O'Keeffe v Hickey

Factual and Procedural Background

The Plaintiff alleged that, during the early 1970s, she was sexually abused by the Principal (“Defendant”) of a primary school located in The County. The school was owned by a religious patron and managed locally by a cleric acting as Manager. Although the Plaintiff later obtained a substantial default judgment against the Defendant, the Defendant had no assets from which to satisfy it. The Plaintiff therefore sued the Minister for Education, “Ireland” and the Attorney General (collectively, “The State”) claiming they were vicariously liable for the abuse. The High Court (Judge Hardiman) rejected the claim against The State. The Plaintiff appealed to the Supreme Court, where three judges (Judge Hardiman, Judge Fennelly and Judge Geoghegan) delivered concurring judgments on 19 December 2008.

Legal Issues Presented

1. Whether The State can be held vicariously liable for intentional sexual assaults committed by a teacher who was contractually employed by the school Manager rather than by The State.
2. Whether Irish law should adopt a broader “enterprise risk / close-connection” test—similar to Canadian and English jurisprudence—for imposing vicarious liability on a non-employer.
3. Whether constitutional and statutory duties of The State in respect of primary education create direct or non-delegable liability for abuse occurring in denominational national schools.

Arguments of the Parties

Plaintiff's Arguments

• The State supplied virtually all funding, set educational rules and approved teachers; therefore it “created or enhanced” the risk, satisfying a close-connection test.
• Modern common-law policy (fair compensation and deterrence) favours imposing liability on the entity with the “deep pocket.”
• Article 42 of the Constitution places an ultimate duty on The State to safeguard children receiving “free primary education.”

The State's Arguments

• The Defendant was selected and controlled exclusively by the Manager; The State had no day-to-day control and thus no employment relationship.
• Historical “managerial system” intentionally interposes the patron/manager between The State and pupils; the Inspectorate’s role is limited to academic standards.
• Imposing liability would create an unprecedented extension of vicarious liability and is a matter for legislation, not the courts.

Table of Precedents Cited

Court's Reasoning and Analysis

The three concurring judgments accepted that vicarious liability may, in appropriate circumstances, extend beyond the formal employer if a close connection exists between the wrongdoing and the enterprise. However, they found that:

• The Defendant was hired, supervised, and (ultimately) dismissed exclusively by the Manager acting for the religious patron; The State had no contractual or managerial power to recruit or dismiss him.
• The Inspectorate’s role—monitoring curriculum and teacher competence—did not amount to operational control over day-to-day conduct, let alone over clandestine criminal acts.
• Article 42 of the Constitution obliges The State to “provide for” free primary education, which historically has been fulfilled by funding privately managed denominational schools rather than by running them.
• Adopting the Canadian “enterprise-risk” model would constitute a major policy shift better left to the legislature; extending liability merely because The State possesses deeper financial resources would be unjust and unpredictable.
• No evidence showed that sexual abuse was an inherent risk of the educational enterprise such that State funding or approval materially increased that risk.

Accordingly, the requisite close connection between the Defendant’s assaults and any State enterprise was absent; the abuse constituted a personal criminal frolic wholly outside any relationship with The State.

Holding and Implications

Appeal dismissed. The Supreme Court affirmed the High Court’s refusal to impose vicarious liability on The State.

Implications: The ruling preserves the historic division of responsibility between denominational managers and The State in Irish national schools. It signals that any radical expansion of vicarious liability (e.g., adopting an enterprise-risk model) must come from the legislature, not the courts. The decision directly affects only the parties but leaves undisturbed the existing principles limiting State liability in comparable cases.