Padraic Hickey v Patrick Joseph Mcgowan and Another

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 24 January 2014
• Neutral Citation: [2014] IEHC 19
• Court: High Court
• Date: 24 January 2014

[2014] IEHC 19

THE HIGH COURT

[No. 1676 P/2001]

Hickey v McGowan & Ors

BETWEEN

PADRAIC HICKEY

PLAINTIFF

AND

PATRICK JOSEPH MCGOWAN, CHRISOPHER COSGRAVE

DEFENDANTS

O'KEEFFE v HICKEY 2009 2 IR 309

BARWICK v ENGLISH JOINT STOCK 1867 LR 2 EXCH 259

CHESHIRE v BAILEY 1905 1 KB 237

IMPERIAL CHEMICAL INDUSTRIES v SHATWELL 1965 1 AC 656

MORRIS v CW MARTIN & SONS LTD 1966 1 QB 716

WILLIAMS v A&W HEMPHILL LTD 1966 SC (HL) 31

TROTMAN v NORTH YORKSHIRE CO COUNCIL 1999 LLGR 584

LISTER v HESLEY HALL LTD 2002 1 AC 215

BAZLEY v CURRY 1999 174 DLR 45

NEW SOUTH WALES v LEPORE 2003 195 ALR 412

JOHNSON & JOHNSON (IRELAND) LTD v CP SECURITY LTD 1985 IR 362

DELAHUNTY v SOUTH EASTERN HEALTH BOARD 2003 4 IR 361

CIVIL LIABILITY ACT 1961 S9(2)

VARIOUS CLAIMANTS v CATHOLIC CHILD WELFARE SOCIETY & ORS 2012 3 WLR 1319

CIVIL LIABILITY ACT 1961 S35(1)(I)

High court – Litigation - Delayed child sexual abuse allegations - Recovered memory - Suppression of memories - Vicarious liability - Assault and battery - General damages - Liability - Close connection

Facts: In these proceedings, the plaintiff claimed that he was subjected to assault and battery by the second named defendant - a member of the Marist Order of Brothers and a teacher - from 1969 to 1972, when he was a pupil at St. John”s National School in Sligo. In particular, the plaintiff described instances of sexual assault being committed on him by the second named defendant in view of his classmates. Proceedings were also issued against the first named defendant on the basis that he was the Provincial of the Marist Brothers in Ireland and was vicariously liable for the acts of the second named defendant. The defendants denied the allegations that were made against them.

Evidence was given by four individuals who had been classmates of the plaintiff, who corroborated the account given by the plaintiff

Held by O”Neill J. that despite the historic nature of the allegations, the evidence that was given by the plaintiff”s classmates was highly consistent with each other and with the account given by the plaintiff. It was said that this evidence was considered to be reliable and truthful. As a result, it was held that the second named defendant had perpetrated sexual assaults against the plaintiffs as alleged. The plaintiff had also alleged battery, but it was held that the evidence given in this regard did not seem to suggest that the corporal punishment he suffered exceeded what was lawful at the time. It was clear that these proceedings had been brought after Gardaí contacted the plaintiff in regards to an ongoing investigation into the conduct of the second named defendant against pupils at St. John”s National School. At that time, the plaintiff had no memory of any sexual abuse by the second defendant but spontaneously began to remember certain events once he was interviewed; his memory strengthened over time. Nevertheless, it was held that this did not affect the plaintiff”s credibility because what had occurred was spontaneous recalling of suppressed memories and the Court was satisfied that this recovery of memory occurred as described by the plaintiff. The medical evidence before the Court also corroborated this analysis.

In assessing the award of damages to be made, it was held that whilst memories of sexual abuse did not form any part of the plaintiff”s consciousness between 1972 and 1999, the Court was satisfied that at a subconscious level they did affect him and impact upon his life. The medical evidence suggested that the plaintiff suffered a Post-Traumatic Stress Disorder as a result of the abuse, which in turn led to the suppression of his memories, and this was accepted by the Court. For those reasons, it was determined that the plaintiff”s life has been greatly impaired as a result of the actions of the second named defendant (though not catastrophically so) and should be awarded €350,000 in general damages - €250,000 for general damages to date and €100,000 for general damages in the future.

