State not responsible for school sex assaults

 

THE SUPREME Court has ruled in a test action that the State cannot be held vicariously liable for a series of sexual assaults by a national school principal on an eight-year-old girl pupil.

Some 200 cases were awaiting yesterday's judgment on the appeal by Louise O'Keeffe (43), of Thoam, Dunmanway, Co Cork, against a High Court decision that the Minister for Education and the State are not vicariously liable for the assaults.

Ms O'Keeffe now faces a potential bill for legal costs of more than €750,000, but the costs issue will be decided later.

By a four to one majority, the Supreme Court dismissed the appeal, ruling the State cannot be held vicariously liable for 20 sexual assaults by school principal Leo Hickey on Ms O'Keeffe at Dunderrow National School, Co Cork, in 1973.

Hickey was jailed for three years in 1998 after pleading guilty to 21 sample charges of indecent assaults on 21 girls.

The majority court - the Chief Justice, Mr Justice John Murray; Ms Justice Susan Denham, Mr Justice Adrian Hardiman and Mr Justice Nial Fennelly - ruled that the State defendants have no vicarious liability for Hickey's actions because there was no employer/ employee relationship, formal or substantive, between them.

The judges noted Hickey was, at all relevant times, a teacher employed and working in a national school under the management of the local Catholic priest and, under the national school rules, it was the school manager - the late Canon Stritch - and not the minister for education who decided which teacher to employ.

The court further noted that no action had been brought by Ms O'Keeffe against the manager or patron of the school, and it was therefore not appropriate to decide whether vicarious liability should be imposed on Canon Stritch as direct employer.

The court stressed it would leave for definitive consideration in a more appropriate case the issue of whether the common law here should be given an extended interpretation so as to encompass a "close-connection" test for the purposes of an employer's vicarious liability.

Mr Justice Adrian Hardiman said Ms O'Keeffe was seeking a "drastic change" in the law on vicarious liability and he would decline to make it. If any such change was to be effected, it should be done by the legislature and not the courts.

He also referred to the "very peculiar, probably unique 'managerial' system" for the governance of many national schools in Ireland.

Dissenting, Mr Justice Hugh Geoghegan said exemption of the State from vicarious liability was "not just" in the circumstances of the relationship between the church and State regarding the Dunderrow school.

Applying the general modern principles underlying vicarious liability, he believed it was wrong to exempt the State from vicarious liability in this case.

There was "quite sufficient connection" between the State and creation of the risk to Ms O'Keeffe to render the State liable, he said. That did not mean relevant church authorities would also not be liable, but they had not been sued.

The court had heard parents withdrew girls from the Dunderrow school in protest at Hickey's actions in 1973. Hickey ultimately resigned in January 1974 and was employed the following month at a boys' school in Ballincollig, Cork. He continued to teach until his recognition as a teacher was withdrawn after criminal proceedings in the late 1990s.

Ms O'Keeffe had secured €53,000 damages from the Criminal Injuries Compensation Tribunal over the abuse, but was unhappy with the award.

Her High Court action against Hickey and the State were heard by Mr Justice Eamon de Valera in 2004, with judgment delivered in 2006.

Damages against Hickey were assessed at €300,000, but Ms O'Keeffe has not recovered those. The judge rejected her claim against the State and awarded costs against her.