Appeal No: 147/14

IpsofactoJ.com: International Cases [2017] Part 2 Case 5 [SCIre]


SUPREME COURT OF IRELAND

Coram

Patrick Joseph McGowan

- vs -

Pádraig Hickey

Denham CJ

O’Donnell J

MacMenamin J

Dunne J

Charleton J

9 FEBRUARY 2017


Judgment

O’Donnell J

  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.

  5. The Facts

  6. The underlying facts of these proceedings have been set out in a judgment of the High Court (Ó’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.

  7. 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 defendant. The plaintiff said these activities occurred several times every week and they were a cause of great upset to the plaintiff and that he was powerless, in the context of what was described as the position of authority of the second defendant and his close relationship with the plaintiff’s family, to do anything about it, and that he lacked the language to express his distress.

  8. It is the nature of sexual abuse that it often occurs in private and secluded circumstances. Here, however it was alleged by the plaintiff, and found by the High Court, that the abuse took place largely in public and significantly the plaintiff’s evidence in this regard was corroborated by four other boys who had been in the class. Again, somewhat unusually, the alleged abuser, the second named defendant, gave evidence and denied any abuse. The High Court judge accepted the evidence of the plaintiff and the degree of corroboration provided by the evidence of the other boys, and rejected the second named defendant’s denials. Accordingly he concluded that the plaintiff had indeed been abused by the second named defendant. Although these matters were the subject of considerable contention during the course of the trial, and occupied much attention during it, they are not now in issue for the purposes of this appeal and the matters debated between the first named defendant and the plaintiff. Accordingly, the starting point for this Court, is the finding that the plaintiff was abused by the second named defendant.

  9. The trial judge accepted that although the plaintiff had no memory of the events until contacted by the gardaí in the course of a criminal investigation, nevertheless it is now clear that these matters had a significant impact upon him and his life and indeed that the fact that the plaintiff blocked the matter out of his memory illustrated how traumatic the abuse was for him. In the circumstances 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. However, that brought the Court to the issue which has been central to the appeal, as to the liability of any other party, and in particular the first named defendant, for the abuse committed against the plaintiff. In order to consider that matter, and in particular the claim that the first named defendant was vicariously liable for the damage suffered by the plaintiff, it was necessary to examine the status of the first and second named defendants vis-à-vis each other, and the position of the second named defendant in the school, and the contractual and other relationships governing his position.

  10. The evidence in this regard was fairly scanty. It is however not now in dispute that at the relevant time between 1969 and 1972, the second named defendant was a brother in the Marist congregation. As such he had taken vows of chastity, poverty and obedience. The Marist congregation had a hierarchical structure which was international, provincial and local. The second named defendant was subject to the authority of the Superior in the house to which he belonged. The congregation of Marist Brothers was divided into provinces, each province having at its head a provincial. St. John’s National School in Sligo was a national school subject to the prevailing legal regime for the governance of national schools discussed in the judgments of the Supreme Court in O’Keeffe v Hickey [2009] 2 I.R. 302. Evidence was given by Father Hever, the current administrator of the cathedral parish in Sligo, in which parish St. John’s National School was located. The administrator of the parish on behalf of the Bishop, who was the patron, was the manager of the school, and it was he who discharged the function of legally appointing teachers to the school, including the principal. The curriculum pursued and the academic standards required was regulated by the Department of Education which operated the school inspectorate system.

  11. In the words of the trial judge, 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. That congregation was dedicated to the care of the young and in pursuit of this primary objective, the principal activity engaged in was teaching. In essence therefore, the school was a national school with a manager who was the legal employer of teachers: those teachers were supplied by the Marist Order. The trial judge concluded that the day to day control of the activity of a teacher would have rested exclusively within the realm of the Marist congregation; initially between the teacher and the principal of the school, and if issues were not resolved within that relationship, then within the hierarchal structure of the Marist Order. Only in the extraordinary circumstances of a Marist Brother defying the authority of his superiors in the congregation would it have been necessary, the trial judge considered, to have involved the manager of the school to resolve problems or difficulties in connection with the discharge by the teaching brother of his teaching duties. The judge considered that the Marist congregation had therefore full control on a daily basis over the management of the national school in the relevant years.

  12. The trial judge referred in his judgment to a then recent decision of the United Kingdom Supreme Court in the case of Catholic Child Welfare Society v Various Claimants (FC) and Ors. [2012] U.K.S.C. 56 (“CCWS”) which had been delivered on the 21st November, 2012, very shortly before the hearing in this case commenced. There is no doubt that the High Court relied heavily upon the analysis in that judgment. Indeed the appellant contends that in the absence of an adequate evidential foundation in the case itself, the plaintiff resorted to the CCWS case not just to supply a legal analysis for imposing liability but also to fill the evidential gaps in the case. In the event, the High Court concluded that the Marist Order had control of the school on a day to day basis, and that “the well-known identity of the Marist Congregation can [not] simply disappear in to the sands of unincorporated association”. Accordingly the judge stated at paragraph 69:

  13. I would follow the reasoning of Lord Philips in the CCWS case and hold that it is right to approach this case on the basis that the Marist Brothers were a corporate body existing to perform the function of providing a Christian education to boys and that the first named defendant is sued as a representative of that body, which is vicariously liable for the tortious acts of the second named defendant.

  14. The High Court then turned to the plea made on behalf of the first named defendant, and held that the relevant manager was also vicariously liable as the effective employer of the second named defendant. However the plaintiff had not sued the manager, and 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 the plaintiff by virtue of the provisions of s.35(1) of the Civil Liability Act 1961 which, so far as is relevant, 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. The High Court judge concluded that the manager was however only 10% responsible, and accordingly the damages against the second named defendant were reduced by €35,000 to €315,000.

  15. The Procedural History

  16. The progress of this case has been a depressing story of inadequate pleading, missed opportunities, lack of clarity, confusion and error. The plaintiff had been living in Cornwall in the late 1990’s and was alerted to the events in his childhood by the visit of the gardaí then investigating allegations of child abuse in the school. He cooperated with the inquiry, became a witness in the criminal proceedings, and at some stage instructed solicitors to initiate civil proceedings. A letter was prepared addressed to the first named defendant (the Provincial), the second named defendant (the perpetrator) and the Attorney General, Ireland and the Minister for Education (the State parties). It does not appear however that the letter was ever sent to the first named defendant so he was not alerted to the claim at that time. A plenary summons was then issued on the 6th of February 2001 naming the five parties above as defendants. It appears however it was only served at the time on the second named defendant. Accordingly the state parties were unaware of the proceedings, and the first named defendant and accordingly the Marist Order more generally, were unaware of any claim by the plaintiff, until 2008. After this fitful and sporadic start the proceedings fell into abeyance. A statement of claim was sent to the State defendants with a demand that a defence be delivered. The defendants replied pointing out reasonably that no plenary summons had ever been served. Eventually in 2008, the plaintiff changed solicitors. The new solicitors brought an application to extend the time for service of the plenary summons. However they decided not to pursue a claim against the State defendants in light of the judgment of this Court in O’Keeffe v Hickey now reported at [2009] 2 I.R. 302. In effect therefore the renewal of the plenary summons was critical to the claim against the first named defendant. It bears noting that seven years had been spent during which the sum total of the progress of the claim against the first named defendant was that a letter was prepared but not sent, and a plenary summons prepared but not served. This was in the context of a claim related to a period almost 30 years before the original date of the preparation of the plenary summons. The High Court nevertheless renewed the plenary summons and permitted service on the first named defendant. The first named defendant brought an application to set aside the order renewing the plenary summons, but this was unsuccessful.

  17. The manner in which the claim was pleaded against the first named defendant.

  18. The statement of claim identified the first named defendant as a Provincial of the Marist Order. The claim made against the first named defendant was that the Order was responsible for the wrongdoing of the second named defendant who was a member of the Order. This was a basic, not to say a rudimentary form of pleading the case. The defence by contrast was a much more elaborate document. It raised a number of issues but in respect of the issue which has most occupied time in this Court, the critical plea is that found at paragraph four:

  19. The Plaintiff discloses no cause of action as against the First named Defendant on the basis inter alia that the religious order described as the Marist Brothers is an unincorporated association, whose members are not liable in law, either directly or vicariously, for any act or default of each other. Further, and without prejudice to the foregoing, the current members of the Order are not liable directly or vicariously for any act or default of any member of the Order committed prior to their becoming members thereof.”

  20. With the wisdom of hindsight it is possible to see, even at this stage and in this respect, that the issues between the parties had not been identified with the clarity which is desirable in every case, but essential in a case raising novel and complex issues of law. At the hearing we were also informed that there was an exchange of correspondence in which the plaintiff’s solicitors sought agreement from the first named defendant’s solicitors, that the first named defendant could be treated as a representative of the Marist Order. This was refused by the solicitors on behalf of the first named defendant. If the plaintiff’s advisors had in mind some form of obligation to compel this course, then nothing ensued and the proceedings meandered onwards. This pattern of sporadic and somewhat ineffectual efforts on behalf of the plaintiff which were met with a barrage of technical complications raised by the first named defendant characterised the progress of this case. However, a defendant is entitled to be punctilious, technical and difficult, though such a course is not without risk. There is no such excuse for ineffective efforts on behalf of a plaintiff. The terms of paragraph four of the defence, and the uncompromising position taken in the correspondence were unmistakable signals that real and difficult issues were going to be raised by the defendant and that the plaintiff could not rely on concessions or agreements or some tacit understanding that the first named defendant could be taken to represent the Marist Order. Questions as to whether the correct defendant has been sued are major traps for plaintiffs and their advisors. Such issues, particularly in a case where there has been a significant lapse of time, require to be addressed, but in this case it appears they were not.

  21. The Hearing

  22. The hearing commenced in November 2012, and occupied eight days in the High Court. The plaintiff’s case focussed essentially on matters of fact. This may have been a consequence of the fact that unusually the second named defendant was represented in the proceedings and adopted an approach bearing similarities to the defence in the criminal trial and which involved a stubborn refusal to concede anything. It may have been assumed, therefore that the difficult issue was proof of abuse as a matter of fact, and that once established it would be follow that the first defendant would be liable. However, the first named defendant for its part raised a number of technical and substantive issues. Counsel for the first named defendant has suggested that the emergence of the judgment in the CCWS case just days before the commencement of the hearing was treated by the plaintiff as a form of deus ex machina which solved all legal problems. Counsel for the plaintiff in this Court (who it should be said was not involved in proceedings before this appeal, and who argued the appeal with skill and tenacity) sought to advance the narrow argument that while the evidence was sparse, there was enough evidence to permit the High Court to reach the conclusions it had, and those conclusions were now effectively beyond challenge in this Court. I cannot agree that this narrow approach is a satisfactory way to resolve an already tangled case. It is necessary therefore to address in some detail the argument advanced by the first named defendant.

  23. The evidence on the question of the organisation of the Order and the interaction of the Order with the school, was sparse indeed. Discovery had not been sought. The only evidence on the issue seemed to be gleaned indirectly from the evidence of the second named defendant himself, and from Canon Hever who was the manager of the school. Apart from seeking to exploit evidence from these witnesses (who had not been called by the plaintiff) the plaintiff adduced direct evidence from a theologian recruited apparently only a day or two before the High Court hearing began. That evidence was at a level of exceptional generality about the constitution of religious orders. Given the dearth of evidence the first named defendant argues that the plaintiff and subsequently the High Court, were driven to rely on the decision in CCWS not just as providing a template for legal analysis, but even to fill the evidential gaps in the case. There is in my view more than a little merit in this criticism.

  24. The first named defendant argues that O’Keeffe v Hickey requires “intense concentration” on the facts of the case to allow a conclusion to be drawn on the controversial issue of vicarious liability for sexual abuse carried out by another party. Nothing further from such intense scrutiny of the facts could be imagined, it was said, than the threadbare fragments of evidence gathered together in this case. The first named defendant contends that there was simply no evidence allowing the Court to conclude that the school was under the control of the Marist Order, particularly when there was a manager in place who had a legal obligation to run the school and who was in law the employer of the second named defendant. Furthermore, the first named defendant argued that the CCWS case was itself in fact a vivid illustration of the inadequacies of the plaintiff’s case here. There, a large number of individual defendants had been sued, discovery obtained, and detailed evidence given as to the operation of the school and the involvement of the various parties in it. In addition, important concessions were made by the representatives of the religious order in that case. Furthermore, and in any event, the defendant contended that the factual and legal circumstances involved in the CCWS case, were markedly different. If, as was agreed, the issue involved intense concentration on the facts, then it was argued it was an impermissible departure from such an approach, to treat the CCWS case as analogous to this. In particular, CCWS involved a residential school for troubled children who were particularly vulnerable. The staff, in that case the religious brothers, were on the site and in close contact with the children 24 hours a day, and provided a form of parental care. Here by contrast, the case involved a standard national school which was a day school in a substantial provincial town in Ireland. There was no suggestion that the children were particularly vulnerable. Contact was during school hours and as teachers. It negated the intense scrutiny approach emphasised by O’Keeffe v Hickey if fundamental factual distinctions like this were to be ignored. Finally and in any event the first named defendant argued that even if the Court were to consider that the facts of CCWS were sufficiently close to this case to make it available as a precedent, the Court should nevertheless not adopt the approach in CCWS, which, it was argued was unduly vague and unprincipled.

  25. The CCWS case is undoubtedly an important case in a sequence of recent cases at the highest level in courts of common law countries concerning the difficult question of liability for sexual abuse of children. However, a useful starting point in this jurisdiction is in my view the decision of this Court in O’Keeffe v Hickey. That case involved a claim against a school teacher and the State parties, for sexual abuse carried out in a national school. Judgment in default of pleadings was obtained against the school teacher. The only issues therefore remaining in O’Keeffe v Hickey were in regard to the direct liability or the vicarious liability of the State parties. Significantly, proceedings had not been issued against the manager or patron of the school, there, as in most cases, the local parish priest and bishop respectively. The case involved a very careful analysis of the unique structure of national schools in Ireland pre-dating independence. The High Court dismissed the plaintiff’s claim for direct liability on the part of the State parties for negligence in the management or inspection of the school. That decision was not appealed. Accordingly the only issue in the Supreme Court was whether the State was vicariously liable for the wrongdoing of the principal which for the purposes of the proceedings was now established. Geoghegan J. was prepared to hold that the State parties were vicarious liable for the sexual abuse. The majority of the Court however dismissed the claim. Two substantial judgments were delivered by Fennelly and Hardiman JJ. which came to the same result but for very different reasons. It is I think clear that it is the judgment of Fennelly J. (with whom Murray C.J. and Denham J. (as she then was)) which represents the majority view on the law of vicarious liability for sexual abuse. However, Hardiman J.’s powerful judgment (with which Murray C.J. also agreed) is in my view very useful in identifying the critical issues argued and determined in the Supreme Court, and casts a useful light on the judgment of Fennelly J.

  26. Hardiman J. reviewed the development of the law of vicarious liability. He pointed out that vicarious liability represents liability without fault for the wrongful acts of another. It is a threshold question in any case in which the law of vicarious liability is sought to be expanded, to determine why a person or body who may be liable if shown to be at fault, should be made liable without fault or culpability of any kind. The classic case of vicarious liability is the responsibly of an employer for the acts of an employee. There is of course no difficulty in imposing liability on an employer whose employee acts on his or her instructions. But liability could also attach for unauthorised acts, and indeed acts contrary to the employer’s instructions. The test was first formulated by the distinguished authors of Salmond and Heuston on the Law of Torts, and repeated for much of the 20th century. It is set out, for example, at pp. 521 to 522 of the 19th edition, Heuston & Buckley, Salmond and Heuston on the Law of Torts (London: Sweet and Maxwell, 1987) as follows:

  27. An employee’s wrongful conduct is said to fall within the course and scope of his or her employment where it consists of either

    (1)

    acts authorized by the employer or

    (2)

    unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes – although improper modes – of doing what has been authorized: Canadian Pacific Railway Co v Lochart [1942] A.C. 591 at 599.

    This test contemplates some liability for unauthorised acts, but is still quite strict: the act may not have been expressly or impliedly authorised by the employer (indeed may have been forbidden by him or her) but liability may attach but only if the act is viewed as a “mode – although improper mode – of doing what has been authorized”. It is apparent that sexual abuse of a pupil by a teacher cannot on any version be considered to be merely an improper mode of doing the authorised task of teaching and nurturing a child. It is indeed the antithesis of what was authorised and intended, and amounts to a serious criminal offence. It is apparent therefore, that liability cannot attach to an employer for sexual abuse if the Salmond test is maintained.

  28. In essence, Hardiman J. considered that the Salmond test should be maintained as he considered that the policy justifications underpinning it were justified, whereas he was sceptical of more expansive approaches which had found favour in other jurisdictions and among textbook writers on the basis that they ensured recovery of damages by a plaintiff who had suffered significant injury. At paragraph 41 of the judgment he said (p.317):

  29. I do not feel the unqualified enthusiasm which the authors evince for what they believe to be the modern theory of vicarious liability. The fact that a person or entity may have some resources (if only a private dwelling house) does not in and of itself, in my opinion, convert him, her or it, into a “deep pocket”. More fundamentally, even if the pocket is genuinely deep, that fact cannot in ordinary justice support the imposition of liability on such a person where it would not be imposed on a poorer person. And it is, with every respect, fatally easy for a writer in his study to dismiss another person as a “deep pocket” when that other is not such and does not so regard himself.

  30. Fennelly J.’s judgment can usefully be read in the light of the trenchant position adopted by Hardiman J. Fennelly J. pointed out that it was already well established law that an employer could be vicariously liable for the wrongful acts of an employee including criminal acts: Lloyd v Grace, Smith & Co. [1912] 1 A.C. 716 and Johnson & Johnson (Ireland) Ltd. v C.P. Security Ltd. [1985] I.R. 362. On balance, Fennelly J. was prepared to apply the close connection test which seemed to have been adopted by the majority of the House of Lords in Lister v Hesley Hall Ltd. [2002] 1 A.C. 215 and the majority of the Canadian Supreme Court in Bazley v Curry (1999) 174 D.L.R. (4th) 45 (p.378):

  31. Ultimately, I am satisfied that it is appropriate to adopt a test based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made .... The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J. [in Delahunty v South Eastern Health Board [2003] 4 I.R. 361] provides an excellent example of a practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v Curry (1999) 174 D.L.R. (4th) 45 the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.

