J.G.H. -v- Residential Institutions Review Committee & anor, [2017] IESC 69 (2017)

Docket Number:23/2016
Party Name:J.G.H., Residential Institutions Review Committee & anor
 
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SUPREME COURTAppeal No. 23/16

Clarke C.J.

O’Donnell J.

MacMenamin J.

Dunne J.

O’Malley J.

Between/

JGHApplicant/Appellant

AND

The Residential Institutions Redress Review CommitteeRespondent

AND

The Residential Institutions Redress BoardNotice Party

Judgment of O’Donnell J. delivered the 24th day of October 2017

1 This case concerns interpretation of provisions of the Residential Institutions Redress Act 2002 (“the 2002 Act”) which created a statutory scheme to compensate certain persons for abuse carried out in certain institutions. Having regard to the prohibition on disclosing information contained in s. 28 of that Act and in light of the general importance the legislative scheme attaches to confidentiality I propose to refrain from naming either the applicant, the Hospital or the Nursing Home the subject-matter of these proceedings.

2 It appears that the applicant JGH, when a little more than two and a half years old, was admitted to a children’s hospital (which I will call hereafter “the Hospital”) perhaps for a circumcision procedure although this like many other aspects of the case is unclear. The Hospital is a scheduled institution for the purposes of the Residential Institutions Redress Act 2002. Under the Act if a claimant can satisfy a limited number of requirements, he or she may receive compensation for abuse and injury suffered in a scheduled institution. It appears that while in the Hospital he was diagnosed with suspected rheumatic fever. Subsequently on the 28th of August 1962, it is alleged he was transferred to a nursing home (which I will call “the Nursing Home”) and was certainly admitted to the Nursing Home on that date. The Nursing Home was dedicated to the treatment of rheumatic fever. That illness was unfortunately commonplace in early and mid 20th century Ireland. The Nursing Home is not an institution for the purposes of the 2002 Act.

3 A key feature of this case is that a consultant at the Hospital was also the director of the Nursing Home. JGH was treated there by enforced bed rest for a very prolonged period, a treatment which it now appears was not appropriate even by the standards of the time. He claims that he was also treated harshly by staff and recounts a number of traumatic incidents. His family life was troubled. His father died young, his mother was bipolar. The prolonged and forced separation from his family at an early age has, it is said, caused him serious psychological trauma and he has had an unhappy life. The events in the Nursing Home as recounted, would it appears satisfy the standard for “abuse” and “injury” within the 2002 Act and these proceedings have been dealt with on that assumption. However, it is argued that a decision in the Hospital (or by the consultant who was both employed by the Hospital and the director of the Nursing Home) led to him being in the Nursing Home. Is this in itself sufficient to constitute abuse and injury in a scheduled institution (“the Hospital”) to permit him to recover compensation for the abuse and injury suffered in an institution (“the Nursing Home”) which was not scheduled, and accordingly in respect of which he could not directly recover compensation under the Scheme?

4 This is a question of statutory interpretation. That task involves a careful analysis of the provisions of any piece of legislation which is to be understood against the legal and factual background which is discernible from the Act or which is expected to be known by those to whom the Act is addressed. While the language of the Act is the primary guide to its interpretation, that task is not to be approached as an abstract exercise. As Judge Learned Hand said in Cabell v Markham (1945) 148 F 2nd 737,739:

“It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary: but to remember that statutes always have some purpose and object to accomplish, whose sympathetic and imaginative discovery is the surest guide to the their meaning.”

This is one of the earliest statements of what has come to be described as a purposive approach, although it might as easily be understood as an explanation of the modern approach to the exercise of seeking to understand and give effect to legislation. As Lord Bingham of Cornhill put it in R(Quintavalle ) v Secretary of State for Health [2003] 2W.L.R 692;

“The Court’s task within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provision should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment”.

5 A botanist visiting parts of the West of Ireland would readily be able to discern both the direction and ferocity of the prevailing winds from the manner in which a tree grows and has been bent over time. A geologist may deduce from rock formation that considerable force was applied at some period in the distant past. Similarly, a common law lawyer from another jurisdiction encountering the 2002 Act for the first time, and without any accompanying commentary or background knowledge, would be able to conclude that it was the product of very significant and substantial forces at play when the legislation was enacted. Of course anyone familiar with one of the darkest passages in recent Irish history would be able to identify those forces immediately. It emerged at the end of the 20th century, when Ireland prided itself on being an economically poor but morally strong country with a compassionate culture drawn from a strong Christian belief that children had been committed to institutions, often by the State, or under the supervision of the State, run by religious orders, then respected and even revered within the broad community and that some of those children had been subjected to sexual abuse by employees of the institution, and even more shockingly, members of the religious order, and that many others had experienced severe physical abuse, and still more had experienced neglect and privation. All of these matters, have come to be referred to compendiously in ordinary speech as “abuse”. These discoveries shocked a community. There was considerable debate about the extent of such abuse, and the responsibility for it. These revelations emerged in a 21st century world very far removed from the hard, impoverished but devout 1950s. The Ireland that viewed these matters was increasingly prosperous, cosmopolitan, and of rapidly decreasing piety, a process that was accelerated by these matters, and by the broader issues of sexual abuse by priests and other persons who had held respected positions within the community. There was much debate and argument as to responsibility. But contemporary commentary is not rigorous social history. And there is in any event a large gap between a generalised picture and the establishment of individual wrong doing for which damages are recoverable at law. This is particularly so when an incident occurred a long time ago, the alleged perpetrator is either very old or even dead, and the incident is still genuinely disputed. This becomes more difficult and traumatic when the process of determining such matters occurs in public which may cause distress to a victim. Therefore, the present day politics of reflecting a national sense of horror and shame encountered the limitations of individual actions for tort. Accordingly an inquiry process was set up and in parallel a compensation scheme was established by the Act of 2002.

6 Section 7: a first impression.

The central issue which arises in this case is an interpretation of the terms contained in s.7 of the Act of 2002, which is headed “Entitlement to award”. In particular s.7(1)(c) provides that an applicant must establish, among a very limited number of other matters, that “he or she was injured while … resident” in a scheduled institution, and moreover suffered injury that is consistent with abuse that is alleged to have occurred while so resident. “Resident” in this sentence means resident in an institution for the purposes of the Act. It is possible indeed to make a first and reasonably accurate attempt at establishing the meaning of s.7(1)(c) and applying it to the facts of this case from a consideration of the language alone. Returning to the question posed at the outset of this judgment therefore, the language certainly suggests on first impression that the alleged abuse and the consequent injury must be suffered while resident in the institution concerned. On the facts asserted here, JGH suffered injury while in the Nursing Home, consistent indeed with the abuse he alleges to have been committed there. It is however difficult to say that he suffered abuse in the Hospital, and more difficult and perhaps impossible to say that he was injured there. At first sight therefore his claim does not come within the statutory scheme. However, the subsection must be understood in the context of the whole section and then placed in the context of the Act as a whole, and its statutory and factual background. Accordingly it is necessary to consider the detailed provisions of the Act

7 The Act of 2002

The long title of the Act provides that it is:

“An Act to provide for the making of financial awards to assist in the recovery of certain persons who as children were resident in certain institutions in the State and who have or have had injuries that are consistent with abuse received while so resident and for that purpose to establish the Residential Institutions Redress Board to make such awards and to provide for the review of such awards by the Residential Institutions Review Committee and to provide for related matters.”

Three things at least might be gleaned from this description. First, and most obviously, that a compensation scheme is being established which will be administered by a redress board whose decisions and awards may be...

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