It is just and proper State is liable for children abused in schools, court told

IT is “grossly utilitarian” to argue that the State as a matter of public policy should have no liability for the sexual abuse of children in national schools because this would lead to many other claims, the Supreme Court was told yesterday.

The State and taxpayer benefit from the national school system of education which is a public project and it is “just and proper” the State should pay the cost of the few children abused while attending those schools, David Holland SC argued.

He urged the five-judge court to discount the State’s claim that holding it vicariously liable for 20 sexual assaults by school principal Leo Hickey on Louise O’Keeffe when she was a pupil at Dunderrow National School in 1973 would “open the floodgates” for claims.

Mr Holland was making submissions for Ms O’Keeffe, 43, of Thoam, Dunmanway, Co Cork, in her continuing appeal against a High Court decision in 2006 that the Minister for Education and the State are not vicariously liable for the assaults on her. The action is regarded as a test case with more than 200 similar cases awaiting its outcome.

A complaint was made in 1971 by another parent about Hickey to the acting school manager and local curate, Fr O Ceallaigh, but Hickey remained in his post. Ms O’Keeffe is alleging the State is also vicariously liable for the failure of Fr O Ceallaigh to report the complaint to the Department of Education.

After parents withdrew schoolgirls in protest in 1973, Hickey resigned in January 1974, was employed the following month at a boys school in Ballincollig, Co Cork, and continued to teach until his recognition as a teacher was withdrawn after criminal proceedings in the late 1990s.

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

Ms O’Keeffe’s proceedings 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 the judge rejected Ms O’Keeffe’s claim that the State was vicariously liable for the assaults and awarded costs estimated at some €500,000 against her.

In her appeal, Ms O’Keeffe contends the judge failed to properly consider the issues and evidence, inexcusably delayed two years before delivering judgment and unfairly awarded costs against her.

Yesterday, Mr Holland argued that a national school teacher is in the position of a responsible parent. In this case, the abuse occurred on school property, during the teaching process and the duties entrusted to Hickey by the department gave him the opportunity to commit abuse.

Opening the State’s opposition to the appeal, James O’Driscoll SC said the case being made for Ms O’Keeffe was absurd and, if upheld, would lead to an impossible situation for the minister.

He also said the functions of school inspectors are “very limited” by the rules of national schools and did not require inspectors to find out sexual abuse.

The case is expected to conclude today with judgment reserved.

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