Supreme Court first in case on liability of institutions

THE CASE of Louise O’Keeffe was the first time the Supreme Court was confronted with questions relating to the liability of institutions, including the State, for sexual abuse, Mr Justice Nial Fennelly noted.

The “calamity of the exploitation of authority over children so as to abuse them sexually has shaken society to its foundations”, he said.

He ruled that an employer may be held vicariously liable for the criminal or unauthorised acts of an employee, including sexual abuse, but stressed the issue whether liability will be actually imposed will depend on a “careful and balanced analysis” of the facts.

In this case, Leo Hickey was not employed by the State but was, in law, employed by the school manager, Canon Stritch, who died in 1975. As there was no claim by Ms O’Keeffe against Canon Stritch or the patron of Dunderrow national school regarding the abuse of 1973, it was not appropriate to decide whether vicarious liability should be imposed on the direct employer.

Mr Justice Hardiman said he did not share the “unqualified enthusiasm” of others for what they believed to be the “modern theory” of vicarious liability.

He did not believe the State, in providing for free primary education, was creating a “risk” and should be equated to an “enterprise” which benefits from providing that free education.

He did not believe companies, institutions, or even the State were necessarily to be considered differently than an individual.

Public funds could not be regarded as infinite, invulnerable to an extension of the grounds of liability. Another judge had recently predicted that if parents continued to sue for playground incidents, children would not be allowed to run or play in school yards. In this case, the State defendants had not put Hickey in his position as teacher to abuse, and had not put him in place at all. The school manager had done so.

The Minister for Education’s absence of direct control over Hickey, because such control had been ceded to the manager and patron, prevented a finding against the State. Hickey was the agent, not of the Minister, but of the Catholic Church.

The judge said nothing in his decision suggested the church authorities bore liability for what happened to Ms O’Keeffe.

The court had not heard from those authorities as they were not sued and they might be able to lead evidence which would put “an entirely different complexion” on the facts.