  32. The power and depth of analysis in both judgments is apparent, but the significant divergence between them is obscured somewhat by the fact that the two judgments came to the same conclusion in O’Keeffe v Hickey: the State parties were not vicariously liable for the criminal acts of the principal school teacher. On the facts of the case, it might be said that there was a connection and perhaps even a close connection between the abuse and the teaching – although as Fennelly J. observed the abuse took place during private lessons outside school time – but there was no sufficiently close connection between the State parties who were the defendants and the teaching in question. The result of the case was therefore heavily influenced by the distinctive structure of national school teaching in Ireland. In particular the existence of a management system which had both control over the teacher and was his employer, was particularly important. The existence of this employer weighed heavily against the State having vicarious liability on the analysis in both judgments.

  33. Notwithstanding this coincidence of result, it is apparent that the reasoning of the two judgments diverges sharply and in an appropriate case would lead to quite different results. The debate between the two judgments can be seen more clearly if the issue of the liability of the school manager, which lay in the background to O’Keeffe v Hickey, is considered. Although both judgments were careful not to reach any concluded position in that regard in the absence of any defendant in a position to argue the case, it is certainly much more likely that such a manager could have been found liable under Fennelly J.’s close connection test, and unlikely, perhaps highly unlikely that a manager could be found liable under Hardiman J.’s adherence to a strict “unauthorised mode of performance of the task” test. I think it is clear however that the judgment of Fennelly J. must be taken now to represent the law. This is not simply because it was agreed to by two other members of the Court, but, it must be recalled, Geoghegan J. delivered a judgment in which he would have dismissed the appeal and held the State parties to be vicariously liable.

  34. However as already observed, in my view, the judgment of Hardiman J. remains important not simply because of its rigorous analysis, but also because it casts light on the judgment of Fennelly J. Therefore when Fennelly J. states that everything depends upon the facts of the case, and that the facts must be carefully analysed, he considered that the test he adopted was more expansive than that asserted by Hardiman J., but not decisively so. An employer may (not must) be liable for sexual abuse carried out by his employee or a person for whom he or she is vicarious liable.

  35. A number of conclusions can be drawn from O’Keeffe v Hickey which are important for this case. First, as already observed, the judgment of Fennelly J., and the close connection test must be taken to represent the law in Ireland. Second, even though there was not a residential component to the school and the children were not particularly vulnerable, it seems clear that that test was satisfied in this case. The abuse took place during the very act of teaching in the classroom. Indeed, this seems to have been tacitly accepted in this case insomuch as the case proceeded on the assumption that the manager employer was vicariously liable for the abuse. It follows therefore that there was a close and sufficient connection between the teaching carried out and the criminal abuse. Third, and perhaps most importantly, the issue which divided the Court in O’Keeffe does not therefore arise here. The question is not whether the act done is one for which a person is otherwise vicariously liable for the acts of another should be responsible i.e. whether on this occasion the employer or anyone else should be liable for an act of sexual abuse. That issue must be taken to be satisfied in this case both on an application of the close connection test in general, and the attribution of liability to the manager in particular. The question here for determination is a separate and perhaps anterior one: is the first named defendant either on his own behalf or as a representative of the Marist Order vicariously liable for the acts of the second named defendant (including in this case the sexual abuse)? That question, as we shall see, leads to another question as to the legal nature of a religious order, but for present purposes it is easier to treat the first named defendant Brother McGowan as essentially indistinguishable from the Order itself. The question therefore becomes whether the Order (or its members) is vicariously liable for the actions of a member. Taking the classic case of vicarious liability as the relationship between an employer and an employee, the question becomes whether the relationship between an order (or its members) and another member is such to give rise to vicarious liability for a wrongful act, it being accepted that if vicarious liability arises, it may, in an appropriate case, extend to acts of sexual abuse. That issue (and the related issue of the legal status of a religious order) were the subject of consideration in the CCWS case and it is not surprising therefore that the High Court judgment under appeal relied on the reasoning of the judgment of the Supreme Court of the United Kingdom, as indeed was stated expressly in the passage of the judgment set out at paragraph nine above. It is necessary therefore to consider that judgment in some detail.

  36. Catholic Child Welfare Society and Ors. v Various Claimants (FC) and Ors. [2012] U.K.S.C. 56.

  37. The plaintiffs in these proceedings were pupils at a residential school in Yorkshire. Originally the school had been a reformatory, later an approved school for young offenders, and latterly an assisted community home for children in the care of the local authority. The school had been established initially by Catholic benefactors and at the relevant time was managed by two diocesan bodies responsible to the diocese of Middlesbrough who were the legal employers of the teachers and staff working there. The Institute of the De La Salle Order (referred to in the judgment as “the Institute”) had been invited by the diocesan bodies to run the schools. Members of the Order lived on the grounds of the school. The pupils were self-evidently vulnerable children placed in their care. However over a period of some 20 years boys were abused in particular by the headmaster who was later convicted of a series of offences in respect of his activities at the school. It is alleged that other pupils were abused by another brother. There were over 170 plaintiffs and the proceedings were in the nature of a test case.

  38. In the proceedings the claimants sued the principal perpetrator as the direct tortfeasor and another 35 defendants who it was alleged were responsible in law for his wrongdoing. Those defendants could be divided in to two broad groups: the diocesan bodies who were the legal manager of the school and employer of the staff (“the diocesan bodies”), and members of the De La Salle Order (“the Institute”). A preliminary issue was directed to be tried on the vicarious liability of both sets of defendants. The High Court held that the diocesan bodies were vicariously liable for acts of abuse by staff but the Institute (or its members who were defendants) was not. This decision was upheld by the Court of Appeal. However, the Supreme Court of the United Kingdom in a unanimous decision, overturned the decision of the Court of Appeal and held that the Institute was vicariously liable along with the diocesan bodies for the sexual abuse carried out by the headmaster and other members of staff. There is a certain imprecision in the description of these defendants which, for reasons which will become clear, is unavoidable at this stage. However, for present purposes it can be said that the conclusion of the Supreme Court was that where sexual abuse was perpetrated on vulnerable children attending a residential school by a person employed by one body, and who was a member of religious order, both the employer and the order could be vicariously liable for that abuse.

  39. The only judgment was that of Lord Phillips of Worth Matravers. He referred to a Court of Appeal decision in E v English Province of Our Lady of Charity [2012] E.W.C.A. Civ. 938 which had been decided shortly after the Court of Appeal decision in the CCWS case. The leading judgment in the E case had been given by Ward L.J., and to a large degree, Lord Phillips preferred the analysis in that judgment, to that of the Court of Appeal (and the High Court) in the CCWS case. The judgment commenced by observing that the Institute was as a matter of law an unincorporated association. However, he observed at paragraph 19 that “the law of vicarious liability [was] on the move”. The basic position as a matter of history was encapsulated in the “course of employment test”. Since that test had been developed however, the law had developed in a number of ways. Unincorporated associations had been held to be vicariously liable for the tortious acts of a member citing in this regard

    Vicarious liability was possible even when the acts of the employee were unauthorised, in breach of duty to the employer, and even criminal. It was also possible for two (or more) defendants to be vicariously liable for the acts of another.

  40. Any case of vicarious liability involves wrongful acts of one defendant (D1) and a determination that in addition another defendant (D2) who themselves are innocent of wrongdoing are nevertheless liable for the tort of D1. Lord Phillips explained that any determination of the existence of vicarious liability involved two separate but connected steps: firstly whether the relationship between D1 and D2 was such as to give rise to vicarious liability for any acts, and second, whether such liability could extend to certain acts or actions. The first question involved an analysis of the relationship between D1 and D2, and the second a consideration of the connection between the actions complained of and that relationship. Most focus in the CCWS case was upon the first question, that is the relationship between an individual brother and the Institute or Order. Lord Phillips also addressed the question of the status of a religious order, and as he described it, “the problem of the Institute” (para 27). This indeed had been a significant feature in the Court of Appeal decision which had held there was not a sufficiently close connection between the brothers of the Institute around the world and the torts committed by the brother teachers at the school in question to given rise to vicarious liability. This prompted Lord Phillips to raise the question of whether it was “right to treat the De La Salle Defendants as being simply an unincorporated band of brothers scattered around the world” (para.27). This issue, as Lord Phillips noted, arose from the fact that the common law did not recognise the Catholic Church as a legal entity in its own right, but saw it as an unincorporated association with no legal personality and which held property through the mechanism of trusts. He addressed and resolved this question for the purposes of this case in three important paragraphs in the judgment:

  41. 31.

    I can appreciate Hughes LJ’s difficulty in accepting that a De La Salle brother in Australia could be vicariously liable for the sexual assault by a brother at St William’s. Indeed, there is something paradoxical in the concept of an attempt to hold vicariously liable a world wide association of religious brothers, all of whom have taken vows of poverty and so have no resources of their own. So far as individual defendants are outside the jurisdiction this might also have given rise to an interesting question of conflict of laws. This is, however, a long way from the realities of these proceedings and Lord Faulks has not taken any point on the nature of the Institute.

    32.

    It is open to the claimants on the pleadings to seek to establish vicarious liability on the part of an unincorporated association made up at the relevant times of the brothers world wide, or of members of the London Province, or of the England Province, or of the Great Britain Province. At the end of the day what is likely to matter will be access to the funds held by the trusts, or to insurance effected by the trustees. Whether one looks at the picture world wide, or within Great Britain, the salient features are the same. The Institute is not a contemplative order. The reason for its creation and existence is to carry on an activity, namely giving a Christian education to boys. To perform that activity it owns and manages schools in which its brothers teach, and it sends its brothers out to teach in schools managed by other bodies. The Institute is, for administrative purposes divided into Provinces, each administered by its Provincial. To carry out its activities it has formed trusts that have recognised legal personality. The trusts are funded in part from the earnings of those brothers who receive payment for teaching. The trust funds are used to meet the needs of the brothers and the financial requirements of the teaching mission.

    33.

    It seems to me more realistic to view the brothers of the Province from time to time responsible for the area in which Market Weighton lies as members of the relevant unincorporated association rather than the Order as a whole, but I doubt if it makes any difference in principle. Because of the manner in which the Institute carried on its affairs it is appropriate to approach this case as if the Institute were a corporate body existing to perform the function of providing a Christian education to boys, able to own property and, in fact, possessing substantial assets.

    [emphasis added]

  42. Treating the individually named defendants as if they were a single corporate body able to own property and possess substantial assets, the judgment then turned to the question of whether that body could be vicariously liable for the acts alleged in this case. The judgment observed that vicarious liability was a longstanding and vitally important part of the common law. In the majority of modern cases the defendant is not an individual but a corporate entity and vicarious liability was likely to be the basis on which the defendant was sued. He continued (para. 34):

  43. The policy objective underlying vicarious liability is to ensure, insofar as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread. It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability.

  44. Coming to the conclusion in relation to the CCWS case, Lord Phillips adopted much of the analysis in E v English Province of Our Lady of Charity, albeit that case concerned the liability of a bishop for a diocesan priest. The “crucial features” identified were (para. 48):

  45. that the priest was appointed in order to do the work of the church with the full authority to fulfil that role, being provided with the premises, the pulpit and the clerical robes. He was directed into the community and given free rein to act as representative of the church. He had been trained and ordained for that purpose and his position of trust gave him great power.

  46. Lord Phillips considered that the case for finding vicarious liability was much stronger in the CCWS case than it was in E v English Province of Our Lady of Charity. The features which were relevant in this regard were:

    1. the Institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body;

    2. the teaching activity of the brothers was undertaken because the Provincial directed the brothers to undertake it;

    3. the teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the Institute; and

    4. the manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules.

    Lord Phillips also suggested a simpler analysis at paragraph 61:

  47. Provided that a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage 1, just as in the case of the action of a member of a partnership. Had one of the brothers injured a pedestrian when negligently driving a vehicle owned by the Institute in order to collect groceries for the community few would question that the Institute was vicariously liable for his tort.

    The High Court Judgment

  48. The High Court judgment expressly adopted the analysis in the CCWS case and in the passage at paragraph 69 of the judgment already quoted, treated the Marist Order as if it were a corporate body of which the first named defendant could be regarded as the representative. Indeed, the appellant submitted that the extent to which the High Court was forced to rely upon the judgment extended to utilising the judgment to supply some of the manifest inadequacies of the evidence in this case. In particular there was, it was argued, no evidence whatsoever as to the day to day running of the school and in particular the interaction, if any, between the Marist Order and the manager, and therefore no evidence to support the conclusion that the Marist Order was in control of the school or the teaching activity of its members in the school.

  49. I agree that the evidence here directed to this issue was fragmentary and was not focussed on the important issue which now looms large in this appeal. I also agree that there was not any sufficient evidence for the conclusion that the Provincial of the Marist Order was in control of the teaching activities of the second named defendant. It would indeed be unsurprising if there was not a certain fluidity in the performance and allocation of roles in this regard in early 1970’s Ireland. However, I do not consider the Court can make findings as to the position in a particular school in a three year period between 1969 and 1972 without evidence directed to the issue. There is no doubt therefore that the plaintiff’s case would have been considerably stronger if he had shown that there was shared control, or even, which is not implausible, that at certain times the school was effectively run by the Marist Order. However it does not follow from this that the Court cannot make determinations on the precise legal issue which arises here. That question is the relationship between the wrongdoer and the person or body alleged to be vicariously liable for the wrongdoing.

  50. Looked at in this way, it should be apparent that this is in fact not the most difficult issue in the case. There is evidence that Brother Cosgrove was a member of the Marist Order. It is accepted that the Order was a teaching order, and supplied teachers to the school. That was how Brother Cosgrove came to be in the school. Teaching was not simply an occupation, but an important and central part of the mission of the Order. The Order was established, and its members bound, not merely by rules, but solemn vows taken by them and considered sacred and binding. Those vows included chastity, obedience, poverty and celibacy. I think we are entitled to take cognisance of the fact that members of religious orders at that time normally wore habits of standard design, identifying them as members of orders, and indeed correspondingly reducing their individuality, while emphasising their part in a collective.

  51. At a crude level the question of whether a relationship between D1 and D2 in any particular case is sufficient to give rise to vicarious liability can be addressed by asking how closely the relationship approximates to the classic case of employer/employee. Some of the cases have taken this approach. There is however in my view something slightly absurd in seeking to draw comparisons between the case of religious orders and businesses. Furthermore, the tests and language applicable when considering the case of employment and analogous relationships, such as “enterprise” and “risk” are not easily applicable in the case of religious orders. Indeed, to apply tests drawn from the relatively modern world of commerce and industry to religious organisations which have existed for centuries is in my view, to miss the sheer scale and impact of religious institutions on peoples’ daily lives, particularly in the Ireland of the first three-quarters of the 20th century. The relationship between members of an order and his or her fellow members and indeed the order itself was much more intense, constant and all pervasive than the relationship between an employer and an employee, or in the old language of the late Victorian cases, a master and his servant. Everything in the organisation of religious orders is directed towards emphasising the collective. The vow of obedience involves subjugation of individual will to that of the superior. The vow of poverty has the effect of making the member dependent upon the order’s collective resources. The vow of celibacy emphasises the focus of the member on relationships with the order and with God. The objective of teaching young people is not merely incidental to the work of an order, it is indeed the manner in which the order seeks to achieve its object. For a member of the order, teaching was not merely a job it was a religious vocation. There can no doubt that Brother Cosgrove was in the classroom in Sligo between 1969 and 1972 because he was a member of the Marist Order. That was known, understood and accepted by pupils and parents, and when such individuals looked at the various brothers who staffed the school at any given time, they saw, and were intended to see not just a teacher, but a Marist.

  52. The relationship between members and the order, and the importance to the order of the role of members as teachers of young people, are matters which have no direct comparators in the secular world. Accordingly, I do not consider that there is anything inappropriate in addressing this question from the perspective of justice and fairness. This is not to reintroduce the unbridled discretion in individual cases so sharply criticised by Hardiman J. in O’Keeffe v Hickey. Instead, a general question is raised in this case as to whether all persons similarly situated should be liable if certain facts are found. It would be surprising if fairness was not a component of that decision. It is perhaps conceivable that an onlooker might consider it not unfair that the only person liable for sexual abuse should be the perpetrator, and that these actions are so wrong, and outside contemplated activity, that they are the responsibility of the wrongdoer alone and no other body can be made liable for them without culpability on their own part, such as failing to act on complaints. This was the thrust of the judgment of Hardiman J in O’Keeffe. However that position is no longer possible and it is now clear that there can be vicarious liability without fault for acts of sexual abuse. If so the onlooker would surely struggle to understand that the only person or body who as a practical matter may be required to compensate a plaintiff abused in this way by a member of the Marist Order, in a school staffed by the Order, should be the local parish priest. Accordingly I conclude that in principle, once it is accepted there can be vicarious liability of acts of abuse a religious order (or its members) may be vicariously liable for acts of abuse which are sufficiently closely connected to the object and mission of the order.

  53. I reach this conclusion adopting what I consider to be the cautious and incremental approach outlined by Fennelly J. in O’Keeffe, conscious indeed of the strength of the criticism of that approach contained in the judgment of Hardiman J. in the same case. The decision that in principle a religious institution can be vicariously liable for the actions of a member of the order (and in particular sexual abuse) is undoubtedly novel. But once it is accepted that vicarious liability can extend to organisations and relationships other than that between employer and employee, then the size, impact and organisation of a religious order mean that it is not a large step to extend vicarious liability to such an order. Indeed, although the common law insisted upon viewing religions and religious orders (other than established churches) as nothing more than unincorporated associations, the degree to which a member of a religious order is subsumed into a collective entity is almost unique in society and involves a far closer connection with the other members than exists between the most enthusiastic member and a club or between the most loyal employee and an employer. As Charleton J observes in his judgment, “the moral nature of the submission to religious vows, the duty of obedience, the unquestioning move from one teaching position to another and the strict nature of the obligation assumed within a religious order to accept direction show more than the employment relationship ever demands”. I do not therefore regard this development as an indicator of the law’s willingness to expand vicarious liability for such acts more generally. In particular the mere fact of voluntary association may not create the type of intense relationship that justifies imposing vicarious liability in the case of a religious order. Any such case would require a close analysis of the facts and the law.

