Hickey v McGowan

• Jurisdiction: Ireland
• Judge: O'Donnell J.,Mr Justice Charleton
• Judgment Date: 09 February 2017
• Neutral Citation: [2017] IESC 6
• Court: Supreme Court
• Docket Number: [S.C. No. 147 of 2014],Appeal No: 147/14 Record number: 2001/1676P Appeal number: 147/2014 [2016] IESC
• Date: 09 February 2017

BETWEEN

Pádraig Hickey

Plaintiff/Respondent

AND

Patrick Joseph McGowan, Christopher Cosgrove

and

the Minister for Education & Science, Ireland & the Attorney General

Defendant/Appellant

[2017] IESC 6

O'Donnell Donal J.

Charleton J.

Denham C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

Appeal No: 147/14

Record number: 2001/1676P

Appeal number: 147/2014

[2016] IESC

An Chuirt Uachtarach

The Supreme Court

Damages – Sexual abuse – Vicarious liability – Respondent seeking damages – Whether the first appellant was vicariously liable for the actions of the second appellant

Facts: The plaintiff/respondent, Mr Hickey, grew up in Sligo Town and attended St John’s National School for four years. For his last three years at the school from 1969 to 1972, he was taught by the second defendant/appellant, Mr Cosgrove, who was then a Marist Brother. The first defendant/appellant, Mr McGowan, was the Provincial of the Marist Order. It was alleged by the plaintiff and other boys in the class that the second defendant sexually abused the plaintiff. On the 24th of January, 2014, the High Court (O’Néill J) accepted the evidence of the plaintiff and the degree of corroboration provided by the evidence of the other boys, and rejected the second defendant’s denials. The High Court assessed general damages against the second defendant at €250,000 to date, and €100,000 in respect of general damages in the future, totalling €350,000. The High Court then held that the relevant manager was also vicariously liable as the effective employer of the second defendant. The High Court judge concluded that the manager was however only 10% responsible, and accordingly the damages against the second defendant were reduced by €35,000 to €315,000. Central to the appellants’ appeal to the Supreme Court was the liability of any other party, and in particular the first defendant, for the abuse committed against the plaintiff. The question for determination was whether the Order (or its members) is vicariously liable for the actions of a member.

Held by O'Donnell J, Denham CJ, MacMenamin J and Dunne J. concurring, that the Marist Order was an unincorporated association and must be viewed by the law as such. O’Donnell J considered that members of an unincorporated association have a vicarious liability for the acts of other members. O’Donnell J held that the relationship between the Order and its member may be such as to give rise to vicarious liability, but it would be wrong to hold that it can almost entirely displace the legal responsibility of an employer. Accordingly, O’Donnell J apportioned responsibility equally between the Order and the manager.

O’Donnell J reduced the overall general damages to a figure of €150,000; when the deemed contributory negligence under s. 34 of the Civil Liability Act 1961 was taken into account, this resulted in an award of €75,000. Mr Justice Charleton handed down a dissenting judgment.

Appeal allowed.

Judgment of O'Donnell J. delivered the 9th February of 2017

1 The emergence of the phenomenon of historic sexual abuse of children, and in particular abuse carried out by clergy and members of religious orders, has had a profound impact in many countries around the world, not least Ireland. That impact has also been felt in the law, which has struggled to deal with the very many issues thrown up by proceedings both civil and criminal. In the field of criminal law, the prosecution of offences alleged to have occurred many years previously, on extremely limited evidence, sometimes in circumstances where evidence of the principal complainant has been the product of a process of recovery of memories through therapy, raises many issues. In civil cases different though no less intractable problems arise. First, and most obviously, I think it is now well accepted that a feature of abuse committed against young children is that it may take considerable time for a victim to be in a position to acknowledge the fact of abuse, and be prepared to institute proceedings. Indeed this was treated as almost a matter of judicial knowledge in the judgment of Murray J. (as he then was) in the important case criminal law case of P O'C v. DPP [2000] 3 I.R. 87, at p.105. However, the lapse of time which often occurs between the matters complained of, and the bringing of proceedings, raises issues not simply of the Statute of Limitations, and of the fairness of proceedings, but also, the less well recognised practical problems of identifying a defendant against whom an action obtained and who or which may not have sufficient assets to meet any claim for damages. It is in the nature of claims such as these that they will involve a complaint of abuse by an adult against a young child, some time ago. Almost inevitably, defendants against whom proceedings are now sought to be brought, may be old, and in some cases deceased, or may have few assets, and therefore, it either may not be possible, or practical to bring proceedings and maintain them to conclusion.

