O'Keeffe -v- Hickey, [2008] IESC 72 (2008)

Docket Number:174/06
Party Name:O'Keeffe, Hickey
Judge:Hardiman J.
 
FREE EXCERPT

THE SUPREME COURT

Murray C.J. 174/06

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

LOUISE O'KEEFFE

Plaintiff/Appellant

and

LEO HICKEY, THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY GENERAL Respondents

JUDGMENT delivered on the 19th day of December, 2008, by Mr. Justice Hardiman.

This case raises difficult issues in the area of vicarious liability and Church/State relations. The plaintiff says that thirty-five years ago she was sexually assaulted by a teacher at school. The school was owned and run by a private religious group but was recognised by the State as a national school. The assaults took the form of inappropriate touching and feeling of her body. Many years later she sued the teacher and received a very substantial award of damages. But she has not been able to recover much if any of this from the now retired teacher. She has also made a successful claim to the Criminal Injuries Compensation Tribunal, but she is dissatisfied with the amount awarded (about 53,000). In the present action she claims that the Minister, the State and the Attorney General as their representative - that is the taxpayer - should compensate her for what happened. This would require an enormous revolution in the principles of vicarious liability as applied in Ireland.

The plaintiff has not sued the religious group who managed the school, the trustees of its property, or its officials past or present. She has sued the State defendants, claiming that they are liable to compensate her either directly or vicariously. The learned trial judge dismissed the allegations of negligence against the State and no appeal has been taken from this finding. The case is therefore one of alleged vicarious liability.

These defendants say that they are not liable. They did not own or run the school, or appoint the teachers. They did fund the management of the school, as mandated by the Constitution, and paid the teachers whom the religious officials appointed. They also laid down the academic syllabus (except in religious instruction) and inspected the secular instruction given. But they were excluded from the running of the school. That function had been conferred on the religious authorities, by long-standing legal arrangements brought about by a campaign by all the major religious bodies in Ireland, back in the nineteenth century.

The State does not assert that the Church authorities are liable to the plaintiff. The authorities know nothing of the facts of the case of their own knowledge. But they say that the Church authorities, by their own wish, manage and administer the school and select the teachers, to the exclusion of the Minister from these functions. The Minister is quite removed from the management and control of the school and staff by legal arrangements in place since before the State was founded. This is the so-called "managerial system", which has prevailed in Ireland, for historical reasons, for more than 150 years.

In summary, a grievous wrong has been committed by a "man of straw" who apparently cannot pay compensation. The plaintiff has not sued the religious authorities for whom the perpetrator worked. Can the State be forced to pay with public, that is, taxpayers money? We have been told that a great many other cases await the result. If the question is answered in the negative, the plaintiff may have to be content with the award made to her by the Criminal Injuries Compensation Tribunal.

This is the plaintiff's appeal against the decision of the High Court (de Valera J.) whereby he dismissed the plaintiff's claim against the second third and fourth defendants. De Valera J's judgment was delivered on the 20th January, 2006, and the order was perfected on the 24th October, 2006.

Factual background.

The plaintiff was born in November, 1964, and is now about 44 years of age. She was married but is now separated and has two young children.

The first-named defendant is a retired teacher who was born in the year 1939. In August of 1962 he was appointed as Principal of Dunderrow School near Kinsale in Co. Cork. This school is within the Catholic diocese of Cork and Ross. It was owned, on the evidence, by the trustees of that diocese. At the time material to this case, the patron of the school was the late Dr. Lucey, Bishop of Cork and Ross and the Manager of the school was an Archdeacon Stritch P.P. The latter, however, was an elderly gentleman and it appears that at all material times the actual functions of management came to be carried out by a Fr. O'Ceallaigh. The latter is described in the plaintiff's submissions as "the de facto manager of the school."

The abuse occurred in the latter part of the school year ending in the summer of 1973, according to the plaintiff's pleadings, or at the latest up to September 1973, the judge found.