  54. It is I think revealing that responsibility in the shape of the intentional torts, or fault, in the case of the more common, if sometimes hyper-exacting modern law of negligence, remain such an important part of the tort law system, which remains by far the most important mechanism for compensation for injury. Despite the theoretical arguments which have been advanced for over half a century for a general system of compensation without fault and burden spreading, whether by an insurance or State supported scheme, there has been a stubborn but persistent adherence to culpability or responsibility as an underlying justification for liability in tort. There is no perfect correlation between wrongdoing and injury, and persons may be guilty of serious wrongdoing which cause little injury, whereas persons committing trivial acts of carelessness can be held responsible for great damage; nevertheless the process of seeking and paying compensations seems to function on the basis that at some level it can be said that there is some culpability whether intentional or negligent on the part of the defendant, which justifies the imposition of the burden of compensation. This is of course an insight which is not limited to the common law world. However, the law also permits in certain circumstances liability without wrongdoing, intentional or careless. The common law developed by individual incremental decisions which are then tested by time, and if found satisfactory, and not altered by legislation, establish the law. In those cases of liability without fault which the law of tort permits, perhaps most obviously, the ancient rule in Rylands v Fletcher, the law of agency, and vicarious liability in the context of employment, there are I would suggest, some reasons which justify the imposition of such liability, and which have been found sufficient at least at the practical level of not leading to a reversal of the law, whether by statute or through case law.

  55. In most such cases of imposition of liability without individual culpability, to some extent at least it can be said that the defendant creates, or permits and often benefits from, a situation which carries with it the risk of injury or the wrongdoing by others. In the case of the employer/employee, the employee is in a position to commit the tort because he is employed and provided with equipment which he or she may misuse. The employer chooses the general activity and it is of value to him or her. To that extent it is perhaps not unfair that an employer should bear the risk of wrongdoing, even wrongdoing which he or she may forbid and indeed genuinely abhor. This is, I would add, irrespective of whether the employment is for profit or can be labelled an enterprise. In the context of this case, it is of course possible that in another life the second named defendant might still have been a national school teacher, but it is surely beyond argument that a large part of the reason why he was in an overcrowded national school room with young boys between 1969 and 1972 was because he was a member of the Marist Order, and that he and the Order considered that he was pursuing an important and central objective of the Order in teaching such children rather than merely providing a service to the manager of the school. The fact that here the abuse occurred in the very school room is important, and in my view a decisive feature in this case.

  56. However, I would not, and with respect, adopt some of the rather freewheeling analysis advanced by the plaintiff, and adopted by the High Court, on the basis of aspects of the decision in CCWS. Vicarious liability is not on the move, at least not of its own volition. If it moves, it is by the decision of judges which must be reasoned and justified. The law of vicarious liability was relatively stable, narrow and well understood for most of the 20th century until recently, and much if not all of the development of the law has occurred because of the necessity of addressing the phenomenon of historic sexual abuse of children in an institutional context. There is in my view no discernible movement in the common law world to expand vicarious liability, and therefore liability without fault, on the basis merely of an ability to pay alone, and any such development would raise fundamental issues. Instead, there has been a number of carefully analysed, but not always consistent, attempts in the courts of the highest level in the common world, to provide a framework in which to address claims of historic sexual abuse.

  57. I also doubt with respect, that the function of vicarious liability is to ensure that liability for a tortious wrong is borne by a defendant with means to compensate the victim. This can I think be said more accurately to be the function, or at least the aspiration, of the plaintiff’s lawyer. The function of tort law, and vicarious liability which is a part of it, is I think to identify a defendant who can justly be called upon to compensate an injured party. There remains in the real world however an unavoidable risk that the party or parties deemed liable by the law may not be able to meet an award, particularly when the award is sizeable and the wrongdoing occurred a considerable time ago by persons who may be deceased, or in institutions which may no longer exist, or for matters in respect of which insurance was not available, or if insurance was obtained, it may no longer be in place. If this results in victims not receiving compensation which is considered desirable, then that may be a matter for public policy more generally, but it may be beyond the reach of inter-party litigation and any possible development of the common law. These are problems that can arise in any claim, but are more likely to be encountered in cases that relate to events which occurred a long time ago.

  58. While the issue was raised primarily in the context of the legal nature of a religious order, an issue which must be addressed later in this judgment, I do not think it is helpful to address any part of these issues on the ruthlessly pragmatic basis that what matters is access to funds held by a trust or to an insurance policy. Firstly, it remains the case in Ireland in my view, that it is not permissible to seek either to join an insurance company to a personal injuries action, or to address the question of the presence or absence of insurance in such proceedings. Strictly speaking the existence of insurance is irrelevant to the legal issues to be determined whatever its practical significance. The law is meant to apply equally to the rich, the poor, the insured and the uninsured, and questions of liability must be determined on that basis. Indeed, this is an important discipline when issues come to be addressed in the context of cases in which individual plaintiffs may have suffered serious and life changing injuries. More importantly, while it is important at the level of policy and legal history to acknowledge the interaction of insurance and liability, that insight is of little assistance here. Indeed, it is to reverse the natural order in which the issue should be addressed. A person is normally obliged to, or at least wise to, insure against a liability which he or she may have: if there is no liability, then there is no requirement to obtain insurance and indeed conceivably such insurance may not be available. The question of liability of an individual cannot therefore be determined by the existence of insurance against that risk.

  59. At a more practical level, there is no necessary guarantee that any insurance policy does exist which could be interpreted at this remove, to provide cover for claims in respect of conduct which occurred 40 years ago. Given the antiquity of these claims, it is entirely possible that there are no existing insurance policies. The policies have been lost or lapsed, or the entity providing the insurance no longer exists, or if it still exists that its reinsurance has been lost either partially or wholly. Even if a policy existed which, fortuitously could be argued to provide cover for members of a religious order in a school, it is unlikely that it would have been entered into, or, a premium set, in contemplation of the risk of sexual abuse, or the possibility that it could be perpetrated by members of a religious order. This is particularly important given the fact that if the level of damages awarded in this case were replicated generally, then the cost would be very substantial indeed to any organisation. The resulting cost would not be spread over those few policies which might still exist, and which could be said to cover abuse which occurred nearly 50 years ago. Instead the cost will be borne by the insurance company and sought to be recouped by increased premiums from future policy holders, not responsible for the abuse and perhaps not religious orders. It is not clear why that is any fairer as an outcome. Different difficulties arise in the case of trusts. Normally, the fact that an individual or property is a beneficiary of a trust would mean that the trust property is not available to meet any award made against the individual. There is nothing to suggest that there is any trust here or in any such similar case, or indeed any similar funds to provide ready compensation for the plaintiff, and therefore assuage concerns as to the extension of liability in the case. Reference to insurance and trusts therefore only distracts focus on what are undeniable difficult issues.

  60. Finally, and at the level of detail, I doubt that it can be said as a general proposition that an unincorporated association is vicariously liable separately from its members, for the tortious acts for one or more of its members. As pointed out in the comment in Morgan, ‘Vicarious Liability on the Move’, (2013) 129 L.Q.R. 139, the three UK cases cited: Heaton’s Transport (St Helen’s) Ltd v TGWU [1973] A.C. 15; Thomas v The National Union of Mineworkers (South Wales Area) [1986] Ch. 20, 66-7 and Dubai Aluminium Co. Ltd. v Salaam [2003] 2 A.C. 366, do not establish that proposition. Both Heaton’s and Thomas involved trade unions and Salaam involved a partnership. In each case therefore there were statutory interventions which had the effect of permitting the union or the partnership to sue or be sued. These cases therefore offer little guidance as to the vicarious liability of wholly unincorporated associations whose structure and legal status is not in any way provided for by statute. The High Court judgment here followed the approach in CCWS in treating a religious order as if it were a body corporate, and then analysing the two stages of vicarious liability. I have approached the issue of vicarious liability on the same basis since it reduces the possible complications in the analysis of what are in any event difficult issues. However, in my view the most difficult issue in this case is whether the assumption, and indeed the conclusion in the High Court, that the Marist Order could be treated as if it were a body corporate and therefore a single entity vicariously liable for the acts of its members, and therefore permitting execution against what are deemed to be the assets of the body (and avoiding perhaps execution against any individual assets of members if such is possible) is indeed correct. There is a further related procedural matter as to whether even if the Order may be treated as if it were a body corporate, such a body has been properly sued in these proceedings.

  61. The legal status of the Marist Order and its relationship to the first defendant

  62. The High Court here held that it was appropriate to treat the Marist Order as a corporate body liable for the acts of its members and, implicitly that the first named defendant could be treated as a representative of the Order so that judgment could be, and was, entered against him. In coming to that conclusion, the High Court judge expressly followed the approach in CCWS. However although that was indeed the outcome of CCWS, the matter was not the subject of any extended argument, or consideration, apparently because the issue was not itself seriously contested by counsel on behalf of those defendants sued on the basis of their involvement in the De La Salle Order. (See paragraph 31 of the CCWS judgment already quoted at paragraph 30 above). The issue of the problematic nature of the De la Salle Order, at least as a matter of law, was however considered by Lord Phillips and his conclusion set out at paragraph 33:

  63. Because of the manner in which the Institute carried on its affairs it is appropriate to approach this case as if the Institute were a corporate body existing to perform the function of providing a Christian education to boys, able to own property and, in fact, possessing substantial assets.

    [emphasis added]

  64. The starting point for analysis must be that the common law considers a religious order such as the De La Salle Order in CCWS, or the Marist Order here, as an unincorporated association. This approach stems in turn from the historic unwillingness of the common law to recognise the Catholic Church in particular (and presumably other religions other than the Established Church) as a legal entity in its own right, notwithstanding its obvious size, organisation and importance in the daily life of the community. If indeed the common law had recognised the Church and religious orders as possessing legal personality distinct from its members, then this and other cases would be much easier. However that step was not taken either in the United Kingdom or even in Ireland post-Independence. The limited extent to which religion and in particular the Catholic religion was recognised in Article 44 of the 1937 Constitution did not, in my view, have any effect on the legal status of those religions, and that provision was in any event removed in 1973. Of course, it may be that there was no pressure or requirement for the law to address the status of churches and orders because it was possible for the Church to organise its affairs in civil law so far as was necessary, and to give effect to its objects. Accordingly, it was possible to hold property through trustees, to make contracts through nominees who would be liable, and then indemnified, and so far as the interests of the order required protection in court, it was possible for trustees or nominees to bring proceedings. None of this however addressed the question of the Catholic Church or a religious order, as a defendant in proceedings. It seems likely that this was dealt with on an ad hoc basis, and without any issue being taken either because of the availability of property to satisfy any award, or the existence of insurance policies. However, the potential range and number of claims brought in respect of historic sexual abuse raise the prospect of very extensive potential liabilities which in other countries have led to the bankruptcy of parishes, dioceses or institutions, and may threaten their capacity to continue to undertake valuable work in the community with marginalised and vulnerable people, which, it should be recognised, is work that was carried out by members of religious orders – themselves not merely blameless for the particular wrongdoing but who are admirable for their selfless devotion to charitable works. It is perhaps not entirely surprising therefore that the difficult issue of the liability of an order or its members is maintained in these proceedings. In any event it must be addressed.

  65. I cannot accept that by some process of unexplained alchemy a group of individuals such as that involved in this case, which is in law, an unincorporated association, can come to be treated for the purposes of these proceedings only, as if it were a corporate entity. References to insurance, or the existence of property held on trusts, or the reality of proceedings, cannot in my view provide an acceptable legal route between these two points. The UK cases referred to as establishing the proposition that an unincorporated association can be vicariously liable for the acts of its members reveal themselves on examination to be cases about trade unions and partnerships – both of which have statutory provisions and recognition, the effect of which is to give them some status for the purposes of legal proceedings.

  66. The law relating to such bodies casts some light on the liability of unincorporated associations more generally. It has been held that a registered trade union was a quasi or near corporation. In R (IUDWC) v Rathmines UDC [1928] I.R. 260, Kennedy CJ said at p.300:

  67. A trade union which has been registered with a name, an address, a constitution and rules, is a legal person, at least analogous to a statutory corporation, having an existence apart from the individuals aggregated in the combination.

    This conclusion (which only relates to registered unions) followed not from the status of a union as an unincorporated association, but from the consequences of registration in accordance with the then statutory provisions recognising the existence of trade unions. In the case therefore of trade unions and partnerships, their capacity to sue or be sued in their name results from statutory intervention and not from a status as an unincorporated association. Indeed, the case of an unregistered trade union provides the more appropriate analogy. The difficulty which may, arise in relation to proceedings by and against such bodies is thoroughly and helpfully discussed in Kerr and White, Irish Trade Union Law, (Abingdon: Professional Books Ltd., 1985) pp. 62-63. The authors conclude:

    The legal position of the unregistered trade union is comparatively straight forward – it is an unincorporated voluntary association of individuals similar in legal nature to a social club. The union has no legal personality itself and consequently any action concerning the union, its property or activities must be brought or defended by way of representative action.

  68. The difficulties of cases in which it is sought to make a defendant representative of others are also discussed by the authors. The conclusion is, that in the absence of statutory intervention, an unincorporated association lacks separate personality and cannot sue or be sued as if it were. This position is reflected in the recent decision of this Court in Sandymount and Merrion Residents Association (SAMRA) v An Bord Pleanála  [2013] 2 I.R. 578. There this Court in a judgment of Clarke J. held unanimously that the effect of s.50A(3)(b)(ii) of the Planning and Development Act 2000, was to provide an exception to the general rule that an unincorporated association could not bring proceedings. In the course of that judgment he said:

  69. It is true of course, that .... an unincorporated association or body does not have the legal capacity to bring or defend court proceedings. Such an unincorporated body or association is simply the sum of its individual members with no independent legal personality. However, it is also clear there can be, whether by legislation or otherwise, exceptions to that general rule.

  70. There is clearly no legislative exception relied on in this case to alter the longstanding position of the common law that a religious order is an unincorporated association. It is perhaps not entirely inconceivable that it is within the powers of the court, and the common law, to provide for an exception to that rule in some cases. However, the basis upon which such a step could be taken, was not addressed in argument, or discussed in the CCWS case. As it stands therefore in my view, the Marist Order is an unincorporated association and must be viewed by the law as such. It is essential to the very nature of an unincorporated association that it is not a body corporate. It cannot therefore be treated as if it was that which by very definition it is not. In my view, the Court must address the difficult question of the liability of members of an unincorporated association, and, the related question on the assumption that there is such liability, the question whether it has been properly invoked in this case.

  71. Liability of an Unincorporated Association

  72. To speak of an unincorporated association implies a body of some substance. Given the importance of clubs sporting and otherwise in Ireland, it would be wrong to underestimate the social significance of such a body. George Orwell observed that the English are a nation of joiners, but the observation could be applied with equal merit in Ireland, although the list of activities might not put the same emphasis on the flower arranging, pigeon fancying and dart playing praised by Orwell. However, in law, the absence of incorporation means that the body is created by the agreement of its members embodied in rules which are in the nature of a contract between the members. Thus, in Conservative and Unionists Central Authority v Burrell [1982] 1 W.L.R. 522, Lawton L.J. defined an unincorporated association as “two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms, and which can be joined or left at will”. There is a dearth of authority in the common law world as to the liability of members of an unincorporated association but there is a working assumption that members are jointly and severally liable for damages arising out of a tort committed by a member in pursuit of the objects of the association. The celebrated case of Miller v Jackson [1977] 3 All E.R. 338, featuring Lord Denning’s dissent from the proposition that a cricket club could be liable for balls hit into the property of its neighbours, is normally cited as authority for that proposition, but it does not appear that the point was argued or separately addressed as the award was sufficiently modest to be paid out of the club’s funds. The Scottish Law Reform Commission’s, Discussion Paper on Unincorporated Associations (DP 140) (2008) p.11, set out its understanding of the general position:

  73. It would therefore appear that the members would be liable jointly and severally for the damages awarded, beyond the amount of their subscription to the club.

    The point has not been the subject of decision by a UK court because in the reported cases in which associations have been sued (through their officer bearers) at common law or under the Occupiers’ Liability (Scotland) Act 1960, either the pursuer has failed to establish liability or the sum awarded has been sufficiently modest to be payable in full out of club funds. It has, however arisen in other jurisdictions. In Australia, the possibility that committee members who had been found liable in damages to a third party might seek indemnity from members was mentioned by Jacobs JA in Smith v Yarnold. At common law in the United States, members of an unincorporated not-for-profit association are liable for the tortious conduct of fellow members and agents of the association, although it has been noted that in some jurisdictions liability has been restricted to members who participated personally in a tortious act, or who expressly or impliedly assented to it.

  74. Club members have been liable in tort in cases such as Kennaway v Thompson [1980] 3 All E.R. 329 where members of a motor boat racing club were held liable in nuisance, and similarly in the case of Tetley v Chitty [1986] 1 All E.R. 663, where all members of a go-kart racing club were found liable in nuisance together with the borough council which had permitted the activity.

  75. Perhaps the most thoughtful and extended consideration of this issue is to be found in the Irish case of Murphy v Roche (No.2) [1987] 1 I.R. 656. The case involved a member of a GAA club, who attended a dance in the club house and sustained injuries due to a fall which he alleged was caused by negligence on the part of the club. The Supreme Court directed the trial of a preliminary issue on the liability of a club to its members. In the High Court, Gannon J. held that a member could not sue a club per se essentially because it was an unincorporated association and the plaintiff member would be maintaining an action against himself or herself. This analysis it might be noted is necessarily dependent upon the proposition that the individual members of the club (including the plaintiff) are legally liable for the negligence of other members, at least in the pursuit of the common purpose of the club. Gannon J.’s analysis of the position of members of an unincorporated association against whom proceedings are sought to be brought, was clear (p.661):

  76. In my opinion this club is a voluntary association of persons having a common or mutual interest not for any financial or commercial gain who have expressed to themselves and to all third parties the terms of their association in their rules. The mere fact of such association does not cast on any one of them liability for actionable wrongs by any other of them. Liability may attach by reason of actions of an agent common to all and acting as such, or by reason of the actions of one of them having the authority in nature of agency of all. Agency, however, cannot be assumed by reason only of common association and it would have to be established as a fact by any person seeking to rely upon it. The agency, its nature and limitations is to be found in the rules mutually adopted by the members for the purposes of the common interest. It is my opinion that any wrongful action of one member carries vicarious liability for all members to the extent that it corresponds with the common interest; and, to the extent that it is not common to all and is at variance with the rules, the liability remains that only of the individual, subject to express agency, if any. However, if the actions of any member or servant in the furtherance of the common interest should occasion actionable damage, the body of members as principals are all equally liable vicariously to the injured party for the entire damage attributable to the harm, but with the right of recourse for indemnity against the wrongdoer. In the absence of express terms no one individual sharing the common interest served by the action of the agent, be he member or servant, can avoid his vicarious liability for the entire damage to the injured party even though contribution may be obtained under the Civil Liability Act, 1961.

