Supreme Court: Religious Order vicariously liable for abuse suffered by former national school pupil

About this case:

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The current Provincial of the Marist Order Brother Patrick McGowan appealed a High Court judgment which awarded the man €315,000 after assessing the Order’s contributory negligence to be 90%. Although the appeal was successful to the extent that contributory negligence was adjudged to be split equally between the Order and the school manager, and the overall award for personal injury was significantly reduced; the Supreme Court upheld the finding of vicarious liability.

Factual background

From 1969 to 1972, while attending St John’s National School, Pádraig Hickey (56) was taught by Christopher Cosgrove who was then a Marist Brother. During these three years, ex-Brother Cosgrove sexually abused Mr Hickey on an almost daily basis, and the Court heard that an unusual factor in the case was the fact that it was alleged by Mr Hickey and other boys in the class that the abuse occurred in the classroom.

The school was “a Marist school” in the sense that the principal was a Marist Brother and the teachers in it at that time were nearly all Marist Brothers. They were selected for their positions, and directed to take up those positions, by the provincial of the Marist Brothers in Ireland.

The first defendant in the case, and the sole appellant in the Supreme Court, Brother Patrick McGowan did not abuse Mr Hickey but is the present Provincial of the Marist Order.

The High Court

In the High Court in January 2014, Justice Ó’Néill assessed general damages against ex-Brother Cosgrove at €250,000, and €100,000 in respect of general damages in the future, totalling €350,000.

Justice Ó’Néill concluded that the day to day control of the activity of a teacher would have rested exclusively within the realm of the Marist congregation, rather than the manager of the school.

Ultimately it was held that the relevant manager was also vicariously liable as the effective employer of ex-Brother Cosgrove. Notwithstanding this finding of liability, Mr Hickey had not sued the manager, the action was now statute barred by virtue of s.9(2) of the Civil Liability Act 1961, and the liability of that party was to be attributed to Mr Hickey “by virtue of the provisions of s.35(1) of the Civil Liability Act 1961 which provided that for the purposes of determining contributory negligence where the plaintiff’s damage was caused by concurrent wrongdoers and the claim against one had become statute barred, the plaintiff should be deemed responsible for the acts of such wrongdoing”.

Accordingly, Justice Ó’Néill concluded that the manager was only 10% responsible, and the damages against ex-Brother Cosgrove were reduced by €35,000 to €315,000.

The Supreme Court

At issue on appeal was the liability of any other party, and in particular Brother McGowan, for the abuse committed against Mr Hickey.

Mr Justice Donal O’Donnell stated that in order to consider that matter, and in particular the claim that Brother McGowan was vicariously liable for the damage suffered by Mr Hickey; it was necessary to examine the status of Brother McGowan and ex-Brother Cosgrove vis-à-vis each other, and the position of ex-Brother Cosgrove in the school, and the contractual and other relationships governing his position.

Vicarious liability

The common law considers a religious order such as the De La Salle Order in Catholic Child Welfare Society and Ors. v. Various Claimants (FC) and Ors UKSC 56 (CCWS), or the Marist Order, as an unincorporated association.

Justice O’Donnell explained that it was “essential to the very nature of an unincorporated association that it is not a body corporate” and that it could therefore not be treated as such.

As members of an unincorporated association, Justice O’Donnell found that members of the Order did not have any direct liability for the acts of others; but that “they have a vicarious liability for the acts of other members”.

Justice O’Donnell clarified this point to agree with Brother McGowan that “any current member of the association is not vicariously liable for acts of a member prior to the defendant becoming a member of the association”. That being said, it was not explicitly pleaded that Brother McGowan joined the Order after 1972, and therefore after the abuse, and so this point was not addressed in evidence.

Contributory Negligence

Pursuant to s.34 (1)(a) of the Civil Liability Act 1961, Justice O’Donnell apportioned responsibility equally between the Order and the manager. In his analysis, he stated 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”.

Reducing the overall general damages to a figure of €150,000, when the deemed contributory negligence under s.34 was taken into account, this resulted in an award of €75,000.

Conclusion

In a judgment with which only Mr Justice Peter Charleton partly dissented, Justice O’Donnell agreed with the High Court’s finding that the Marist Order as an unincorporated organisation could be vicariously liable, Brother McGowan’s appeal was allowed to the extent that the contributory negligence of the school manager was assessed at 50%, and the final award made against Brother McGowan as Provincial of the Marist Order was reduced to €75,000.