Compensation for institutional resident extended to his transfer to a nursing home

Clarke CJ (majority decision): Judicial review - redress scheme - residential institutions - Residential Institutions Redress Act, 2002 - no compensation in respect of time in nursing home - transferred to nursing home as result of misdiagnosis - ill-treated during time in nursing home - failure of Review Board to award compensation for time in nursing home - judicial review granted by High Court - appeal allowed by Court of Appeal - legislation not confined to abuse or injury within the scheduled institution - whether inappropriate to extend compensation to such claims - s 7, 2002 Act.

"Thus, there would be no difficulty in a straightforward case where a child, who was resident in an institution, was abused, for example, by an employee of that institution while away on a trip or, indeed, where, due to the negligence of a manager, such a child was placed in a situation of danger which allowed them to suffer a relevant injury outside the institution itself. Such issues do not arise on the facts of this case but it is important to make clear that the legislation does not narrowly confine the compensation scheme to cases where the actual injury or abuse physically occurred within the institution concerned."

"For the reasons analysed earlier I am satisfied that it is appropriate, consistent with the previous jurisprudence of this and other Courts, to adopt a generous or liberal approach to this undoubtedly remedial legislation. If I was satisfied that the intention of the Oireachtas was to exclude consequential injuries occurring after a claimant had ceased to be resident in a scheduled institution, then it would follow that it would be necessary also to conclude that an interpretation which permitted compensation in such cases could not fairly be said to arise on the wording of the legislation itself, and thus such an interpretation would not be permissible. However, I am not, for the reasons which I have set out, satisfied that such a clear intent of the Oireachtas can be discerned from the legislation as a whole and in particular have come to that view because a clear intent to exclude such injuries seems to me to be inconsistent with s. 10(4)."

O'Donnell J (dissenting): Admission of child to hospital which was scheduled institution - transferred to nursing home because of illness - treated badly - questions of statutory interpretation - context of statute - categories of abuse - background to claim - whether transfer to nursing home constituted abuse - decision of review committee - whether committee had acted illegally or in excess of jurisdiction - distinction between claim in tort and a claim for statutory compensation.

"A botanist visiting parts of the West of Ireland would readily be able to discern both the direction and ferocity of the prevailing winds from the manner in which a tree grows and has been bent over time. A geologist may deduce from rock formation that considerable force was applied at some period in the distant past. Similarly, a common law lawyer from another jurisdiction encountering the 2002 Act for the first time, and without any accompanying commentary or background knowledge, would be able to conclude that it was the product of very significant and substantial forces at play when the legislation was enacted."

"There was clear statutory intent that persons who suffered abuse in other locations such as schools, homes, hospitals or other institutions, could not benefit from the 2002 Act. Many children suffered the same treatment as the applicant did in the Nursing Home. There is nothing in the statute to suggest that some only of these children may recover compensation under the 2002 Act, and then only because they happened to be admitted to the Nursing Home from a hospital or other institution which was indeed a scheduled institution."