  77. It becomes important to consider here precisely what was in issue in these proceedings on the pleadings. It will be recalled that the first named defendant did not make any concession as to responsibility but insisted that the case be determined strictly in accordance with law. Much of the first named defendant’s criticism of the case made by the plaintiff consisted of detailed, and in some cases justified, criticisms of the pleadings and the lack of detailed evidence. The same principle applies however to the first named defendant. The only plea raised was that at paragraph four discussed above which did not deny that the first named defendant was Provincial of the Order but rather pleaded that the members of the Marist Order as an unincorporated association were not liable either directly or vicariously for any act of any other member. It is correct that members of the Order are, at common law at least, members of an unincorporated association and they do not have any direct liability for the acts of others. However, for the reasons set out above, I consider that they have a vicarious liability for the acts of other members. The paragraph goes on to assert, correctly in my view, 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. In my view, the members for the time being at the time the act is committed are liable rather than the members, for example, at the time the proceedings are commenced. It is however conceivable that the rules of the association may allocate liability internally. It may be that this further plea is meant to imply that Brother McGowan joined the Order after 1972, but if so it is not explicitly pleaded, and was not addressed in evidence. The defendant deliberately chose not to risk providing assistance to the plaintiff’s case by calling evidence, but thereby ran the risk that he might also lose evidence that might be of assistance to the defendant’s case. On day six, page 46 of the transcript, it appears Brother McGowan was going to give evidence but having after a short period for consideration, he was not called. Therefore, the plaintiff has in my view established that he was abused by the second named defendant who was a member of the Marist Order, and that he has pleaded that the first named defendant is a member of the Marist Order and indeed a provincial, and this is not denied. It has neither been pleaded nor proved by the second named defendant that he was not a member during the period of the wrongdoing established in this case. That in my view is just enough to justify judgment against the first named defendant, although it remains to be seen what benefit such judgment against the individual will be to the plaintiff. This might appear a narrow and somewhat technical approach, which nevertheless has decisive consequences in this case. After all, the first named defendant may have been able to prove that he was not a member of the Order at the relevant time. However he neither sought to plead, or prove, such a state of affairs. Instead he took up a position – that members of an unincorporated association were not vicariously liable for the any of the acts of another member – which in the event failed as a matter of law. He also insisted on strict proof of all matters and stood on his right to defeat the claim even on grounds which were on any view, technical. It may be rough justice, but it is justice all the same, if the same standard is applied to his case.

  78. Representative Defendant

  79. There was considerable discussion in the course of the appeal of the possibility of seeking an order that the first named defendant was sued in a representative capacity on behalf of all members of the Order or, conceivably specified members. While the first named defendant made effective play of the fact that the plaintiff had not sought such an order the first named defendant did not necessarily concede that such an order was possible. It subtracts somewhat from the force of the arguments made about the inadequacies of the pleadings, if on closer examination it became apparent that there was no simple or effective route to a broader based claim. Order 15 Rule 9 of the Rules of the Superior Courts, 1986 does permit a person to sue, or be sued on behalf of all persons having the same interest in the cause or matter. However, Kennedy C.J. stated bluntly in Moore v Attorney General (No.2) [1930] I.R. 471 at p.499, that the almost identical provisions of Order XVI Rule IX of the Rules of the Supreme Court (Ir.), 1905, did not apply to an action in tort. I am not sure that that is necessarily correct in all circumstances and in particular where a claim is made for the same vicarious liability against a number of parties (something that might not have been conceived possible in 1930). In any event I think that no sufficient attempt was made here to endorse the plenary summons with a claim that the defendant was sued in a representative capacity, or to identify the persons alleged to be represented. The appropriate course in such a case is to write to the order or provincial threatening to sue all individual members of the order unless a defendant is nominated. If that course is not taken, then all members who can be identified can be joined as defendants. If however any judgment is obtained against those defendants, the judgments are individual and whether or not such judgments will be met by insurance, or from assets which may be held for the benefit of the order more generally, may depend on the terms of the insurance, and indeed the terms upon which such assets are held, and perhaps the willingness and ability, of the order to make funds available to satisfy any judgment against an individual. Whether this is a desirable position as a matter of law and whether further changes should or could be made, is a matter which might usefully be considered by those charged with law reform.

  80. Contributory Negligence

  81. The High Court judge held that the manager of the school, as the legal employer of the second named defendant was also vicariously liable for his acts while teaching. Since the manager had not been sued, and since any claim against the manager was statute barred, the Court held that the plaintiff must be identified with the manager under s.35(1)(i) of the Civil Liability Act 1961, for the purposes of contributory negligence under s.34 of the same Act. However, the trial judge considered that the evidence was that the Order was much more substantially in control of the teaching than the manager of the school, and he apportioned liability as between the Order and the manager, 85%-15% and therefore reduced the plaintiff’s award by 15%. The first named defendant has appealed against the apportionment, and the plaintiff by notice to vary, contending that the finding of contributory negligence should not have been made. It is logical to deal with this latter argument first.

  82. Section 35 of the Civil Liability Act deals with what it describes as “identification”. Much of it is unremarkable. It provides for example that the plaintiff is deemed responsible for the acts of a person for whom he is vicariously liable or when suing as a personal representative of a deceased’s person, or for example when suing as an assignee. However, s.35(1)(i) is quite novel. It provides:

  83. (1)

    For the purpose of determining contributory negligence—

    ...

    (i)

    where the plaintiff's damage was caused by concurrent wrongdoers and the plaintiff's claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer;

    The immediately preceding section, Section 34, deals with the apportionment of liability in a case for contributory negligence. It provides so far as is relevant:

    (1)

    Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant: ....

    [emphasis added]

  84. Counsel for the plaintiff does not dispute that on the judge’s findings, the manager was a concurrent wrongdoer. He was vicariously liable for the assault of the second named defendant. It follows that for the purpose of s.35 that the plaintiff, who did not sue the manager, and whose claim against such manager is not statute barred, must be in the words of s.35 “deemed to be responsible for the acts of such wrongdoer”. However, counsel argues that s.35 is not an end in and of itself. It is introduced for the purposes of determining contributory negligence. He argues that contributory negligence is by virtue of s.34, limited to acts of negligence or want of care. Thus, the argument runs, the apparent breadth of s.35 is limited by the fact that it is stated to be an attribution of liability for the purposes of determining contributory negligence and therefore the only acts of the manager wrongdoer for which the plaintiff can be made responsible are acts “constituting negligence or want of care of the plaintiff or of one for whose acts he is responsible”, and not any other wrongdoing, such as assault, or as here vicarious liability for such assault.

  85. It does not appear that this argument has arisen before, and it does not seem to have been the subject of any academic consideration. Certainly we were not referred to any such commentary. It is idle I think to deny that the argument has some weight at the level of language if the two sections are taken on their own. However, it is I think relevant that the Civil Liability Act is an extremely complex provision which while a significant advance in the law, is not so perfect a construction that there are not provisions in the Act which do not fit comfortably together. To understand these novel and complex provisions, it also necessary to understand the general structure of the Act and the function of these sections. In particular, as McMahon and Binchy, Irish Law of Torts, 4th Ed., (Dublin: Bloomsbury, 2013), p.840 at para. 20.67 points out, the provisions of s.35 “harmonise with the provisions relating to contribution, to ensure fair treatment, not only between plaintiffs and defendants, but among the defendants themselves”. It is necessary therefore to address the sections in that wider context.

  86. It is in my view certainly open to argument that s.35(1)(i) operates too harshly. The underlying theory however is clear, and in principle at least, sensible. One of the main provisions of the 1961 Act was to allow the allocation of liability (and consequently damages) between defendants and indeed other concurrent wrongdoers responsible for the damage suffered by the plaintiff. If a plaintiff did not sue one such wrongdoer (with the consequence then that such wrongdoer may not be available for a claim of contribution by other concurrent wrongdoers who have been sued), then the Act through s.35 requires that the plaintiff must bear that loss.

  87. It is significant that it is accepted that the definition of concurrent wrongdoers includes anyone responsible for the same damage to the plaintiff and specifically includes circumstances where the wrong on the part of one or both potential concurrent wrongdoers under s.11(2)(b) “may be a tort, breach of contract or breach of trust, or any combination of them”. If there was no provision for the identification of the plaintiff with the liability of a concurrent wrongdoer not sued by him or her, then the plaintiff might have less incentive to sue all potential concurrent wrongdoers, and might be able to throw all the loss upon one defendant. Once it is accepted however that intentional tortfeasors, contract breakers and trust breachers are also concurrent wrongdoers from whom contribution might be sought, it would make little sense to read the identification provisions of s.35 as only having a practical effect in relation to those acts of a concurrent wrongdoer which constitute negligence or want of care. This is particularly so since the want of care might not be such as would give rise to a cause of action whereas the intentional tort or breach of contract certainly would. Indeed it is difficult to see how a party, who is guilty of want of care which does not amount to a cause of action, can be said to be a concurrent wrongdoer.

  88. The potential outcome of the defendant’s argument in this regard is more than peculiar. The combined effect of s.34 and s.35 would be is that certain acts (want of care) which would be contributory negligence if committed by the plaintiff, cannot be treated as contributory negligence through the vehicle of s.35 (since they would not necessarily amount to concurrent wrongdoing). On the other hand, while the plaintiff must be identified under s.35 with the acts of the concurrent wrongdoer not sued for the purposes of contributory negligence, certain of those acts (torts other than negligence, breaches of contract, breaches of trust), would nevertheless not constitute contributory negligence, even though, if the same concurrent wrongdoer is sued in the proceedings by the plaintiff, or joined as a third party, contribution in respect of those acts of concurrent wrongdoing would be available to the other defendants. There would be have symmetry or harmony between the provisions of s.35(1)(i) and the contribution provisions if that was the case. One might wonder then as to the purpose to be served by identifying the plaintiff with the acts of the concurrent wrongdoer who was not sued. If s.35 merely means that the plaintiff will be fixed with the acts of a concurrent wrongdoer which amount to negligence, it would have been simpler to have stated so explicitly rather that use the more general (and on this argument, misleading) words of s.35.

  89. It seems to me that this section can be understood more readily and more naturally as merely a deeming provision which deems the liability of the statute barred defendant a form of contributory negligence which can then be pleaded against the plaintiff in reduction of the plaintiff’s award. The purpose of a deeming provision is to give a meaning to something for a particular purpose which it would not otherwise have more generally. Breach of contract or an intentional tort is not normally contributory negligence if committed by the plaintiff, but when committed by a concurrent wrongdoer not sued and now protected by the Statute of Limitations, it is deemed to be so for the limited purposes of the identification provisions of the Civil Liability Act.

  90. Even read in this way the section has the capacity to operate harshly in a number of circumstances. First, in a case such as the present, where there are a large number of defendants who may be concurrent wrongdoers on the grounds of vicarious liability but who it may be very difficult to identify, and who the plaintiff may not have the capacity to identify, it may be unfair to reduce the plaintiff’s award for failure to join all potential parties. No provision is made for the possibility of a lack of knowledge on the part of the plaintiff of the existence of a concurrent wrongdoer when proceedings are commenced, and indeed when a claim came to be statute barred. Finally, the symmetry between the provisions of s.35(1)(i) and the general provisions on contribution, while close is not perfect. The limitation period for the initial claim by the plaintiff against the wrongdoers, is not identical to the limitation period for a claim for contribution. Thus the fact that a plaintiff’s claim against a concurrent wrongdoer has become barred does not necessarily preclude a claim for contribution by any other concurrent wrongdoer who has been sued. In such circumstances, which may of course be unusual, a defendant may have the option of either relying on the provisions of s.35(1)(i) or joining the concurrent wrongdoer as a third party. A related difficulty arises because s.35(1)(i) is triggered merely by the failure to sue a party against whom a claim is statute barred and may take no account of the capacity of such a party to meet an award of damages. In such a case although the plaintiff might not have recovered damages against that concurrent wrongdoer, the failure to sue the wrongdoer may result in a reduction of the plaintiff’s award. It may be that these difficulties do not arise, or that there are other and further difficulties. The matter was not argued before us in any detail and arises because it has been necessary to consider the underlying rationale of s.35(1)(i). I raise these matters in order to suggest that the section might benefit from further detailed scrutiny. For the purpose of this case however, I am satisfied that the High Court was correct in identifying the plaintiff with the wrongdoing of the manager who was not sued. I would accordingly dismiss the notice to vary.

  91. There is however considerable force in the plaintiff’s contention that once it was determined that the manger was a concurrent wrongdoer and also vicariously liable for the acts of the second named defendant, there was no basis either in theory or in fact for apportioning responsibility 85%-15%. Since vicarious liability is liability without fault, it is difficult to see that there could be different “degrees of fault” as contemplated by s.34. Accordingly s.34(1)(a) applies and liability is apportioned equally. In any event, even if it were possible to apportion responsibility between two entities having vicarious liability, it was not possible in this case because there was an evidential deficit as to the relationship between the manager on the one hand and the Marist Order on the other. I do not think it is necessary to determine whether in any such case it may ever be possible to identify “degrees of fault” so as to apportion liability between two defendants both vicariously liable for the acts of a third: in this case the manager was the employer who had the primary liability for the acts of the employee. 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, I would apportion responsibility equally between the Order and the manager. In the judgment he delivers, Charleton J. concludes that the Marist order had sufficient control over the first defendant that it (assuming for these purposes that it could be separately sued) would be wholly responsible, and its liability would exclude entirely the liability of the person or entity that was the employer of the first named defendant. For my part I doubt that the evidence in this case is of sufficient detail and strength to provide a sound foundation for such a conclusion, and I would be extremely slow to hold that the liability of an employer can be lost, avoided or transferred other than by express agreement. Furthermore I think it would be undesirable to introduce this element of uncertainty into the relationship between employer and employee.

  92. It follows from the foregoing that in theory all members of the Marist Order, at least those who are members at the time of the alleged abuse, are vicariously liable, but only Brother McGowan has been sued. There was some discussion therefore as to whether s.35(1)(i) applied in this context as well. I do not necessarily accept that it would be appropriate to permit a party such as the first named defendant in this case, to rely on the failure of the plaintiff to sue other members of a religious order when knowledge as to the identity of such members was something much more clearly within the power and control of the first named defendant rather than the plaintiff. However, in any event as is apparent, this issue was not raised by the pleadings, and accordingly it is neither necessary, nor appropriate, to address the question of the potential liability of other members of the Marist Order for the purposes of s.35(1)(i).

  93. Quantum

  94. The plaintiff’s damages were assessed at €350,000 by the trial judge. The assessment of damages for personal injuries is not a precise science, and becomes particularly difficult when it involves the assessment of general damages for the psychological impact of a wrongdoing. Much more information is available about the impact of physical injuries on human beings, and the courts have considerable experience in dealing with such injuries. Furthermore, it is also possible to be more confident about what the likely position of a plaintiff would have been, had a physical injury not occurred. The plaintiff now attributes difficulties he has experienced in his life such as changed jobs and difficulty forming lasting relationships to the discovery of the abusive behaviour of the second defendant. But some difficulties in life may not be capable of being traced to any single causal event, still less one for which compensation is available. The difficulties of assessment of damage to the psyche is compounded in cases such as this which extend over a considerable period, and where for the majority of the period, the plaintiff was unaware of the abusive conduct because he had blanked it from his memory. I do not wish in any way to depreciate the significance of these matters for the plaintiff. I do consider that the process of bringing proceedings, confronting a wrongdoer and having the determination of the court are more important factors in cases such as this than for example in a car accident. Confronting an abuser and obtaining a public and authoritative determination that the defendant is responsible for the abuse, is an important vindication of a plaintiff. While this is a distressing case, it must also be acknowledged that there have been even more severe and traumatising cases of abuse. There is regrettably a spectrum of cases with which the courts are now familiar, and any case must be located on that spectrum. This case while significant and serious, is not at the most extreme end of the scale.

  95. There must also be some correlation between the figures awarded for injuries of this nature and general damages awarded for catastrophic personal injuries resulting in some cases in a quadriplegic life from a very young age, or severe brain damage. While very large awards are made in these cases, the bulk of the award relates to special damages in respect of past and future care. The component for general damages for pain and suffering rarely exceeds the amount awarded in general damages in this case. Awards for residential abuse may be a useful point of comparison. There was I think only limited evidence as to these matters which might benefit from greater scrutiny in another case. In the circumstances of this case however, I would reduce the overall general damages to a figure of €150,000. When the deemed contributory negligence under s.34 is taken into account, this would result in an award of €75,000.

  96. I have had the opportunity of reading in draft form the judgment delivered today by Charleton J. and have greatly benefitted from its range, detail, and depth of thought. There is as he observes a large measure of agreement between us. This is a very difficult case. Charleton J. cannot agree that the finding of the High Court as to liability against Brother McGowan should be upheld on the narrow basis on which my decision rests. He would however remit the case to the High Court to consider if liability could be established against Brother McGowan, not individually as a member of an unincorporated association, but rather in his capacity as Provincial and on the basis that such an office is a corporation sole. I recognise the learning which he has brought to bear on this issue. I agree that the entire question of the potential liability of a religious institution, or order, first at common law, and then after the coming into force of the Constitution is something which deserves study and argument. If correct it might provide a basis for the liability of the Order through its Provincial, which the cases, in different ways, consider appropriate. However I cannot see that it is a possible route in this case which was commenced 15 years ago and concerns events more than 25 years earlier. If it was clear that additional legal argument would be decisive then there might be some argument for permitting that argument to be made, even at this stage. However the question of potential liability as a corporation sole is one not canvassed before, and is by no means clear cut. It was discounted by Geoghegan J in O’Keeffe. It would be necessary to amend the pleadings, seek discovery, call evidence and then engage in an entirely new argument. That would not be the resolution of this case, but in truth the commencement and determination of another. Accordingly I regret I cannot agree to the course he suggests.

    Justice Charleton

  97. At issue on this appeal is vicarious liability for the sexual abuse of a pupil by a teacher. An important aspect of the case is also whether the present leader of an unincorporated religious group, specialising in teaching, may be vicariously responsible when one of their number sexually abused a child in a school 40 years ago, a time when he may not have even entered that way of life. While this case concerns an unincorporated religious order, many other groups of people who pursue similar aims and interests, such as sporting associations, also organise themselves without incorporation. Hence, the problems of liability and succession to liability are not specific to religious orders. Religious orders are merely one class of organisation lacking legal personality. Such groups must be considered within a broader analysis of vicarious liability. That aspect of the appeal also brings into focus succession to liability through a corporation sole, as mentioned in the judgment of Geoghegan J in O’Keeffe v Hickey [2009] 2 IR 309.

