Member of religious order vicariously liable for sexual assaults carried out by other member

O'Donnell J (majority judgment): Historic sex abuse claims - delay in acknowledging abuse - claims arising from abuse where alleged abuser has died - actions against institutions or the state - claim against teacher who was member of religious order - alleged abuse occurred in the classroom - fondling of child at front of class - award of significant damages in High Court - claim against the religious order - vicarious liability - pleading of claim against religious order - unincorporated association - whether acts authorised by employer - whether acts so connected with authorised acts that they might be regarded as modes of doing what had been authorised - treatment of unincorporated association as if it were a corporate body - relationship between religious order and member of order - legal status of Marist Order - relationship to provincial - liability of an unincorporated association - a representative defendant - contributory negligence - s.35(1)(i) of the Civil Liability Act 1961 - quantum - corporation sole - assessment of damages - whether €350K excessive, given comparison with catastrophic personal injuries case - reduction to €150,000 - contributory negligence under section 34 of 1961 Act.

"[I]t 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."

"There is ... 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."

"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. ... 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. ... 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."

"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."

Charleton J (dissenting): Vicarious liability for sexual abuse of pupil by teacher - unincorporated associations - not established that other members of order knew of abuse - whether current provincial had been employer of abuser at time of alleged abuse - representative order - corporation sole - whether established that provincial of order had been a member at the time of the alleged abuse - whether head of religious order was a corporation sole -

"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."

"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 ..."