By Mary Carolan
The Irish Times
December 19, 2008
http://www.irishtimes.com/newspaper/breaking/2008/1219/breaking41.htm
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 today’s judgment on the appeal by Louise O'Keeffe (43), of Thoam, Dunmanway, Co Cork, against a High Court decision the Minister for Education and State are not vicariously liable for the assaults.
Ms O'Keeffe is now facing a potential legal costs bill of more than ˆ750,000 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 when she was a pupil 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.
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| Louise O'Keeffe, who today failed in her court bid to have the Minister for Education and State held vicariously liable for the sexual abuse she suffered at the hands of schoolteacher Leo Hickey |
The majority court - the Chief Justice, Mr Justice John Murray, Ms Justice Susan Denham, Mr Justice Adrian Hardiman and Mr Justice Nial Fennelly - all ruled the State defendants have no vicarious liability for the actions of Hickey 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 that, under the national school rules, it is the school manager - in this case Canon Stritch - not the Minister for Education who decides which teacher to employ.
The court further noted no action had been brought by Ms O'Keeffe against the manager or patron of the school and said, in those circumstances, it was not appropriate to decide whether vicarious liability should be imposed on the direct employer of Hickey, Canon Stritch.
The judges also stressed they were leaving over 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.
Dissenting from the majority, 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 the 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, he added.
The court had heard parents withdrew girl children 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's 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 ˆ300,000. The judge rejected Ms O'Keeffe's claim against the State and awarded costs against her.
In his judgment, Mr Justice Nial Fennelly said Hickey was, in law, the employee of the manager, Canon Stritch. While he was required to possess qualifications laid down by the Minister for Education and to adhere to the rules for national schools, the State had not initially engaged him and did not have power to dismiss him. The scheme of the rules and the consistent history of national schools was that the day to day running of schools is in the hands of the manager.
Mr Justice Fennelly also indicated that traditional principles governing vicarious liability could be applied in a broader manner on the basis of a "close-connection" test.
Mr Justice Adrian Hardiman said Ms O'Keeffe was seeking a "drastic change" in the law on vicarious liability. If any such change was to be effected, it should be done by the legislature and not the courts, he believed. He also referred to the "very peculiar, probably unique `managerial' system" for the governance of many national schools in Ireland.
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