  98. Brother Patrick McGowan, the first defendant, and the appellant herein, is the only appellant from the judgment of Ó Néill J in the High Court of 24 January 2014, [2014] IEHC 19. In his judgment, Ó Néill J awarded at full value the sum of €350,000 to Pádraig Hickey, the plaintiff, as damages in respect of sexual abuse suffered by him between 1969 and 1972 at Saint John’s, a Catholic national school in Sligo. These damages were reduced by 10% because of the defendants not proceeded against, as listed in the title. At that time the school was staffed by the Marist Brothers, a religious order devoted to teaching. Brother McGowan never abused Pádraig Hickey. The trial judge determined that the abuse was committed by Christopher Cosgrove, who was a Marist Brother when he abused Pádraig Hickey but who has since left the Brotherhood. That second defendant, ex-Brother Cosgrove has not appealed. The action against the State defendants was never proceeded with. It might also be noted that counsel arguing the appeal on behalf of the plaintiff/respondent differed from counsel in the High Court.

  99. Facts

  100. This national school was run according to pattern familiar in Ireland of having a board of management, headed by a school manager who was not involved in the day to day management of the school. He was a cleric who was appointed to that position by the patron of the school, who was the bishop of the diocese in which the school was situated. The bishop was not joined in these proceedings and neither was the school manager, who, as will be seen, was the administrator, or effectively parish priest, of the diocesan cathedral. Brother McGowan, it appears, is now the principle of the Marist Brothers in Ireland. The Marist Brothers are an unincorporated group of men who take religious vows of celibacy, obedience and poverty in order to devote themselves to teaching. The vows are for life. The case was never made that ex-Brother Cosgrove was known, or reasonably suspected, to be a danger to children. There was no evidence to that effect. No fault was alleged against the Marist Brother then in charge of the school for allowing ex-Brother Cosgrove to teach, and thus have access to children. The fault proven in this case is that of ex-Brother Cosgrove. He, as the trial judge found, sexually abused Pádraig Hickey. The liability is vicarious. At paragraph 4 of his judgment, Ó Néill J described what he had been subjected to as a child. An edited quote suffices to indicate the terrible nature of the abuse of authority which polluted the plaintiff’s childhood:

  101. The plaintiff .... described becoming involved with the school band .... [Ex-Brother Cosgrove] was in charge .... [H]e began the practice of holding the plaintiff in a close manner [whilst teaching him to play the drums] 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. [Pádraig Hickey] would frequently be instructed .... to come to the top of the class .... either under the pretext of reading to the class or of being assisted in learning. .... [Ex-Brother Cosgrove] 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. .... The plaintiff described these activities as occurring several times during every week and that they were a cause of the gravest upset to the plaintiff and that he was powerless, in the context of the position of authority of the second named defendant and his close relationship with the plaintiff’s family, to do anything about it and that he lacked the language to express his distress and unhappiness.

  102. On the evidence, the wrong for this was entirely that of ex-Brother Cosgrove. Nothing flagged whatever perversion drove him on. There was no indication to either the Marist Brothers or to anyone else teaching in or running that school that he had a sexual attraction to small boys. Had there been any indication, a case of negligence might have been built against another party; that of failing to prevent foreseeable harm. Vicarious liability, however, ascribes liability without fault. A primary tortfeasor is responsible for the wrong, and thus must be at fault, but the employer, or master to use the language of older cases, of that tortfeasor becomes liable through the relationship whereby the wrong is ascribed without fault to the person or body employing him. Brother McGowan, as the current head of the Marist Brothers in Ireland, was held by the High Court to be responsible vicariously for the wrongs of ex-Brother Cosgrove four decades previously. The fault of ex-Brother Cosgrove was ascribed without fault on the part of Brother McGowan to him solely by reason of his now having a leading role in that religious order in Ireland.

  103. Before this case commenced, no representative order was sought on behalf of Pádraig Hickey against the Marist Brothers, no interrogatories were served, no discovery was sought as to the structure of the religious order or as to any manner in which responsibility was structured by that group, or property was held, and no exchange of particulars or interrogatories explored any of those issues. During the course of the case, these matters were not addressed in evidence. There was no, or minimal, focus on even the issue of who ran Saint John’s School in Sligo in the 1960s and 1970s. How authority was structured in the school was left unexplored. Ó Néill J found ex-Brother Cosgrove liable as the tortfeasor and Brother McGowan liable as his employer. Brother McGowan was, in this sense, regarded as somehow being the personification of the Marist Brothers. The explanation for how Brother McGowan came to be in the case at all came from counsel for Pádraig Hickey on the first day of the trial in November 2012 in terms that he was being sued “in his capacity as the head of the Marist brothers and in the sense they’re being sued on the basis that they are vicariously liable for the actions of [Ex-Brother Cosgrove] who was at the time a Marist brother.”

  104. The appeal ranged over the multiple questions and was based on patchy testimony regarding the regrettably unexplored issues as to authority and structure within the school. It may conveniently be organised by a focus on the following questions:

  105. (1)

    Was there evidence that the Marist Brothers were in control of the school or evidence from which such control might be inferred?

    (2)

    Does control of a school by a religious order lead to the conclusion that abuse committed during the course of teaching by a brother renders the abuser’s congregation vicariously liable?

    (3)

    Does this vicarious responsibility make the head of the congregation liable?

    (4)

    Can the successor to the head of the congregation be liable, even after decades have passed?

    (5)

    Do errors in the pursuit of this case on behalf of the plaintiff Pádraig Hickey require the ordering of a retrial in the High Court?

    (6)

    Must the damages be reduced as excessive and further reduced under the Civil Liability Act 1961, as indeed the trial judge reduced same to €315,000, by reason of not pursuing a concurrent wrongdoer, the State defendants?

    Proceedings on behalf of Pádraig Hickey

  106. This action was commenced by the issue of a plenary summons on 6th February 2001 against the parties named as defendants herein. As Pádraig Hickey testified in the High Court, litigation had not been contemplated in the prior decades because of the complete suppression of these repellent memories into his subconscious. With the commencement of a Garda investigation into other instances of abuse at the school, he was contacted and subsequently sought psychiatric help. The trial judge in the High Court held that memory of the abuse was reliably recovered with the help of professional assistance. Letters of demand were served on, perhaps only some of, the proposed defendants on 9th of February 2001. Letters were received on various dates thereafter from all but Brother McGowan indicating on whom service should be affected. There was no evidence of service on Brother McGowan of any such letter. Further, the plenary summons was only served on the actual abuser, ex-Brother Cosgrove. Pádraig Hickey changed solicitors some years later and there is a notice of change of solicitor dated 22nd August 2008, which on the face of it claims to have been sent to all of the parties. This was ostensibly accompanied on that date by a notice of intention to proceed in similar form. Apparently, it was then noticed that the plenary summons had only been served on ex-Brother Cosgrove. An application was brought on behalf of Pádraig Hickey to renew the summons. In his supporting affidavit, dated 20th November 2008, Brother McGowan was described as “a representative of the Marist Brothers”, yet no order had been sought in that regard. The affidavit avers that “in the light of recent case-law”, he had “no cause of action against the State defendants” and that he was “not proceeding against those defendants.” The affidavit avers that the action against the State defendants was discontinued, but no notice of discontinuance was exhibited. As to service on Brother McGowan, the affidavit avers that he could find “no evidence of service”. An opportunity was thereby presented to offer evidence through a replying affidavit as to who Brother McGowan was, when he joined the order and what responsibility he held and when. That opportunity was not taken either then or at the trial. Instead, the defence of this case proceeded as if Brother McGowan was an accused in a criminal trial and was keeping an unbreakable counsel of silence.

  107. By motion dated 20th April 2009, Brother McGowan sought to set aside the renewal of the plenary summons, which by this stage, 8 years after it had been issued, had been served on him. He also sought a dismissal of the proceedings against him for inordinate and inexcusable delay. He averred in his supporting affidavit that no “letter of demand was sent to or received by me on behalf of the Marist Brothers.” In a later affidavit, he also explicitly put on warning those proposing to run the case that his religious order did not run Saint John’s School:

  108. The second issue I wish to deal with .... is the suggestion that the Congregation of Marist Brothers were responsible for running the school at the time. This is not true. It is correct that a number of members of the Marist Congregation taught at the school but the Congregation never managed it. The school was at the time of the events complained of .... managed by an individual school manager, who was the local priest in the parish and not a member of the Marist Congregation.

    The issues just joined and specifically warned of should be noted together with the lack of any useful testimony on the issues. The order of O’Keefe J of 16th October 2009 was to dismiss that motion. The plenary summons thus stood.

  109. By a defence dated 10th February 2010, Brother McGowan addressed the claim of liability through ex-Brother Cosgrove having once been a member of the Marist Brothers by denying that this could give rise to liability. He pleaded at paragraph 4:

  110. The plaintiff discloses no cause of action as against the First named Defendant on the basis inter alia that the religious order described as the Marist Brothers is an unincorporated association, whose members are not liable in law, either directly or vicariously, for any act or default of each other. Further, and without prejudice to the foregoing, the current members of the Order are not liable directly or vicariously for any act or default of any member of the Order committed prior to their becoming members thereof.

  111. It is not denied that Brother McGowan is now a member of the Marist Brothers. Nor is it denied that he was at the time of these wrongs against the plaintiff Pádraig Hickey. Nor is any pleading directed as to the organisation of the Marist Brothers and, subject to what follows, the issue of the structure of this unincorporated association is not set out as a matter of fact in this defence. The defence simply says: an unincorporated association cannot be responsible for torts committed during work on its behalf; and, even still, current members are not liable for what former members did.

  112. Validity of High Court findings

  113. On this appeal there has been a challenge on behalf of Brother McGowan to the finding implicit in the award of damages that the Marist Brothers were running St. John’s School in Sligo when Pádraig Hickey was abused. Ó Néill J held that the effective running of the school was by the Marist Brothers. This extract from his judgment is to be found in paragraphs 40-42:

  114. St. John’s National School in Sligo, when the plaintiff was a pupil in it, was a Marist school in the sense that the Principal was a Marist Brother and the teachers in it were nearly all Marist Brothers. These Brothers were selected for their respective positions and directed to take up those positions by the predecessor of the first named defendant, the Provincial for the time being of the Marist Brothers in Ireland. The Marist Congregation was dedicated to the care of the young and in pursuit of this primary objective, the principal activity engaged in was teaching. Notwithstanding the clear identity of St. John’s School as a Marist school, it was nonetheless a national school subject to the prevailing legal regime for the governance of national schools .... What this meant .... was that the administrator of the parish, on behalf of the Bishop who was the patron, was the manager of the school and it was he who discharged the function of legally appointing teachers to the school, including the Principal. The school was run under the 1965 National School Rules regime, so that the curriculum pursued and the academic standard required was regulated by the Department of Education which pursued its interest in the system through the School Inspectorate system. I am satisfied on the evidence that, on a day-to-day basis, the school was run by the Marist Brothers and was under the day-to-day supervision of the Principal, who was a Marist Brother, and the manager at the time, Canon Collins, had very little, if any, hands-on involvement in the day-to-day management and running of the school, which I have no doubt the manager at the time and also, probably, the Bishop of the Diocese as patron, were more than content to leave in what they would have seen as the competent hands of the Marist Brothers .... who could supply sufficient numbers of trained and experienced teachers who shared the religious ethos which the Bishop, as patron, sought to uphold.

  115. On appeal, a court should take the findings of fact as decided by the trial judge once these are supported by evidence, as per McCarthy J in Hay v O’Grady [1992] 1 IR 210 at 217 if “the findings of fact made by the trial judge are supported by credible evidence .... however voluminous and, apparently, weighty the testimony against them” because the “truth is not the monopoly of any majority.” There is a difference between a trial judge making an erroneous finding of fact and making a choice between competing evidence. In the latter instance it is not for an appellate court to “second guess the trial judge’s view”; Doyle v Banville [2012] IESC 25 at paragraph 2.7 per Clarke J. In this case it has been necessary to consider the entirety of the transcript to adjudicate whether there was evidence upon which a trial judge could reasonably conclude that the Marist Brothers were running the school. Pádraig Hickey testified that during his time in the school he had two teachers, the first a Brother Mel, with whom he had “no issues”, and the second Brother Cosgrove, as he then was. No other teachers are mentioned, particularly none outside the religious order. In referring to teachers, he mentions the Marist Brothers as wearing a distinctive form of religious dress. Four witnesses who had been pupils with Pádraig Hickey were called to testify to the abuse that they had seen him suffer at the hands of ex-Brother Cosgrove. They were not asked about the school, its structure or even what they observed as to who was teaching there. Canon Tom Hever testified that under the Education Act 1998, a national school is run by a board of management, of which he was the current chairman. Historically, he said that the patron was the Bishop of Elphin and his predecessors and acknowledged that up to the mid-1970s the Bishop “would nominate, if he wished, a manager to manage the school on his behalf.” His understanding was that, at that period in time, it “would have been the administrator of the cathedral.” As the Diocese of Elphin owned the property, and still does apparently, a Canon Collins was the manager at the time of the abuse and was succeeded by Father Gerry Donnelly. Nothing indicates that any of these had any awareness of what was happening at the school. Indeed, one of Pádraig Hickey’s classmates who witnessed the abuse told only his mother what he had seen. The result was that he left formal education in disgust. The school also had a headmaster. Canon Hever understood that the Marist Order would “put forward a name, but that would have to be approved by the manager.” Such a headmaster would have to meet the qualification standard of the Department of Education, as funder of national schools. The function of the headmaster would be “as they are today, to run the school on a day to day basis.” He agreed that this made the headmaster the day to day manager of the school. The cathedral administrator, he said, would have had no particular experience in education and would learn, as he had, through experience or perhaps do a course. Asked how the Marist Brothers became involved in the school, he said:

  116. My understanding is that they’d always have to be invited in by the bishop, so they would have been invited in by the bishop of the time. I’m not too sure who that was or exactly when it was .... I would think initially [the teachers] were probably all Marist, but then over a period of time they would have been lay people involved as well .... over time. .... The completion of any appointment [of lay people] would have been up to the manager. The principal could have recommended somebody .... I think in those times I don’t know if interviews had come in .... but it was always up to the manager to ratify any appointment.

  117. Canon Hever agreed that the principal of the school was “always a Marist” at the time of the abuse, 1969 to 1972. Up to 1971, his evidence was that the principal was Brother Phelim and that he was replaced by the manager appointing Brother Einhard. Ex-Brother Cosgrove testified that he had entered the Marist Order at the age of 13 and had trained after secondary school as a teacher. He was “then assigned to Strokestown National School, a small school with two teachers” from where he “was assigned to St John’s school in Sligo” where he “taught the plaintiff.” His understanding that while he may have signed a standard form of contract with the Department of Education, the same as with other teachers “around the country”, he was “appointed by the provincial” of his religious order to his teaching assignments: “I was sent by the provincial when he made changes and brothers from around different places to different schools, I was sent to Sligo .... the same thing.” There was no evidence called from the defendant Brother McGowan as to his career or responsibilities.

  118. It would be unnecessary to resort to judicial notice – the experience which many judges have of their own education in national schools staffed by members of a religious order – to uphold the findings of the trial judge. No source of authority is mentioned in the evidence as operating within the school apart from the Marist Brothers. On no occasion is any decision by the school manager referred to. There is nothing to indicate him as being in a superior position. Witnesses operated on an underlying acceptance of fact that the Marist Brothers were in charge of the school. Canon Hever made explicit in his testimony that while the principal of the school was subject to the administrator of the local cathedral, this was not in any sense an executive role. In consequence, it is clear that the trial judge’s findings of fact in this regard were soundly based on evidence.

  119. On the structure within which ex-Brother Cosgrove operated, the trial judge found that he was answerable to his religious superior. This extract is taken from paragraph 43 of his judgment:

  120. .... insofar as the control of the day-to-day activity of a teacher, such as the second named defendant, was concerned, I am quite satisfied that this would have rested exclusively within the realm of the Marist Congregation, initially between the teacher and the Principal of the school, and if issues were not resolved within that relationship, it is probable that they would have been, within the hierarchical structure of the Marist Congregation, no doubt achieving compliance to whatever was required, on the part of the teacher by recourse to his vow of obedience. Only in the extraordinary circumstance of a Marist Brother defying the authority of his superiors in the congregation, in my opinion would it have been necessary to have involved the manager of the school to resolve problems or difficulties arising in connection with the discharge by the teaching Brother of his teaching duties.

  121. This finding was, again, soundly based in evidence. In addition to the above quotation in the context of the organisation of teachers within the school, the evidence of the Reverend Professor Michael Mullaney provided a foundation upon which the analysis of the trial judge of the relationship between an individual Marist brother and his superiors could be based. While, on this appeal, there was a strong focus by counsel on behalf of Brother McGowan as to whether the correct constitution of the Marist Brothers had been used by this expert witness, and while it was necessary to obtain during the testimony a copy of the earlier constitution in Latin, which no one in court spoke, these difficulties are more apparent than real. As that witness said: “I wouldn’t imagine the constitutions have changed enormously because obviously there’s a lot of consistency between the code of 1917 and 1983.” While this expert witness, called on behalf of Pádraig Hickey, had conducted no study of the Marist Brothers, his general evidence as to how religious orders are structured and managed was capable of acceptance by the trial judge. He gave a general overview of how a religious order “organises itself in terms of the hierarchy” thus:

  122. Judge, the order is an institute of consecrated life in the Roman Catholic Church. It would be known as .... an autonomous institute of pontifical right which means it’s a religious order which is approved by the Holy See and .... there are a number of superiors within it. I suppose they have a major superior who is based in Rome. The order is divided – he has oversight of the order which is divided into, I suppose, you might say provinces or I suppose by analogy to dioceses maybe for a bishop but it’s provinces and that a provincial brother in this case would be .... in each of those provinces there’s individual houses which would have their own superior but the key superior would be the provincial brother .... [w]ho is over the province who makes most .... of the significant decisions. [Going down to the next level w]ould be the superior of a house. Yes, there would be three main levels of superiors. You’d have the major superior, the provincial superior and the local or house superior.

