge in Dunderrow school.
In September 1998, civil proceedings were brought by Ms O’Keeffe against Mr Hickey, the Minister and the Attorney General. Mr Hickey played no part in the proceedings, and she obtained judgment against him in default.
The action against the State was heard in March 2004, claiming that the State was vicariously liable for the sexual assaults, and also that it was negligent in relation to the recognition, examination and supervision of the school, and in failing to put in place appropriate measures and procedures to detect and prevent sexual abuse by Mr Hickey.
In the High Court, Mr Justice de Valera ruled that the State had no case to answer with regard to negligence, and he also held that the State was not vicariously liable. The appeal was limited to the issue of vicarious liability.
Decision of Mr Fennelly
Mr Justice Fennelly summarised the evidence given concerning the management of national schools, and how this had its origins in structures established by the then chief secretary for Ireland, Lord Stanley, in 1831.
This was not fundamentally changed by independence, and is provided for in the 1937 Constitution, which states that the State was obliged to “provide for” free primary education, rather than directly providing such education.
Mr Justice Fennelly also examined the evolution of the law on vicarious liability. “It is . . . a recurring theme that the vicarious liability of the master is explicable by reference to the fact that the master has put the servant in place to carry on a particular activity,” he said. “It is not necessary that the master have authorised the particular act complained of and he need not have derived benefit from it.
“The second point which has been established in the cases is that an employer is not necessarily [necessarily being the key word] protected against liability merely because he has prohibited his employee from carrying out his work in a particular way.”
UK case law had established the test of the need for a “close connection” between the wrongful acts and the work that the employees were required to perform.
He referred to a Canadian case, Bazley - v- Curry, where a non-profit foundation was sued by a person who had been sexually abused by a paedophile unwittingly employed by the foundation. The Supreme Court of Canada upheld a finding of vicarious liability against the foundation, which was not found guilty of any negligence in employing the paedophile.
In this case, Ms Justice McLachlin analysed the policy considerations that should underlie vicarious liability, stating that these were: “(1) provision of a just and practical remedy for the harm and (2) deterrence of future harm”.
In a UK case known as Lister, Lord Steyn regarded the Canadian case as establishing a principle of “close connection”, while laying more emphasis on justice, precedent and practicality.
The result of the evolution of the law of vicarious liability, Mr Justice Fennelly stated, is that “strict liability is imposed on an employer regardless of personal fault, which is especially striking when the acts are criminal and could not conceivably have been authorised even impliedly”.
The “close connection” test is essentially focused on the facts of the situation. In all the “close connection” cases examined, a direct employment relationship existed. In this case, there was no claim against the manager or the patron of the school. It was therefore not appropriate to decide whether vicarious liability should be imposed on the employer of Mr Hickey. The important question was whether liability could be imposed on the State.
Mr Hickey was not employed by the State. In law he was the employee of the manager, Canon Stritch. While he had to comply with qualifications laid down by the State, it did not employ him or have the power to dismiss him.
According to the facts of this case, “it seems clear that no report was ever made to the second-named defendant or his department of the complaints of sexual abuse against Mr Hickey . . . All this further implies that the parents made their complaints, not to the first-named defendant, but to the manager”.
Therefore there was no employment relationship between Mr Hickey and the second-named defendant. On normal principles, the State has no vicarious liability for the acts of a teacher appointed by the manager of a national school under the system of management of national schools.
“I do not exclude the possibility of liability if it were to be established that, for example, an inspector was on notice of improper behaviour by a teacher and neglected to take action. That would not, however, be vicarious liability,” Mr Justice Fennelly said.
Dismissing the appeal, he said there was no legal basis for vicarious liability, and, as Fr O’Ceallaigh was not the employee of the State, there was no liability for his failure to report the 1971 complaint.
The full judgment is on www.courts.ie
Frank Callanan SC, David Holland SC and Alan Keating BL, instructed by Cantillon Co, for the plaintiff; James ODriscoll SC, Feichin McDonagh SC and Ann Power SC, instructed by the Chief State Solicitor, for the State