J.G.H. v Residential Institutions Review Committee

• Jurisdiction: Ireland
• Judge: O'Donnell J.,the Chief Justice
• Judgment Date: 24 October 2017
• Neutral Citation: [2017] IESC 69
• Court: Supreme Court
• Docket Number: [Appeal No: 2016/23],[S.C. No. 23 of 2016]
• Date: 24 October 2017

[2017] IESC 69

THE SUPREME COURT

Clarke C.J.

O'Donnell Donal J.

Clarke C.J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

[Appeal No: 2016/23]

Between/

J.G.H.

Applicant/Appellant

and

Residential Institutions Review Committee

Respondent

and

Residential Institutions Redress Board

Notice Party

Compensation – Residential institutions – Injuries – Appellant seeking compensation for injuries – Whether compensation should be paid in cases where the claimant suffers injuries after the claimant has ceased to be a resident in a scheduled institution but where the injuries concerned can be found to be a foreseeable consequence of abuse occurring while the claimant was so resident

Facts: The appellant, having been resident in a hospital, was transferred to a nursing home as a result of a misdiagnosis. While in the nursing home he was subject to a harsh regime. The doctor in the hospital who had arranged for the transfer was also in charge of the regime in the nursing home and so would have been fully aware of the regime which the appellant was likely to suffer on transfer. However, unlike the hospital, the nursing home is not an institution covered by the Residential Institutions Redress Act 2002. In those circumstances an issue arose as to whether the injuries suffered by the appellant, as a consequence of the decision taken in the hospital to send him to the nursing home but which actually occurred while he was in the nursing home, came within the scope of the 2002 Act. The appellant applied, under the terms of the 2002 Act, to the notice party, the Residential Institutions Redress Board, which made a relatively small award in his favour. Thereafter, again in accordance with the terms of the 2002 Act, he sought a review by the respondent, the Residential Institutions Review Committee. The respondent did increase the award of compensation but it did not award him compensation in respect of injuries suffered by him while he was in the nursing home. The appellant commenced judicial review proceedings in which he principally sought an order of certiorari in respect of the Review Committee's decision on the basis of an assertion that the Review Committee was wrong in law not to award him compensation in respect of the relevant events which occurred at the Nursing Home. On the 16th July, 2014 the High Court (Kearns P), determined that the appellant was entitled to an award under the 2002 Act in respect of injuries suffered while in the nursing home and made an order of certiorari quashing the decision of the Review Committee and remitting the matter back to that Committee for further consideration. The Review Committee appealed against that decision to the Court of Appeal. On the 9th December, 2015, Kelly and Hogan JJ allowed the appeal of the Review Committee and discharged the order of certiorari. The appellant sought leave to appeal from that decision to the Supreme Court under Art. 34.5.3 of the Constitution. By a determination made on the 14th December, 2016, the Court gave leave to pursue such an appeal.

Held by Clarke CJ that the proper construction of the legislation as a whole allows for the payment of compensation in cases where the claimant suffers injuries after the claimant has ceased to be a resident in a scheduled institution but where the injuries concerned can be found to be a foreseeable consequence of abuse occurring while the claimant was so resident. It being accepted that the Review Committee did not award the appellant damages arising out of the injuries suffered in the nursing home, Clarke CJ held that the Review Committee was in error.

Clarke CJ held that the Court should allow the appeal and should direct that the matter be referred back to the Review Committee to determine the appropriate amount of compensation to be paid to the appellant.

Appeal allowed.

Judgment of the Chief Justice delivered the 24th October, 2017.

1. Introduction

1.1 The scheme to provide redress in relation to the harm suffered by so many in residential institutions over the years represented an important part of the way in which the State has sought to address the grave problems which began to come into the public domain over the last 20 years or so. The Commission to Inquire into Child Abuse also represented an important part of the State's response. However, the Residential Institutions Redress Act, 2002 ('the 2002 Act') provided for a scheme of compensation for those who had been resident in certain residential institutions which are specified in that legislation.