  123. He confirmed that this was the “situation as prevailed” in 1969 to 1972. Asked by the trial judge as to the nature of the relationship between a Marist Brother and his superior, the witness emphasised their vows of chastity, poverty and obedience. Referring to the vow of obedience, he said:

  124. In the case of any religious [member of an order], a vow of obedience would mean to the superior or the provincial superior that they .... would carry out the pastoral assignments that had been entrusted to them, that they would live a life that would be compatible with the spirituality or the charism that is the – the charism is the distinctive work or apostolic work or spirituality of the order. So, the superior would ensure that a member of the order was living a life faithful to their vows, fulfilling their duties .... Well, the motivation for obedience for religious would be different. It would be based on .... religious motivations for .... spiritual reasons to imitate, obviously, Jesus. .... I mean, you can never obey something that’s immoral or unjust or against .... moral principles of any kind. Definitely [it is somewhat more extensive than the realm of obedience that exists in normal civil society], and even within other parts of the church. I mean a priest would make a promise of obedience to his bishop as distinct of a religious makes a vow, they’re very different .... shades of obedience, obviously, but a religious’ obedience is more comprehensive .... You know, decisions are made with consultation also but there is, at the end, there’s a certain sense of trust, entrusting yourself to your superior ....

  125. Each Marist Brother surrendered his salary to his superiors and was, in turn, given modest living expenses. Asked about holding property, this witness indicated “I am beyond my competence”. He simply commented that as a matter of canon law, the Marist Brothers were entitled to own property but he added “I have no idea what they owned.” Nor did any other evidence or pre-trial procedure in any way further illuminate what property the Marist Brothers may have owned or the structures within which they owned it. Nor was there any evidence to indicate who precisely Brother McGowan was, what role he had in the Marist Brothers, whether he had held office for a particular time and had a predecessor. No evidence was called on this issue, crucial to the resolution of this case, on behalf of Brother McGowan.

  126. From the point of view of vicarious liability, there was evidence upon which Ó Néill J could hold that ex-Brother Cosgrove while a Marist Brother was subject to direction by his immediate superior, in this instance the principal of the school, in ways that were equivalent to an employment contract and perhaps more binding. In terms of ordinary sense, the relationship between persons in religious orders is closer than in employment; the direction by their superior is stronger than that of a boss at work because he or she carries moral as well as financial authority; and the coherence of a group advancing temporal aims for spiritual purposes exceeds that of any secular organisation.

  127. Vicarious liability

  128. In the notice of appeal by Brother McGowan, it is pleaded that:

  129. .... the learned trial judge erred in fact and/or in law in relation to the finding of vicarious liability by failing to have any regard or any sufficient regard to the fact that [Brother McGowan] was not an employer of [Ex-Brother Cosgrove].

    It is also contended that the trial judge erred “in failing to have sufficient regard to the actual employment relationship which did exist between [Ex-Brother Cosgrove] and the school manager.” The argument here is that the abuser was not an employee of the Marist Brothers but was in fact employed by the school manager who, in turn, employed all of the Marist Brothers staffing and managing the school. Again, this is a legal argument and again the absence of contradictory evidence on key issues of fact discloses a reliance on the key elements of the defence.

  130. Ordinarily a tortfeasor will have only one employer at the time of the wrong for which the plaintiff seeks damages. There may be cases where the courts are required to determine liability as between two apparent employers. This is not one of those cases, as the only party in respect of which a relationship giving rise to vicarious liability was contended for was that between ex-Brother Cosgrove and the Marist Brothers.

  131. The extension of liability beyond the tortfeasor, the party who actually committed the wrong in circumstances which attracts an award of damages, to another party is most often dependent on an employment relationship. That is not always necessary. The modern law of vicarious liability developed from earlier models of strict liability, whereby an innocent party became responsible for the wrong of another by reason solely of a relationship. Historically, the treatment of the origins of vicarious responsibility as set out in Fleming – Law of Torts (10th edition by Sappideen and Vines, New South Wales, 2011) illuminates that relationships apart from employment were one of the strands from which current legal principles developed. At paragraph 19.10 of that work, it is stated:

  132. Vicarious liability is a familiar feature of most systems of primitive law, and early English law was no exception. A notorious example is the erstwhile liability of a husband for the torts of his wife. The responsibility placed upon the head of the household for the conduct of his familia was also the genesis of the master’s liability for the torts of his servants, which, despite a varied history reflecting considerable vacillations of judicial outlook, has remained the principal instance of vicarious liability in modern law.

  133. While developments in the common law have most recently focused on control or participation in enterprise as criteria whereby it may be determined as to whether an actual employee, that is one receiving a salary from the party sought to be made vicariously responsible, is within the scope of his or her duties, circumstances outside employment enable a sufficient connection to impose liability on another party. That other is usually sought out because of apparent greater likelihood that they will have the ability to pay. In this jurisdiction, the leading example of a non-employment relationship giving rise to liability for the negligence of another is Moynihan v Moynihan [1975] IR 192. There, a householder was sued for the negligence of another, Marie, in placing a pot of tea covered with a bright tea cosy attractive to a child on a table where the child was left at large. Marie was the two year old child’s aunt and the householder was the child’s grandmother. The reasoning of Walsh J for the majority was dissented from by Henchy J, and has been otherwise criticised judicially and academically. The analysis, nonetheless, harkens back to the historic origins of the law whereby an innocent party may be made liable for the blameworthy actions of another by reason of relationship. At page 197, Walsh J stated:

  134. The negligence attributed to Marie was not the casual negligence of a fellow guest but may be regarded as the negligence of a person engaged in one of the duties of the household of her mother, the defendant, which duties were being carried out in the course of the hospitality being extended by the defendant. The nature and limits of this hospitality were completely under the control of the defendant, and to that extent it may be said that her daughter Marie in her actions on this occasion was standing in the shoes of the defendant and was carrying out for the defendant a task which would primarily have been that of the defendant, but which was in this case assigned to Marie. As the defendant was the person providing the hospitality, the delegation of some of that task to her daughter Marie may be regarded as a casual delegation. Marie's performance of it was a gratuitous service for her mother. It was within the control of the defendant to decide when the tea would be served and where it would be served and, indeed, if it was to be served at all. It was also within the control of the defendant to decide how it would be served.

  135. Dissenting, Henchy J relied on the test which enabled liability to be established to a fault-free party where the relationship is of the party at fault performing work as a servant for the benefit of his master. Non-delegable duties were an exception to that rule, which reflected the distinction, which the law still maintains, between those engaged on behalf of another in a relationship of work and those merely hired on occasion to do a task: the chauffeur and taxi-driver distinction. While disavowing this authority, thus preferring the dissenting view, Professor Heuston in a classic edition of Salmond on Tort (17th edition, Heuston editor, London, 1977), nonetheless acknowledges that employment relationships alone are not the sole basis of vicarious responsibility in tort. Control is nonetheless essential. At page 460-461 the following is stated:

  136. One person may be the servant of another although employed not continuously, but for a single transaction only, and even if his service is gratuitous or de facto merely, provided that the element of control is present. The relationship of master and servant is commonly a continuing engagement in consideration of wages paid; but this is not essential. The service may be gratuitous, as when a child acts de facto as the servant of his father. But this must not be taken too far. The owner of a dog is hardly liable if a friend takes it for a walk and a pedestrian trips over the lead carelessly held. Nor is a householder liable if a guest, as distinct from a hired domestic help, carelessly pours hot tea over a fellow-guest. For it must always be remembered that the mere existence of a right of control is not sufficient to found liability. Otherwise a parent would always be responsible for the torts of his child, or the Crown for the torts of its prisoners.

  137. In any defendable analysis of a relationship based on control giving rise to vicarious liability, the distinction between a contract of service and a contract for services must not be blurred. The famous remark by the crane driver that “I will take no orders from anybody” noted in Mersey Docks v Coggins [1947] AC 1 by Lord Simonds at page 20 is in our time even more often replicated in the modern employment relationship where specialist operatives engage in tasks beyond the capability of their employer’s direction. Where even a minimal understanding of how to go about the task is absent from the employer, however, that does not absolve an employer of responsibility. What remains is the duty to engage safe systems and to explore reasonably how such systems might be implemented and to set appropriate rules. Tort law structures itself by imposing liability for the avoidance of future harm. As the Supreme Court of Canada stated in Bazley v Curry [1999] 2 SCR 534 at paragraph 33:

  138. .... [b]eyond the narrow band of employer conduct that attracts direct liability in negligence lies a vast area where imaginative and efficient administration and supervision can reduce the risk that the employer has introduced into the community. Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take such steps, and hence, reduce the risk of future harm.

  139. Control, nonetheless remains a component part of the test whereby non-employment relationships attract vicarious liability in respect of those who engage in a task on behalf of another. In the instances where such liability was imposed, the degree of control was at a level where the relationship was at an equivalent level to employment. Because of statutory intervention providing for automatic liability of a car owner for the driver, the once illustrative use of vehicle cases are now less relevant. Fleming, however, notes at paragraph 19.50 the following situations:

  140. A road haulier who provides his own truck may be an independent contractor even if the work is almost exclusively for one customer; while a radio artist engaged to participate in a particular play has been held to be a servant despite receiving a fee rather than a salary, because he was subject to extensive directions by the producer. The employment of a servant may be limited to a single occasion or extend over a long period; it may even be gratuitous. It applies alike to a manual labourer, a ship’s captain, a schoolteacher, a circus acrobat, a fireman, and a son occasionally requested to drive his invalid parent in the latter’s car. The continued use of the word “servant” is perhaps unfortunate, because it carries a colloquial connotation far narrower than its legal meaning ....

  141. This judgment is not to be taken as approving these authorities but as drawing on a relevant analysis. While these are instances of liability imposed outside the relationship of employment, what characterises them is a close scrutiny of the nature of the work provided and the extent and degree of control over that work within a particular context whereby it becomes inescapable that the relationship is equivalent to employment. In this instance, the careful questions of the trial judge illuminated that the obligations then assumed by ex-Brother Cosgrove had such equivalence. Indeed, the moral nature of the submission to religious vows, the duty of obedience, the unquestioning move from one teaching position to another and the strict nature of the obligation assumed within a religious order to accept direction show more than the employment relationship ever demands. Within the school, a teaching Marist Brother was equivalently under the direction of the Marist Brother principal of Saint John’s school and any relationship with either the school manager or the Department of Education was, in this instance, a matter of form. On the evidence, it cannot be seen as a matter of control or direction.

  142. From the earlier rules, the modern approach to vicarious liability may fairly be recognised as having developed through policy considerations. Those who have control over an enterprise may not be able, as in prior times, to pretend to a knowledge or level of skill equivalent to their workforce, but are enabled to organise the manner of work and relations with those with whom it is engaged so that risks are reasonably anticipated and, through safety measures and training, are minimised. Of course, the absence of such engagement in foresight and prevention may of itself establish fault. The party, however, with the ability to assess risk and to guard against or insure against it will be the organiser of the work, usually an employer. In advancing the economic interests of the enterprise, a corresponding duty has arisen whereby those working for such an enterprise, as salaried individuals, and without the backing of capital, become as one with those who employ them. Tort liability thus pursues its part of the proper ordering of society because it incentivises an enterprise towards safety and away from wrongful conduct. Some will criticise the extension of vicarious liability in such a manner as a pursuit of those who have the ability to pay. As Fleming states at paragraph 19.10:

  143. The effect of vicarious liability on the working of the modern tort system is profound. The link with personal fault is maintained in form, but does not control who pays. Identification of the employee as nominal defendant disguises the reality of the accident cost being borne by a larger, anonymous entity and eventually passed to a wider public.

  144. The control test traditionally posits that liability is established where an employee is “subject to the command of the master as to the manner in which he shall do his work”; Yewens v Noakes (1880) 6 QBD 530 at 532 per Bramwell LJ. This formula emerges as strained in the present day, not only because of its archaic use of language. It is better to ask whether the person committing the tort in the course of some task is engaged as an integral part of a business; Stevenson v McDonald [1952] 1 TLR 101 at 111 per Lord Denning. The wrong should be committed, it was once said, in the course of employment and this meant that an employee “going on a frolic of his own” would not render an employer liable. With the emergence of cases where employees acted wrongly and against instructions, even to the point of effectively doing the opposite of what they were engaged to do on behalf of the employer, resort was had to the extension of the concept of what was within the course of employment to those unauthorised acts which could be regarded as wrongful and unauthorised ways of performing an authorised task. Thus in Colonial Mutual Life Assurance v Producers Assurance Co (1931) 46 CLR 41, an insurance agent rendered his employer liable notwithstanding an explicit prohibition in his contract of employment against using any language reflecting on the character or conduct of any person or institution, where he slandered a rival company. The High Court of Australia reasoned that since it was his task to solicit business, it was incidental to that task to select and use the appropriate means of drawing in the business of prospective customers.

  145. Lloyd v Grace Smith [1912] AC 716, is the case most often cited by plaintiffs anxious to overcome what might seem a sensible principle that no employer, outside of organised crime, generally engages an employee to perpetrate frauds on customers. There, a firm of solicitors was held liable for the theft of mortgage monies by their managing clerk upon his inducement to a client to transfer the mortgage to him by means of a fraudulent misrepresentation as to the nature of the transaction. One hundred years ago, sexual abuse in a school, residential institution or therapeutic setting most certainly existed but no victim was bringing civil actions for damages. Resort was to criminal charges, if a complaint was believed and this was unlikely as reflected in special rules requiring corroboration of children and the downgrading of the testimony of those who did not understand the concept of an oath. Arching over all of that was a requirement that trial judges warn juries that it was dangerous, not even that it might be, to act on a person’s word unsupported by corroboration. Hence, vicarious liability was concerned with such wrongs as theft during the course of employment.

  146. Since those older cases, conduct such as sexual abuse has been determined to fall within the scope of employment, notwithstanding the fact that such conduct is utter anathema to professions, such as teaching, which have as their ultimate aim the enhancement of the human spirit. No one engages a minister of religion to corrupt and denigrate youth. No one employs a teacher to molest children and adolescents. There may have been a time in the progress of the common law when this kind of conduct would have been regarded as beyond the no-fault responsibility of those engaging in work such as that engaged in by ex-Brother Cosgrove. Attitudes were then different. Their conduct might be regarded as akin to a surgeon who, instead of curing in the course of an operation, deliberately causes harm. That approach, of placing such conduct outside the sphere of what an employer can be liable for, is the basis of the dissenting judgement of Hardiman J in O’Keeffe v Hickey [2009] 2 IR 309. This was another case in which the plaintiff, as a child, was sexually abused at her national school. The first defendant in that case was the abuser, the other defendants being State parties. He reasoned that cases such as Lloyd v Grace Smith and the Johnson & Johnson (Ireland) Ltd v CP Security Ltd [1985] IR 362, where an employer was held liable for thefts facilitated by a security man at a premises he was supposed to guard, were anomalies decided against the principled application of the law related to the control, or were bailment cases, or even cases of non-delegable duty. For him, strict liability was imposed on an employer for the torts of his employee where the acts were “authorised by the employer”, or while unauthorised were “so closely connected to the acts that the employer has authorised that they may rightly be regarded as modes – though improper modes – of doing what has been authorised.” This test is derived from Salmond on Tort, cited above, and goes back to the 1st edition of that work in 1907. Hardiman J said at page 328, citing a similar judgment of Costello J in Health Board v BC [1994] ELR 27:

  147. I could not hold, on established principles, that the act of sexually abusing a pupil was within the scope of the first defendant’s employment. It was the negation of what he was employed to do, an act of gross and obvious criminality. At the time it was committed, in 1973, it was an unusual act, little discussed, and certainly not regarded as an ordinary foreseeable risk of attending at a school.

  148. The earlier case of Delahunty v South Eastern Health Board [2003] 4 IR 349 at 377, per O’Higgins J, had left “open to question on a fuller analysis” whether sexual abuse could ever be within the scope of, in that case, a housemaster’s employment. In O’Keeffe v Hickey, the majority analysis was that of Fennelly J, with whom Murray CJ and Denham J agreed. In that judgment, the decisions of the Supreme Court of Canada in Bazley v Curry (1999) 174 DLR (4th) 45 and of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215 expanded the “improper mode of doing what was authorised” test, as the touchstone of employer’s liability, into a test emphasising the “closely connected” aspect of the Salmond rule. Both cases involved acts of sexual abuse in the context of authority over vulnerable young people, the opportunity for wrongdoing coming with the employment of the actual abuser and the setting within which the employer placed him. These authorities were followed by the High Court of Australia in New South Wales v Lepore [2003] HCA 4. In Lord Steyn’s analysis in the Lister case, at page 320, the issue was “whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.” Lord Clyde agreed and at page 234 suggested that “a broad approach” meant it became “inappropriate to concentrate too closely upon the particular act complained of”; which was clearly what all of the prior cases had been concerned with in connecting the fault of the tortfeasor to that of his faultless employer. Fennelly J commented at page 375:

  149. The theoretical underpinnings of the doctrine of vicarious liability are much debated but no clear conclusion emerges. The result is that strict liability is imposed on an employer regardless of personal fault, which is especially striking when the acts are criminal and could not conceivably have been authorised, even impliedly.

  150. Adopting the close connection emphasis, in Lepore, Gleeson CJ at paragraph 74 indicated that there may be a range of relationships authorised by schools in the instruction of or care for pupils. These might range from academic development where the educational environment merely provides an opportunity for abuse to much closer relationships. It might be commented that the former is more characteristic of third level teaching while at primary level, a teacher may take on a mantle more akin to the responsibilities of parental authority. Thus not all instances of the abuse of pupils by teachers came within the close connection test as it has now developed. Gleeson CJ commented:

  151. However, where the teacher student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment.

  152. While Fleming comments that the usual means of imposing tort liability is the creation of unreasonable risk, and wonders why “a different approach should be taken to vicarious liability”, vicarious liability should be seen as part of a weave of liability which enjoins responsibility where it should be exercised. The editors of that work continue at paragraph 19.130:

  153. More seriously, it is doubtful whether trying to ascertain whether there was a “sufficiently close connection” between the enterprise and the wrongful act to justify the imposition of vicarious liability is an easier exercise than applying the old “unauthorised mode of performing an authorised task” approach. Both require an examination of what the employee was authorised to do and what was actually done. This difficulty is evident in the continuing unpredictability of the judgments which have attempted to employ the newer language.

