O’Keeffe judgment is disappointing but not surprising

FOR many parents, students and the general public, it sounds odd that the Minister for Education has no responsibility in law for the actions of the tens of thousands of teachers whose salaries he pays every year, and whose pensions he funds with taxpayers’ money.

It is more unbelievable, doubtless, for someone like Louise O’Keeffe who felt betrayed by the Government department which set down the rules for teachers, including her own principal Leo Hickey who abused her as a young girl at her school near Kinsale, Co Cork, in the 1970s.

Only this month, the Department of Education, teacher unions and school management bodies signed off on new procedures in relation to teacher conduct as well as their competence in the classroom.

But the question of who is responsible for any misbehaviour or damages towards pupils or students is, as it has always been, unstated.

The nightmare is to continue into 2009 for Louise O’Keeffe after yesterday’s Supreme Court decision, but it has already been part of most of her 44 years spent living in west Cork.

She was to have no idea starting her primary school education back in 1964 that the loss of her childhood and her innocence would resonate well into the 21st century.

Hickey sexually abused her during after-school music lessons when she was just eight years old. He also abused other female students at Dunderrow National School until he resigned and was employed at another school in the same diocese in early 1974.

His recognition by the Department of Education as a teacher was only withdrawn after criminal charges were taken — but he had already retired in 1995.

It was 1998 — a quarter of a century after he abused little Louise O’Keeffe — when the teacher was jailed for three years after pleading guilty to 21 sample charges (out of 380 in total) of indecent assaults on 21 girls.

Ms O’Keeffe sued him and the State for damages at the High Court in a case heard in 2004, but it was January 2006 before the judgment was delivered. Mr Justice Eamon de Valera ruled that Hickey should pay her €305,000 in damages, but he rejected her claim that the State was vicariously liable for the assaults.

While she was left pondering a legal bill for the State’s costs, estimated at more than €500,000, her former abuser had not paid a single cent of the High Court award against him to Ms O’Keeffe until she brought a case to the District Court in October last year.

A judge ordered there that he should pay his victim €400 a month, twice what he had claimed he could give her out of his €26,000-plus annual pension from the Department of Education.

In the meantime, she has been keeping her fingers crossed that the State will not come knocking on the door looking for its costs, which would probably mean having to give up the home near Dunmanway, Co Cork, where she lives with her two children.

The outcome of her Supreme Court appeal — which was heard last July — was obviously a huge setback to those hopes although the State Claims Agency has clearly given an indication that it will be sensitive to Ms O’Keeffe’s concerns if the court later makes an award that the State’s costs should be paid.

However, some legal experts have said the judgment, disappointing as it obviously is for Ms O’Keeffe, was not surprising.

Barrister Oliver Mahon, an education law specialist, said that despite common perceptions, the Minister for Education is not the employer of primary school teachers, despite the fact that he or she pays their salaries, sets the curriculum and sets standards for teaching competence.

“The question of vicarious liability usually arises where an employer can be held liable for a wrongful act of an employee, provided it was carried out in the course of their work, such as a bus driver knocking down a pedestrian, in which case the victim would sue the bus company,” he said.

“But, whereas in most cases, the person who pays the salary is the employer, in the case of primary schools it is the board of management,” said Mr Mahon.

Ms O’Keeffe will have to wait until another new year passes before finding out what kind of legal bill, if any, she might face.

With the progress of up to 200 cases reported to have been awaiting yesterday’s judgment, she might well hope that some seasonal goodwill could be adopted.

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