State liability for abuse in primary schools: Systemic failure and O'Keeffe v. Hickey

Due to the historical arrangement between Church and State, the Irish State has always discharged its duty to provide for free primary education exclusively through the provision of funding to privately owned and managed schools. Consequently, in O'Keeffe v. Hickey, where a woman sued the State in respect of sex abuse she suffered when in school, the Supreme Court held that on ordinary tort law principles of vicarious liability, primary school teachers are employed by the individual school and not by the State. Consequently, the State bears no liability for torts committed by teachers in the course of their employment. Moreover, the court expressed doubt as to whether such abuse could be considered to occur within the course of employment for the purposes of vicarious liability. This article examines this case from the perspective of the obligations of the State under the Irish Constitution and the European Convention on Human Rights. It argues that viewed globally, these obligations do not allow the State to insulate itself from liability for what occurs in state-funded primary schools; on the contrary, in cases of systemic failure to protect children from sex abuse, there are compelling legal grounds to impose liability on the State.