  154. It may be remarked, however, that legal tests which admit of perfect predictability are more than rare. A test in law seeks to define the parameters within which liability may be imposed, while it is the factual matrix for the application of a legal definition which changes in a potentially almost infinite way from case to case; hence the divergence between practice and commentary. The close connection analysis was adopted by the majority of this Court in O’Keeffe v Hickey. Certainly, on the traditional Salmond test, no school and no genuine religious order would authorise or endorse sexual predation on vulnerable children or adolescents, and while such torts might be perpetrated by teachers, it did not follow that this, of itself, established a sufficiently close connection for the transfer of liability to the employer. All depended upon an analysis of the particular circumstances. That continues to be the law. Ultimately, the test to be applied is that set out by Fennelly J at page 378 of the judgment in O’Keeffe:

  155. The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J. [in Delahunty v South Eastern Health Board [2003] 4 IR 349] provides an excellent example of the practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v Curry (1999) 174 DLR. (4th) 45 the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.

  156. In this case, the wrong suffered by Pádraig Hickey through the perverted attentions of ex-Brother Cosgrove were intimately woven into the web of school life. As a pupil, he had but one teacher over that handful of years; the initial setting of abuse was in the context of teaching a musical instrument, a task which requires gentle physical contact as to the proper approach to playing; the sexual violence was continued in a classroom setting; it was most often perpetrated during actual teaching; and it was a pretence at scholastic instruction. All of this establishes not authorisation or approbation, which is not essential to the vicarious sharing of liability as between the tortfeasor and the employer, but rather a close connection between the task devolved to the wrongdoer and the wrong complained of. While criminal and unauthorised, this predation was more than merely a setting for the individual wrong but, instead, was actually made intrinsic to the work which the employee had been engaged to pursue.

  157. Representative order

  158. On a consideration of the transcript of the trial in the High Court, it is notable that, after Brother McGowan is mentioned on the first line of the first day, 28th November 2012, there is silence as to who he is, his position and the structure within which he operated throughout the entire trial. On appeal, all sides accepted that he is now the current head of the Marist Brothers in Ireland. The lack of pre-trial procedures relevant to the issue of his status has already been commented upon. Order 15 rule 9 of the Rules of the Superior Courts provides that in a case where there are “numerous persons having the same interest in one cause” then by order of the High Court one of them take an action “or be authorised by the court to defend” for the benefit of or “on behalf .... of all persons concerned.” Order 4 rule 9 provides that where an action is taken or defended “in a representative capacity, the indorsement shall show .... in what capacity the plaintiff or defendant sues or is sued.” No such application was made. The statement of claim, dated 31st July 2002, is not indorsed in that way but pleads that Brother McGowan “is sued in his capacity as head of the religious order known as the Marist Brothers having its principal office at Moypark College, Clondalkin in the County of Dublin.” Whereas a company is required by legislation to have a registered office, this plea may be taken as merely descriptive of an unincorporated body.

  159. On occasion, enough may be done to include those outside a representative order schedule in an action or in the defence of one. That is rare. The strictures in the Rules should be followed because then everything is clear to the parties. In Greene v Minister for Agriculture [1990] 2 IR 17, a group of 5 farmers objected to being excluded from being able to obtain certain payments available under a rural regeneration scheme but pleaded that the action was taken in the name of “all farmers” in areas affected, in particular those hundreds of farmers listed in a schedule supplied to the defendant minister. While the point was taken by the Minister that a representative order was necessary, evidence as to who signed a petition urging the action and made a financial contribution at meetings throughout the country sufficed for Murphy J to conclude that the action was brought on their behalf. In the event the relief sought was refused and the case was settled on appeal. The limits of the evidence in this case have already been mentioned. There is nothing to enable a finding that this is truly a representative action. It is an action against the named defendants.

  160. Unincorporated associations

  161. Both sides on this appeal seem to agree that the Marist Brothers have not been incorporated into a company or into any other legal entity recognised by law. It is possible that they now hold property and it is highly probable that in the past, in particular during the dates when one of their number abused Pádraig Hickey, that this was also the situation. All that is known about the Marist Brothers and what property they may own is what may be deduced from the necessarily sketchy evidence of Reverend Professor Mullaney. Sketchy in the absence of any defendant testimony. He indicated that he knew nothing about whether the Marist Brothers “is an incorporated association”. He was asked if they owned property and replied “I don’t know what they owned but .... I would say .... by canon law they were entitled to own property as an Order, but I have no idea what they owned.” He was not even aware if there was now an “Irish province” of the Marist Brothers. He pronounced himself as “indifferent to the specifics of the case”, but was only testifying as an expert on canon law. Such an organisation “might decide to buy property or own property or hold money in trust”, he agreed, by “setting up a juridical person in canon law.” That “would also have to be compatible [with] whatever is the equivalent in civil law.” But, the normal position would be that “if you set one up in canon law you’d have to have something corresponding in civil law, like a trust, for example. .... It depends on the legal system you are in, yes.” Unfortunately, no evidence was offered by the Marist Brothers as to who they were or how they organised themselves or as to their structure. No definite or understandable comment in that regard was made by their legal representatives. Pre-trial correspondence and applications were non-existent in this case. Consequently, no admission to clarify any such matter was sought in open correspondence.

  162. Ó Néill J held Brother McGowan liable on the basis of reasoning derived from a case decided by the Supreme Court of the United Kingdom shortly before the trial; Catholic Child Welfare Society v Various Claimants (FC) [2012] UKSC 56, [2013] 1 All ER 670, [2013] 2 AC 1, and commonly called the CCWS case. There, several pupils at a boarding school run by the De La Salle Brothers, a teaching order similar to the Marist Brothers, were sexually abused by some of their number. At the time the abuse took place, the school had been a residential placement home for children in distress and the teaching brothers partly staffed it, with supervision responsibilities over dormitories. The school owners, a charitable trust, had engaged the order to manage and teach at the school. Obtaining an order against that trust satisfied the claimants. The trust was not content. As co-defendants with the Order, it sought contribution from that unincorporated association of De La Salle Brothers. This failed at trial and in the Court of Appeal but succeeded in the Supreme Court. At paragraph 20 of that case, Lord Phillips set out four propositions which were, ultimately and after analysis, applied by Ó Néill J to this case. These were:

    1. It is possible for an unincorporated association to be vicariously liable for the tortious acts of one or more of its members: Heaton’s Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15, 99; Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20, 66-7; Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366.

    2. D2 may be vicariously liable for the tortious act of D1 even though the act in question constitutes a violation of the duty owed to D2 by D1 and even if the act in question is a criminal offence: Morris v CW Martin & Sons Ltd [1966] 1 QB 716; Dubai Aluminium ; Brink’s Global Services v Igrox [2010] EWCA Civ; [2011] IRLR 343.

    3. Vicarious liability can even extend to liability for a criminal act of sexual assault: Lister v Hesley Hall [2001] UKHL 22; [2002] 1 AC 215.

    4. It is possible for two different defendants, D2 and D3, each to be vicariously liable for the single tortious act of D1: Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151; [2006] QB 510.

  163. Given that the law now accepts that vicarious liability can be established for a crime, but only after a close analysis of the centrality of the wrong to the work engaged, the central issue becomes the liability imposed on Brother McGowan by the trial judge. This raises the question of the liability of unincorporated associations and succession to that liability. It was submitted to the trial judge, as it has been submitted on appeal, that liability can be established only against a person or a body having legal personality in law, such as a company. It appears from the CCWS decision that the De La Salle Brothers operated through a body, called “the Institute”, and it appears as well that counsel for that entity took no point “on the nature of the Institute.” Ó Néill J, even though there was no such concession in this case, applied the following passage from the judgment of Lord Phillips at paragraphs 31 and 32 directly to the circumstances of the case before him:

  164. I can appreciate [the] difficulty in accepting that a De La Salle brother in Australia could be vicariously liable for the sexual assault by a brother at St William’s. Indeed, there is something paradoxical in the concept of an attempt to hold vicariously liable a world wide association of religious brothers, all of whom have taken vows of poverty and so have no resources of their own. So far as individual defendants are outside the jurisdiction this might also have given rise to an interesting question of conflict of laws. This is, however, a long way from the realities of these proceedings and Lord Faulks has not taken any point on the nature of the Institute.

    It is open to the claimants on the pleadings to seek to establish vicarious liability on the part of an unincorporated association made up at the relevant times of the brothers world wide, or of members of the London Province, or of the England Province, or of the Great Britain Province. At the end of the day what is likely to matter will be access to the funds held by the trusts, or to insurance effected by the trustees. Whether one looks at the picture world wide, or within Great Britain, the salient features are the same. The Institute is not a contemplative order. The reason for its creation and existence is to carry on an activity, namely giving a Christian education to boys. To perform that activity it owns and manages schools in which its brothers teach, and it sends its brothers out to teach in schools managed by other bodies. The Institute is, for administrative purposes divided into Provinces, each administered by its Provincial. To carry out its activities it has formed trusts that have recognised legal personality. The trusts are funded in part from the earnings of those brothers who receive payment for teaching. The trust funds are used to meet the needs of the brothers and the financial requirements of the teaching mission.

  165. Lord Phillips continued at paragraph 33 in seeming to accept that De La Salle Brothers in Australia were unlikely to be responsible for what happened in the local school where the abuse was perpetrated in England. He said:

  166. It seems to me more realistic to view the brothers of the Province from time to time responsible for the area in which Market Weighton lies as members of the relevant unincorporated association rather than the Order as a whole, but I doubt if it makes any difference in principle. Because of the manner in which the Institute carried on its affairs it is appropriate to approach this case as if the Institute were a corporate body existing to perform the function of providing a Christian education to boys, able to own property and, in fact, possessing substantial assets.

  167. Applying that passage directly, at paragraphs 68 and 69 of his judgment, Ó Néill J held:

  168. In my opinion, the foregoing passage from the judgment of Lord Philips, and in particular the last quoted paragraph, could apply with little adaptation to the role of the Marist Brothers in this case. I find the reasoning of Lord Philips in this regard compelling and I adopt it as necessary to arrive at a just outcome of the litigation. To hold otherwise, as submitted on behalf of the first named defendant; that the Marist Brothers were merely an unincorporated band of individuals is to ignore the reality of their true collective identity, to ignore their common purpose, to which each member is committed individually and collectively on behalf of all of the Brothers; to ignore that for the purposes of carrying out their mission, they necessarily acquire and manage property, no doubt held by trustees for the benefit of the congregation; that in their necessary commercial dealings with the world at large, for example, in employing lay staff, in effecting insurance policies, they must do so under the collective identity or personality of the Marist Congregation, albeit acting through trustees.

    Having regard to all of this, is it right, when it comes to the issue of vicarious liability, that the well-known identity of the Marist Congregation can simply disappear into the sands of unincorporated association? I do not think so. In my opinion, the position of the first named defendant as Provincial of the Marists is to be seen, for the purposes of this litigation, as representative of the province of the Marist Congregation in which St. John’s National School was located, and I would follow the reasoning of Lord Philips in the CCWS case and hold that it is right to approach this case on the basis that the Marist Brothers were a corporate body existing to perform the function of providing a Christian education to boys and that the first named defendant is sued as a representative of that body, which is vicariously liable for the tortious acts of the second named defendant.

  169. The differences between the CCWS case and the present case were stark. What they have in common is the fact that the tortfeasors were in each instance religious brothers bound by ties of obedience and poverty to an identifiable canonical body. In the CCWS case, it had been proven at trial that the De La Salle Brothers had corporate features, “including a hierarchy of authority.” With that feature, the Marist Brothers coalesce. The De La Salle Brothers were proven to have created “legal bodies that are capable of owning property and entering into legal relations” in pursuit of their teaching mission. The structure of the order was described in the CCWS case, and may be akin to the order in this case. It may be governed by a superior in Rome, or elsewhere, though this is not in the evidence, and it may have groups administered locally. This again is not in the evidence beyond a question by counsel for the Marist Brothers to the effect that there “is no Irish chapter”, to which no answer was given. When did that mean and why was there no defence evidence about it? In the CCWS case, it was proven that under the vow of poverty, amounting to surrender of financial autonomy to the superior, there had been set up “a 1947 trust relating to property held” for the London province and the British province. There was also a “1953 trust relating to property held in connection with the England province”. A member of the De La Salle order testified that brothers surrendering their salaries covenanted those earnings to the trust and that the trust had substantial funds derived from “the sale of its properties and from the covenanted funds”. Thereafter it became part of the trust functions to support the brothers in retirement or decline.

  170. It seems probable that in this case as well there must be trusts. There must be property held by trusts and of necessity this implies that there are trustees with obligations under trust deeds to the beneficiaries of the trusts. But who are these? What is the nature of the trusts? It could be the present brothers, the past brothers or the pupils who are to benefit. There was no exploration. A trust, absent statutory intervention, cannot under common law sue or be sued because it has no legal personality. While it is common in law reports to have a group of individuals described as the trustees of a particular organisation, the suit giving rise to the case relates to the obligations entered into by them on behalf of the beneficiaries and the discharge of or misfeasance of the duties they have bound themselves into. Cases also exist where a trust is sued for what is done on its behalf. This entity, the Marist Brothers, may be backed by a trust or by several trusts from that time but the order is an unincorporated association with all that implies in law. An unincorporated association is defined in Conservative and Unionist Central Office v Burrell [1982] 2 All ER 1 at 4 as:

  171. .... two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms and which can be joined or left at will.

  172. An unincorporated association has no legal status of itself but, like a trust, is capable of being proceeded against, or proceeding, in law through its members. Hence, people resort to representative orders. Regarding the peculiar legal status of unincorporated associations, Warburton on Unincorporated Associations (2nd Ed, London, 1992) at page 2 provides the following description:

  173. An unincorporated association has no legal status apart from the members of which it is composed. No separate body with limited liability comes into being on the formation of an unincorporated association .... This does not mean that no legal consequences follow from the founding of an unincorporated association. The members have duties and liabilities to each other. The source of those duties and liabilities is partly the general law but mainly the [construction of the] rules of the particular association.

  174. Unincorporated associations are a broad category. They can encompass organisations ranging from a local chess or Gaelic Athletic Association club to a highly organised institution like the Marist Brothers. The difficulty with this case is that, in practical terms, the Marists Brothers seem to have many of the characteristics of an incorporated association; to the point where they resemble an incorporated association more than they do a typical unincorporated association for sporting or recreational purposes. The organisation most probably has a clear hierarchical structure, operates both nationally and internationally, it must own, or have owned, land and, without making any impermissible assumptions or inferences, would possess far greater monetary resources and obligations than small unincorporated associations. The order was also, in undertaking to provide primary education, engaging in an activity that has a significant public dimension and which demands a degree of professionalism and responsibility, quite unlike most unincorporated associations. In simple terms, the operation of the Marist Brothers must be far from a local hurling or bridge club, to the extent that any legal rule which would treat both similarly for the purposes of vicarious liability has the potential of leading to unfair outcomes. Any test that would seek to apply vicarious liability to unincorporated associations must take this distinction into account.

  175. Lord Phillips posits the proposition at paragraph 20 that an unincorporated association can be liable vicariously for the wrongs of those acting for it. He seems to mean the association itself assuming corporate status while not being a corporation. That does not represent the law. Where people group together to employ someone, are not incorporated, and that person negligently injures someone, the members of the group can, however, be liable. That is different. This means no more than that members of a group responsible at the time for the negligent organisation of an event share liability. That liability appears to be a present one and not a continuing one. That is not to somehow incorporate a group, to give it legal personality. It is the individual members, not generally those who succeed them, possibly subject to an observation as to corporation made later herein. So, a group or association is not like a trust. Trustees can be succeeded, but the obligations under the trust deed remain and the trust property continues to be held. But, a group of religious brothers bound by oaths may change as to membership, people may leave and as in really old cases of sexual abuse, people will die or retreat into ill health. Of the cases cited by Lord Phillips for that proposition, vicarious liability was found against a union in picketing in Thomas v National Union of Mineworkers [1985] 2 All ER 1 because of the actions of a local branch; Heatons Transport Ltd v TGWU [1972] 3 All ER 101 was about liability of a union for the actions of a union official; and Dubai Aluminum Co Ltd v Salaam [2003] 1 All ER 97 concerned the liability of a partnership. There is no analysis in these cases of the liability of members of an association for the actions of a person who does something for them. Lord Phillips simply states the principle but the cases do not support it by any statement of principle. As O’Donnell J also observes in his judgment in this case, these are not examples of purely unincorporated associations.

  176. There must, as a matter of ordinary logic, be occasions where unincorporated associations, consisting of the body of members of the association, may become liable. Warburton states that the members of an unincorporated association may become liable where, firstly, they are all carrying on the activities in question or, secondly, “where they are in overall control of activities being carried on by some of the members.” The examples given are of Evans v Waitemata District Pony Club [1972] NZLR 733 where a club put on a horse show but organised it negligently, thus allowing the plaintiff to be injured and Stone v Bolton [1950] 1 KB 201 where the Court of Appeal acted on the assumption that members of a cricket club could be liable for a cricket ball injury in nuisance because of occupation and the House of Lords, [1951] AC 850 in negligence. In the result, there was no liability because, according to Lord Normand, "It is not the law that precautions must be taken against every peril that can be foreseen by the timorous." The party charged with responsibility was the committee of the cricket club. There is no discussion in these cases as to the point on the nature of the committee. Real authority is therefore thin but is supplemented by the analysis and authorities cited in the separate judgment of O’Donnell J; see particularly the compelling analysis by Gannon J in Murphy v Roche (No.2) [1987] 1 IR 656.

  177. On first principles, however, a proposition of several people engaging another to do a job, but who acts negligently on behalf of the group, is similar to an employment situation. The difference is that the employer is not a corporation or a person but is a group. If three people decide to operate a green grocer’s shop and engage as part of their joint enterprise another person to sell their wares, but that person contaminates the produce with bacteria, causing illness in consumers, no principle is identifiable whereby the three operators of the shop may escape vicarious liability. In the cases cited, it was the committee of the cricket club or the horse gymkhana that set up the situation who were variously made liable. In a club it is the same, though usually the actual organisers are engaged.

  178. As for the proposition put forward by Lord Phillips that an individual tortfeasor may have two masters, this may be so but it must surely depend on control. It may not be so different to liability by a group in respect of a person engaged on a task for them, supposing the employee and independent contractor issue is resolved in favour of the plaintiff. The test of control over the work of the employee is, in a more specialised era, better expressed in terms of consideration of the issue of who has the authority to organise the work, its rules, its direction and appropriate safeguards. All may be done properly by the employer but the employer may nonetheless be liable because of the attribution of fault due to control. There may be situations where the employee is genuinely under the control of two masters, but as control is the test, no facile resort to multiple liability is possible. Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151; [2006] QB 510 is authority for the proposition that a worker on a building site who causes a flood can be working for two separate contractors. It would follow that if an unincorporated association can be liable for the actions of one who, in the course of fulfilling their instructions, acts negligently, there is no reason why two employers cannot be charged with the responsibility for ensuring the proper working of an employee. The ordinary, and almost invariable situation, is that as a matter of fact it will be clear that a particular worker is tasked to a particular job under the control of what will be a clearly identifiable employer. That factual situation is not going to change save in rare circumstances.