It would appear that there was considerable local concern about the first-named defendant's behaviour leading to the parent of another child approaching Fr. O'Ceallaigh. In September of 1973 the first-named defendant resigned from his position. After a period of sick leave he was appointed as a teacher in a boys' National School in Ballincollig where, on the evidence, he taught until his retirement in 1995. He did so without complaint, as far as the evidence goes.

The plaintiff made no complaint at the time of these events though a little later, when specifically questioned by her mother, she indicated that something of a sexual nature had occurred. This was a very brief conversation and, according to the plaintiff's submissions on appeal did not go "further than that very minimal description".

Many years later, in 1996, another former pupil of Dunderrow School complained to the gardaí about what had happened there. The gardaí contacted the plaintiff in November of 1996 and she made a statement in January, 1997. According to the plaintiff's submissions, she was herself surprised at her reaction to giving this statement: "She was surprised at how much it meant to her to give the statement and describe what had happened to her… it struck her that this was something more important to her than she had hitherto imagined."

The plaintiff was subsequently referred for counselling.

In the meantime, in June 1998, the first-named defendant was convicted on a plea of guilty to twenty-one sample charges of abuse in Dunderrow School. The plaintiff says that the sentencing hearing "was the first point at which [she] appreciated that the difficulties she had suffered in her life were to a very considerable degree the result of what the first-named defendant had done to her". She was subsequently referred for a psychiatric assessment/counselling. The difficulties referred to were of a marital nature.

According to the plaintiff's account, she was concerned that the first-named defendant had not, before the issue of these proceedings, been exposed as a paedophile. His name had not been published as a result of the criminal prosecution. His standing in the community did not seem, as far as the appellant could discern, to reflect the wrongs he did to numerous young girls placed in his care. This, far beyond any monetary compensation, was a significant purpose in instituting proceedings as was the aim of making people aware of what had happened to her and who it was that did this to her, she says.

On the 27th October, 1998, the appellant made an application for compensation to the Criminal Injuries Compensation Tribunal. She was awarded a sum of slightly more than £53,000. She issued the present proceedings on the 29th September, 1998. In November, 1999 she obtained judgment in default of defence against the first-named defendant, the perpetrator of the abuse. On the 24th October, 2006, damages were assessed against him in the total sum of 305,104.00 made up as follows:

(a) General damages - 200,000.00,

(b) Aggravated damages - 50,000.00,

(c) Exemplary damages - 50,000.00,

(d) Special damages - 5,104.00.

The trial of the action against the other defendants commenced on the 2nd March, 2004, and ended on the 12th March, 2004. The plaintiff's claim against the State defendants fell into three headings as follows:

"(1) Negligence on the part of the State arising out of the failure of the State defendants to put in place appropriate measures and procedures to protect and to cease (sic) the systematic abuse which the first-named defendant had on the evidence embarked from 1962 in Dunderrow National School of which she was very much one of the latter victims.

(2) Vicarious liability in relation, not merely to the first-named defendant but also in relation to the curate Fr. O'Ceallaigh who was the de facto acting manager, to whom the evidence established that a complaint of sexual abuse of a pupil by that girl's mother was made in or about 1971 on foot of which Fr. O'Ceallaigh took no action.

(3) The constitutional role and responsibility of the State defendants in the provision of primary education arising under Article 42 of the Constitution and the measures which the second-named defendant, the Minister, had adopted and the steps put in place to discharge those responsibilities."

On the 9th March, 2004, the learned trial judge non-suited the plaintiff in respect of the claim in negligence but declined the defendants' application for direction or non-suit in relation to the other issues. There was further extensive legal argument on those issues and a judgment was eventually delivered on the 20th January, 2006, whereby the plaintiff's claims under the remaining two headings were dismissed. The plaintiff's appeal is against this judgment and order.

Parties not sued.

It is notable that although the plaintiff has sued the actual perpetrator of the abuse, the first-named defendant, and the State defendants listed above - the Minister, Ireland and the Attorney General - she has not sued the patron of the school, Dr. Lucey, the diocese of which he was Bishop, his successors or his estate. Neither...

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