The next issue to be determined was the liability of the defendants to pay the damages. It was undisputed that as a member of the Marist Order of Brothers, the second named defendant was bound by a vow of obedience to follow the instructions of the Provincial. It was also clear that the Marist Order of Brothers effectively ran St. John”s, even though it was a national school, and that the manager of the school would have largely surrendered control to the Congregation. The plaintiff had issued proceedings against the first named defendant for vicarious liability but there was nothing to suggest that he or any other member of the Order other than the second named defendant had been involved in sexually abusing the plaintiff. It was clear that the application of vicarious liability involved the transfer of liability from a culpable party to another party who was blameless: in this case, from the second named defendant to the Marist Order of Brothers. For such an application to be made, a sufficiently close connection between the parties had to be established, but it depended very much on the circumstances of the case. Applying these principles to the present case, it was said that despite the second named defendant being entitled to a normal salary from the State as a National School Teacher, members of the Order were bound to surrender that salary to the Marist congregation. It was said that this made it clear beyond doubt that the relationship between the second named defendant and the Marist Congregation was a much closer one than the normal employer/employee relationship. Given the dominant relationship the Marist Congregation had over the second named defendant, it was held that there was a sufficiently close connection between the two and that the relationship was one from which vicarious liability could arise. The tortious acts were also said to be sufficiently connected to the duty that had been assigned by the Marist Congregation. The first named defendant was, therefore, held to be vicariously liable because the close connection test had been satisfied.

It was, however, determined that the manager of the school had a dual vicarious liability with the first named defendant although it was clear that his control over the running of the school was much lower. As a result, it was said that the manager was liable for 10% of the damages; but because he could not be sued as the action was time-barred, it was determined that the plaintiff should absorb this liability. He was, therefore, awarded €315,000 in total.

Award of €315,000 made.

1 1. In these proceedings, the plaintiff sues for damages for assault and battery perpetrated upon him by the second named defendant over a three-year period from 1969 to 1972, when the plaintiff was pupil in St. John's National School in Sligo where the second named defendant, as a member of the Marist Order of Brothers, was a teacher. The first named defendant, who is the head of or Provincial of the Marist Brothers in Ireland, is sued as being vicariously liable for the acts of the second named defendant. Although the plaintiff complains of physical abuse in the form of corporal punishment administered, that complaint did not feature much in the case, his primary complaint being of sexual abuse perpetrated by the second named defendant on him over the three years in which the plaintiff was in three classes, namely, fourth, fifth and sixth, which were taught exclusively by the second named defendant.

2 2. The second named defendant vehemently denies all of these allegations, contending that they are all lies. The first named defendant denies any liability in respect of the acts of the second named defendant, vicariously or otherwise.

3 3. The plaintiff was born in 1960 and grew up in Sligo town. He attended St. John's National School for four years. In the first of these, he was in a class conducted by a Brother Mel and for the remaining three years, from 1969 through to 1972, he was in the second named defendant's class. The evidence establishes that at all times, there were, by modern standards, a very high number of pupils in this class; always well in excess of fifty and sometimes over sixty pupils. As a consequence, I am satisfied that the two classrooms that were used were crowded places with the pupils' desks immediately in front of the teacher's table or desk and with some desks at the side of the teacher's desk.

4 4. The plaintiff, in his evidence, described becoming involved with the school band. He had to learn to play the tin whistle and the drums. The second named defendant was in charge of these activities and taught both of the foregoing instruments. Whilst the second named defendant was teaching the plaintiff to play the drums, the plaintiff says that he began a practise of holding the plaintiff in a close manner and of bringing his face into very close proximity with the plaintiff's face. This type of activity, the plaintiff said, then continued in the normal classroom. It was the plaintiff's evidence that he would frequently be instructed by the second named defendant to come to the top of the class to a position adjacent to the second named defendant's desk, either under the pretext of reading to the class or of being assisted in learning by the second named defendant. Whilst in this position, the second named defendant began to hold the plaintiff very close to him so that the second named defendant's face either touched or was very close to the plaintiff's face. Next, the plaintiff says the second named defendant began rubbing his legs and this evolved into fondling his anus and genitalia, initially outside his clothes, but then inside his clothes and at times inserting a finger into the plaintiff's anus. Whilst all of this was happening, the plaintiff was...