  179. Thus it is established that a plaintiff may sue a group who have employed a person on a task but where due to that person’s misconduct or negligence the plaintiff is injured. Liability in that case is of the group jointly and severally for the tort vicariously attributed to them. In O’Keeffe v Hickey, a principal issue was the liability of the State for sexual abuse perpetrated on the plaintiff by a teacher when she was a pupil in a national school. The majority held that the State could not be liable because there existed no sufficiently proximate relationship between the State and the teacher amounting to control. In his dissenting judgment at paragraph 180, Geoghegan J considered that “exemption from vicarious liability by the State is not just.”

  180. This is the first case, certainly in this Court, where this point of no liability because of no incorporation has been raised. With discovery, it might have been ascertained what assets were held by the Marist Brothers and through what legal vehicles. Those could have been joined in the suit using the O’Byrne letter procedure; section 78 of the Courts of Justice Act 1936, but now there are obligations such an initial letter under section 8 of the Civil Liability and Courts Act 2004.

  181. What has gone before might usefully be summed up. A group, such as a club or a committee or a religious order, can employ or engage a person in a quasi-employment relationship to work for them. The wrong of that person may make the entire group liable on the same basis of vicarious responsibility as a corporation or other employer. The case law counsels swift action, however. The group is unincorporated. So, it does not continue. With the passage of decades, considerations other than limitation of actions arise. New committee members, new members of the club, new members of the religious order have nothing to do with the liability of their predecessors. That is the nature of unincorporation: rights and liabilities do not continue despite people calling themselves the same name. When they are gone, the liability is not passed on. An exception may arise, however, where one of the group on which vicarious liability is imposed is a corporation sole, for instance a bishop. His successors may remain liable provided that the concept of corporation sole is argued and found applicable. This reasoning dissents from that of O’Donnell J that an allegation against Brother McGowan that he is now head of the Marist Brothers, equates to a plea that he, as the current head of that organisation, was a member back in 1972 and is consequently vicariously liable. There surely would have to be a plea to that effect? There was not. If there had been, surely Brother McGowan would have been on notice of this point and would have given evidence as to when he joined the Marist Brothers. But, even still, ordinary fairness in procedure surely requires that Brother McGowan and Pádraig Hickey be enabled to give evidence.

  182. Corporation sole

  183. Liability, on the other hand, if it exists, based on the continuation of responsibility from head of the Marist Brothers to head of the Marist Brothers is consistent with the basis of suit. It may be that an exploration of the nature of the Marist Brothers will indicate that its head can be recognised as a corporation sole. While on the hearing of this appeal, the argument centred on who Brother McGowan was and how and whether he could be made liable, in O’Keeffe v Hickey the position of the school manager, a priest appointed by the bishop patron as in this case, was discussed. In particular, there was a serious issue as to “why the Church was not sued.” Geoghegan J records that the answer was a practical one of finding the personal representatives of the estates of the manager and patron of the school liable because, as in this case, the passage of decades had seen them die before proceedings were issued. The parents in the case had taken the advice of a journalist on the abuse being revealed by one small girl and after a boycott after a heated meeting by parents, the abusing teacher had left the school to take a position elsewhere but no complaint was made to the Department of Education or to the gardaí. These were different times. At paragraph 181, Geoghegan J commented:

  184. I am not entirely convinced that in this day and age the fact that a bishop/patron is not a corporation sole should necessarily preclude an action against the current bishop and execution against the diocesan assets. But none of that arises here. I think there have been many cases in the past where actions have been brought against a diocese relating to events that occurred under a former bishop and where a current bishop would not take the point either as a matter of honour or because of insurance cover or both. But again none of that arises in this case.

  185. That observation did not amount to a ruling that a bishop was not a corporation sole. The matter does not seem to have been argued. This category of artificial persons had its origin in ecclesiastical law; see FW Maitland – The Corporation Sole (April, 1901) LXIV LQR 335. Most often it is a bishop of a diocese but at common law it seems to be recognised that it can also be other clerics. Some jurisdictions such as the United States continue to recognise the corporation sole; see James B O’ Hara – The Modern Corporation Sole (1988) 93 Dick L Rev 23. The concept was imported at common law into that jurisdiction but has for centuries been regulated by statute for the purpose of holding property and for the succession of rights of action or liability for civil wrongs committed by its servants. Now, because of statutory recognition within the states of that union, corporations sole are entirely creatures of statute and the common law concept has ceased; Wright v Morgan (1903) 191 US 55 at 59.

  186. Nonetheless, within that jurisdiction corporations sole as applying to the Catholic Church were recognised at common law following the Declaration of Independence. That had been the case in England, and by extension also in Ireland at least prior to the application of the Reformation. Blackstone, in his Commentary on the Laws of England (1765-1769) at 457 distinguishes corporations sole from corporations having “many persons united together into one society, and are kept up by a perpetual succession of members”. Blackstone extends the scope of the concept outside that of the English monarch and bishops in the same passage:

  187. Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a sole corporation: so is a bishop: so are some deans, and prebendaries, distinct from their several chapters: and so is every parson and vicar.

  188. It is to be noted that the early editions of Halsbury’s Laws of England, as of the time of Irish independence, follow that concept. The second edition of that work, in 1933, just prior to the enactment of the Constitution, states that an “archbishop, a bishop, a prebendary or cannon, a dean, an archdeacon, a parson, a vicar and a vicar choral are each a corporation sole.” It is an open question if this law applies to the Catholic Church and in particular to persons exercising equivalent or parallel positions. With the penal suppression of the Catholic Church in England and Ireland, legal recognition was expressly confined to the Anglican Church. Did that change the law, making it possible only for Anglicans to have corporations sole and not Catholics? Could that really be the law of this country? Is it possible that in disestablishing the Church of Ireland in 1871, the abolition of every ecclesiastical corporation also accidentally applied to the Catholic Church? The principle against accidental alteration of the law may otherwise suggest; see Bederev v Ireland & AG [2016] IESC 34. The utilitarian nature of the law at the time of Blackstone makes it clear that the necessity for the institution means that it applied to the person as a corporation by reason of his nature and function:

  189. [T]he necessity, or at least use, of this institution will be very apparent, if we consider the case of a parson of a church. At the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and incumbrances; or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law, therefore, has wisely ordained, that the parson quatenus parson, shall never die, any more than the king; by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also.

  190. Since the Anglican Church seems to have inherited the rights and obligations of the former church, the concept seems of general application. Certainly, to exclude, as in the times of penal suppression, one church would not seem right. It has not been argued as to whether this position continues to obtain under Bunreacht na hÉireann and in particular Article 50. Halsbury (5th edition, 2008) volume 24 at paragraph 314 states:

  191. A corporation sole is a body politic, having perpetual succession, constituted in a single person, who, in right of some office or function, has a capacity to take, purchase, hold and demise (and in some particular instances introduced by statute, power to alienate) real property, and now, it would seem, also to take and hold personal property, to him and his successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is there may be, and often are, periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy, or no one in existence in whom the corporation resides and is visibly represented. Unlike a corporation aggregate, a corporation sole has a double capacity, namely its corporate capacity and its natural or individual capacity; so that a conveyance to a corporation sole may be in either capacity.

  192. Liability of Brother McGowan as a corporation sole succeeding to the liability of the head of the religious order when this abuse was perpetrated, whether he is a corporation sole, if that legal entity continues in Irish law, cannot be decided now. It has not been argued because the focus was on the failure to establish the liability of an unincorporated group. There can be liability on a set of persons. That is not to make the group into a corporation. It is to acknowledge liability to the victim of a tort of those who organised an employee or quasi-employee, a religious brother. That liability is against each person in the group as it then was. That liability does not continue unless one of them is a corporation sole. Then it may, depending on the state of the evidence. On the state of the evidence, the teaching by ex-Brother Cosgrove was for the Marist Brothers. There is now and there was then a head of that unincorporated association. The head of the Marist Brothers had to be a member of the group in respect of whom vicarious liability arises. The successor to the corporation sole may still carry that liability depending on the viability of the concept of corporation sole in Irish law. As this discussion illustrates, that concept is uncertain. That is a matter for argument in the High Court, or since the majority disagree with a retrial and would simply uphold liability against Brother McGowan, a point for some other case.

  193. Retrial

  194. While the judgment and order of the High Court must be reversed, the issue arises as to whether there should be an order for a retrial. Such a retrial would focus solely on the continuation of the concept of corporation sole in Irish law and its applicability to the head of a religious order. It would leave in place the findings of vicarious liability upheld in this judgment. Such an order has been sought by counsel for Pádraig Hickey in the event of the order of the trial judge not being upheld on appeal.

  195. Order 58 rule 29 of the Rules of the Superior Courts, provides that subject “to the provisions of the Constitution and of statute” the Supreme Court may “exercise or perform all the powers and duties of the court below” and “may give any judgment or make any order which ought to have been made and may make any further or other order as the case requires.” The former rule was Order 58 rule 9, but there are no decided cases noted on the circumstances wherein this Court ought to order a retrial in Delaney and McGrath – Civil Procedure in the Superior Courts (Third Edition, 2012, Dublin) at page 717. The matter is therefore one where this Court must be guided by experience as to the right form of order to make in such a case.

  196. No proper exploration was made as to the concept of corporation sole at trial in the High Court. This is despite the issue being mentioned in the leading case in this area, namely O’Keeffe v Hickey. It would be wrong for this Court to decide that issue in the absence of argument. As it has been alleged in the High Court that Brother McGowan was sued as representative of the Marist Brothers, that encapsulates an allegation that he is liable as part of the unincorporated group. If the concept of corporation sole applies to the head of that order, and he is the successor, the liability from 1972 continues. It would not be right, however, for each side to be deprived of an opportunity to argue this point. Further, it would not be appropriate for this Court to decide it, as it may require evidence. But why, as with so much else, was it not previously argued and is it right to allow a retrial on this issue?

  197. Experience suggests that the normal circumstance whereby a retrial of a specific issue is ordered on appeal is where an error of law by a trial judge has resulted in an order that does not accord with law. Sometimes cases are sent back in that context for the hearing of further evidence or submissions in order that a correct order may be made. Sometimes, as in this case, only a defined portion of the case is reverted to the High Court. In the consideration of any such issue, the justice of the case must be the touchstone by which a decision is made.

  198. It may be argued that the consequences of the various steps taken in this case in the High Court should not be visited on Brother McGowan or on the Marist Brothers. That argument may sound in costs, but in the wider context procedural wrangling cannot be allowed to be productive of injustice. Litigation is not solely about the interplay of rules which carry little or no consequences, as in a game. The results of litigation seriously affect the parties to that litigation and the legal system strives to afford relief not to those who are best at its manipulation but rather to pursue the cause of justice. At all times the Marist Brothers knew that they were being pursued for vicarious tort liability in respect of their former member, Christopher Cosgrove. As in other cases, the CCWS decision being a case in point, it would have been possible for that order to have presented evidence with a view to assisting the judge as to a proper determination. It is less than satisfactory for civil cases to be defended on the basis of some parallel with the right to silence in criminal law.

  199. There is a further point. The issues as to identity and succession to or continuation of liability have surfaced in other cases, most particularly in O’Keeffe v Hickey. These issues are of high public importance. On this appeal, this Court cannot resolve them because of the deficit of evidence available to the court. In addition, the matter should be argued at first instance. It is only by adducing such evidence that this case may be properly resolved. The duty of the Court is to make such order as the case requires.

  200. The matter should therefore be referred back to the High Court to that limited extent.

  201. The Civil Liability Act

  202. Ó Néill J reduced the damages in this case on the basis that the plaintiff ought to have pursued the school manager. The argument presented was that the pursuit of the school manager would have yielded another party with liability to damages. The argument made on behalf of Brother McGowan was that s. 35(1)(i) of the Civil Liability Act 1961 required that reduction. The section provides that for “the purpose of determining contributory negligence”:

  203. where the plaintiff's damage was caused by concurrent wrongdoers and the plaintiff's claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer;

  204. On this point, the trial judge ruled at paragraph 75:

  205. Whilst I am satisfied that in law, there can be dual vicarious liability in respect of tortious acts of another, in this case, I am satisfied on the evidence that by far the greatest element of control over the teaching activities of the second named defendant rested with his superiors in the Marist Congregation and the manager of the school had little or no role to play in any of this. The manager did, however, retain his residual legal authority over the contractual arrangements between the manager and the second named defendant, an authority which cannot be treated as negligible or a nullity. However, a fair apportionment of liability and, it would seem to me that such an apportionment is necessary in this case to assess the extent of the liability which the plaintiff must assume pursuant to s. 35(1)(i); must be of small degree. Thus, I would assess the liability of the manager at 10% of the overall liability.

  206. The Act of 1961 provides at s. 11 that “two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to .... the injured person .... for the same damage.” Specifically that can occur through vicarious liability of one for another, breach of joint duty, conspiracy, concerted action to a common end or independent acts causing the same damage” as per subsection (2)(a). The wrong may be “a tort, breach of contract or breach of trust, or any combination of them” as per subsection 2(b). Under s. 12, concurrent wrongdoers are “each liable for the whole of the damage in respect of which they are concurrent wrongdoers.” Liability may then be apportioned by a court “in such a manner as may be justified by the probabilities of the case”. The rules dealing with apportionment of damages are set out in section 14. Contributory negligence is defined in section 34. Damages are apportioned according to the degree of fault or, if this is not possible, equally.

  207. Here a divergence occurs from the separate judgment of O’Donnell J. In dissenting on this point, it must be identified that the order of Ó Néill J is founded on a clear finding of fact that the controllers of the school were the Marist Brothers. That finding of fact is not to be disturbed. This is not a case where there can be two employers. With the passage of time, those with experience of being a parent will know that the dangers ignored or pretended out of existence have now been addressed by the ‘Stay Safe Program’ for empowering children to realise the inviolability of their own bodies. As was commented by May LJ in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd, it is usual in most cases for it to be obvious who, in terms of a possibility of a worker having differing employers, was in charge of the work. As previously said in this judgment, cases where two groups of employers are responsible for the one person are necessarily rare. This is not one of the cases. The school manager was on the evidence rarely present in the school, had little to do with management and nothing to do with the day to day running of the school. Thus there is no basis for the application of contributory fault to the manager in this case. A division of 50% responsibility to the present and the absent defendants therefore does not arise. An employer was clearly identifiable from the evidence.

  208. Damages and contribution

  209. O’Donnell J reasons for the reduction in damages to €150,000 and that figure reflects the nature of the case and the limits placed elsewhere on general damages. On the analysis in this judgment diverging from the proposition that two employers are not identifiable in this case, that figure should not be reduced by 50%. Even if two employers were identifiable, fault should not automatically be 50/50 but on the basis of the contribution to the wrong. Here, on this analysis, it would be to the complete exclusion of the nominal employer, because in effect he had nothing to do with this. Thus liability would be 100%

  210. Order

  211. There is substantial concurrence, but a few important areas of disagreement, in this judgment with that of O’Donnell J. In order to clarify where the accord lies and where divergence should be identified, the following observations are made, for the sake of clarity, based on the reasoning herein:

    1. The judgment of Ó Néill J in the High Court cannot be upheld on the basis he reasoned as to the liability of a religious order, as this makes an unincorporated association into what is in effect an incorporated entity with succession to liability no matter what change of membership, O’Donnell J and the majority of the Court concur;

    2. Depending on the circumstances, those running a school or educational establishment may be liable when a teacher sexually assaults a child, O’Donnell J and the majority concur;

    3. An unincorporated association can be liable in damages through it members and the members can be vicariously liable for actions done in the course of a task assigned by the members, including abuse during teaching, but that liability is of those for whom the task is done at that time and those who join a group after a tort is already committed cannot be liable, O’Donnell J and the majority concur;

    4. Since an unincorporated association can have liability for the actions of its employees, the individual members of the Marist Brothers in Ireland as of 1972 are liable for sexual abuse perpetrated by one of their number while acting on their behalf as a teacher, O’Donnell J and the majority concur;

    5. As to the liability of the members of this unincorporated group, Brother McGowan was not proved, and was not alleged in pleadings or in evidence, to have been a member of that order at that time when the abuse was committed and the burden of proof is on the plaintiff, and that fact should have been alleged in order to enable contrary evidence from Brother McGowan, fair procedures, but here there is neither pleading nor positive evidence to that effect, dissenting from O’Donnell J and the majority who would uphold the High Court judgment on the basis explained in his judgment;

    6. Reduce damages to €150,000 in order to keep damages within a rational range in the context of the maximum available for the worst personal injury cases, concurring with O’Donnell J and the majority;

    7. While in some instances of employment, there may be two employers, O’Donnell J and the majority concur, here, on this evidence, there is only one – namely the Marist Brothers, not the manager of the school, dissenting from O’Donnell J and the majority;

    8. It follows that the amount of damages cannot be reduced under the Civil Liability Act, dissenting from O’Donnell J and the majority;

    9. The head of the Marist Brothers in Ireland may be a corporation sole. If so, since in 1972 the head was part of the unincorporated group, his liability may continue, but this point is obiter as are any comments by O’Donnell J on this issue;

    10. There should be a retrial in the High Court, but not as to the liability of those running a group of teachers, a religious order which is more than equivalent to an employment relationship, one of whom abuses a pupil, that is decided herein, nor as to the particular liability of the abuser, that is decided, nor as the liability of members of an unincorporated group or association one of whom abuses a child sexually in the course of duties assigned by the members, that liability is possible and is decided herein, but solely on the narrow point as to whether the legal personality or corporation sole is part of Irish law and whether it applies to Brother McGowan as successor to the head of the Marist Brothers in Ireland, O’Donnell J would uphold the judgment of the High Court on the narrow basis set out in his judgment from which, on that specific point, this judgment dissents;

    11. Liability of a corporation sole and the position of the head of the Marist Brothers should be the only point retried in the High Court by way of evidence and legal argument, but there should be a retrial in respect of that, O’Donnell J and the majority would not order a retrial since his position is to uphold liability based on his contrary analysis on point 5.


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