1.2 This appeal concerns one question of statutory interpretation which has at least the potential to make a significant difference to the circumstances of the applicant/appellant ('Mr. H.'). Mr. H. applied, under the terms of the 2002 Act, to the notice party ('the Redress Board'), which made a relatively small award in his favour. Thereafter, again in accordance with the terms of the 2002 Act, Mr. H. sought a review by the respondent ('the Review Committee'). For present purposes it is sufficient to note that the Review Committee did increase the award of compensation to Mr. H. but it appears to be accepted that it did not award him compensation in respect of injuries suffered by him while he was in a nursing home ('the Nursing Home'). It is that issue which lies at the heart of these proceedings and this appeal. It should be noted in passing that, by virtue of s. 28(6) of the 2002 Act, no information should be revealed which might identify either a claimant under the 2002 Act or any relevant institution.

1.3 Mr. H. had been resident in a Hospital ('the Hospital'). As a result of what would appear to have been accepted to be a misdiagnosis he was transferred to the Nursing Home. The Review Committee accepted that his transfer in those circumstances amounted to abuse within the broad definition of that term which is provided for in the 2002 Act. While in the Nursing Home Mr. H. was subject to a regime which was particularly harsh. The doctor in the Hospital who had, in substance, arranged for the transfer of Mr. H. to the Nursing Home was also in charge of the regime in that latter institution and so would have been fully aware of the regime which Mr. H. was likely to suffer on transfer. However, unlike the Hospital, the Nursing Home is not an institution covered by the 2002 Act. In those circumstances an issue arose as to whether the injuries suffered by Mr. H., as a consequence of the decision taken in the Hospital to send him to the Nursing Home but which actually occurred while he was in the Nursing Home, came within the scope of the 2002 Act. It was against that backdrop that Mr. H. brought these proceedings.

2. The Proceedings to Date

2.1 Mr. H. commenced judicial review proceedings in which he principally sought an order of certiorari in respect of the Review Committee's decision on the basis of an assertion that the Review Committee was wrong in law not to award him compensation in respect of the relevant events which occurred at the Nursing Home. On the 16th July, 2014 Kearns P., in the High Court, determined that Mr. H. was entitled to an award under the 2002 Act in respect of injuries suffered while in the Nursing Home and made an order of certiorari quashing the decision of the Review Committee and remitting the matter back to that Committee for further consideration. (See ex tempore judgment of the High Court (unreported, Kearns P., 16th July, 2014)).

2.2 The Review Committee appealed against that decision to the Court of Appeal. On the 9th December, 2015, the Court of Appeal (through judgments of Kelly and Hogan JJ.) set out the reasons for allowing the appeal of the Review Committee and discharged the order of certiorari. ( JGH v. Residential Institutions Redress Review Committee (2015) IECA 285).

2.3 Thereafter Mr. H. sought leave to appeal from the decision of the Court of Appeal to this Court under Art. 34.5.3 of the Constitution. By a determination made on the 14th December, 2016, ( JGH v. Residential Institutions Redress Review Committee (2016) IESC DET 148) this Court gave leave to pursue such an appeal in respect of the following questions:-

'1. Could a decision by a scheduled institution as prescribed by the 2002 Act to transfer a child to a non-scheduled institution constitute abuse within the meaning of the Residential Institutions Redress Act 2002?

2. In making a determination that such a decision constituted abuse within the meaning of the Act, was the Respondent entitled to apply common law principles of negligence including the principle of forseeability, having regard to

(a) the definition of abuse in s. 1 of the Act, which includes 'the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child', and

(b) the prohibition on addressing or making findings relating to any issue of fault or negligence set out in s.5 of the Act?'

2.4 This judgment, therefore, relates to the issues which this Court permitted to be raised on appeal by virtue of that determination.

3. The High Court and the Court of Appeal

3.1 Kearns P., in the High Court, came to the conclusion that what happened to Mr. H. in the Nursing Home amounted to abuse as that term is defined in the legislation. Neither of the judgments of the Court of Appeal disagreed with that finding and there is no appeal before this Court on that issue. Therefore, this judgment must operate on the basis that what happened to Mr. H. in the Nursing Home does constitute abuse for the purposes of the 2002 Act.

3.2 However, as both the High Court and the Court of Appeal judgments acknowledge, there is a second question which is as to whether injuries resulting from that undoubted abuse can be said to be compensatable under the terms of the 2002 Act given that the Nursing Home is not one of the institutions...