2 As a result, proceedings are often most vigorously contested not between the alleged victim and the abuser, but rather between the victim, the claimant, and an institution which can be a corporate body, the State, or a body with the benefit of an insurance policy - and all of which have in common that they may have a longer life expectancy than the individual whom it is sought to make responsible for the wrongdoing. There is something questionable, at least in my view, in companies and institutions being made liable long after the event for matters, in respect of which no claim could now be brought against the persons who actually perpetrated the wrongs, but that is perhaps an unavoidable consequence of different rules of law relating to the time limit for claims being brought against the estates of deceased persons, and the legal status of an incorporated body. It is however unavoidable that claims relating to historic matters such as those which occurred in this case more than 40 years ago, will encounter significant additional hazards over and above the inherent difficulties of proof which might arise even in cases where the alleged abuse occurred recently.

3 The question raised in this case of the potential liability of a religious order or its members at any identified point in time for wrongdoing carried out by another member raises complex questions, some of which have been the subject of extended analysis in the Supreme Courts of a number of common law countries. Among those issues questions of the limits of the developing law on both limbs of vicarious liability: first the person or persons who can be liable without individual fault or culpability on their part, for the tortious acts of another; and second, the particular acts for which a person or body may be vicariously liable. Behind both these questions lies a difficult question as to the legal status of a religious order, and its liability, or the liability of its members, for wrongdoing perpetrated by another member.

4 These are substantial and difficult issues which have been the subject of judgments in other jurisdictions of the common law world without any coherent or consistent pattern emerging. It will be necessary to address some of these issues later in this judgment. However it seems unlikely that any Supreme Court which is engaged with the issues which arise in this case, has been confronted with a factual record and procedural history as fragmentary and unsatisfactory as that in this case. Accordingly, it will also be necessary to deal with some issues of procedure and evidence. In order to understand both the complex issues of law which are thrown up by this case, and the difficulties of procedure which stand in the way of addressing those issues, it is necessary to set out the facts and procedural history in some detail.

The Facts

5 The underlying facts of these proceedings have been set out in a judgment of the High Court (O'Néill J.), [2014] I.E.H.C. 19, delivered on the 24th of January, 2014. In essence the plaintiff was born in 1960, grew up in Sligo Town and attended St John's National School for four years. For his last three years at the school from 1969 to 1972, he was taught by the second named defendant who was then a Marist Brother. The first named defendant is the present Provincial of the Marist Order. By modern standards there were a high number of pupils, in excess of 50 and sometimes over 60, in the class attended by the plaintiff, and taught by the second named defendant. The classroom was crowded and there were pupils' desks immediately in front, and sometimes at the side, of the teacher's desk.

6 It is unhappily the case that the courts are now familiar with the accounts of child abuse which can give rise to proceedings in both civil and criminal law. Many of them follow a depressingly familiar pattern. What is perhaps unusual about this case is that it was alleged by the plaintiff and other boys in the class that the abuse occurred in the classroom. The plaintiff contended that he would be instructed by the second named defendant to come to the top of the class, close to his desk, on the pretext of reading to the class or being assisted in learning by the second named defendant. The second named defendant held the plaintiff very close to him and would rub his legs which evolved into fondling of his anus and genitalia, initially outside his clothes but then inside his clothes, and sometimes inserting a finger into the plaintiff's anus. Sometimes the plaintiff described the second named defendant placing a gown or cape type garment which he sometimes wore around the plaintiff to obscure his activities from view. On one occasion, the plaintiff said the second named defendant placed what the plaintiff described as his ‘belt’ around the plaintiff securing him to the second named...