|The Law Can Sometimes Be an Ass
December 23, 2008
The State paid the salary of Cork National School principal Leo Hickey. Now despite the fact he was sentenced to three years in jail for sexual abuse, the State continues to pay his pension.
Recently, the High Court and Supreme Court have both ruled that the State is not vicariously liable for sexual assaults on young girls by Hickey, at the school near Kinsale in the 1970s.
Because Hickey was employed by the school patron and Board of Management and not by the State, despite the fact he was being paid by the Department of Education and implemented a curriculum devised by the department.
This is management at one remove – and the State should hang its head in shame at attempting to absolve itself from responsibility.
The State has argued that a judgment that it was vicariously liable (when one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury) would have "opened the floodgates" to a torrent of litigation.
If only the State was as careful with the taxpayers' money in all other aspects of its spending.
Some years ago, the Government apologised, on behalf of the State and all its citizens "to the victims of childhood abuse for our collective failure to intervene, to detect their pain, to come to their rescue". Apologies are meaningless, though, if they are not backed up by an acceptance of responsibility.
For victims of abuse by teachers in primary schools, this apology was an empty gesture – as it appears it was not designed to cover them.
If there was any doubt about that, it became abundantly clear when the State subsequently established the Residential Institution Redress
Board – a method by which those abused in State care could obtain financial awards, without going through an adversarial court process.
The schemes excludes those abused as children in the primary school system.
And while, the land's highest courts have ruled the Department of Education was not liable for abuse in its school in the O'Keeffe case, there is clear evidence in many other cases, that the Department of Education had been made aware of concerns about the actions of teachers.
However, instead, it sat on its hand as abusers were quietly moved on from school to school, leaving a trail of sexual abuse behind them.
Not only were the victims, in my view, failed by the State, but Cork woman, Louise O'Keeffe could now have the State chasing her for unpaid legal costs.
O'Keeffe who was abused by Hickey as an eight-year-old girl has had the State's legal costs in the High Court levied against her, after the court ruled the State was not vicariously liable.
The issue of who pays the State's costs in the unsuccessful Supreme Court appeal has not yet been determined.
If the bill is again dispatched to Ms O'Keeffe's door, she could face legal costs of more than €750,000.
Although, there is no clear indication the State will pursue her for payment, it should now, nonetheless, give a public undertaking it will not do so.
The legal judgment issued last week represented what was effectively a test case.
This was an important point of law. And although, in this case, in my view, it appears the law is a member of the equine family which brays loudly, there was clearly a huge public interest involved in establishing the legal ruling.
The State should therefore pay its own costs – relieve Ms O'Keeffe of further trauma and move on.
Louise O'Keeffe did not bring a case against the school's board of management, its patron or parent diocese.
She has previously obtained damages assessed at €300,000 against Hickey, but had to pursue further court action to obtain a payment of €400 a month from her abuser.
The four-judge court was careful not to give any indication as to whether the church authorities bore liability for what happened to Ms O'Keeffe.
But if, in the general instance, the State does not have liability, the spotlight surely falls on the patrons – which in most Irish catholic national schools has traditionally been a representative of the local Catholic Church.
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