Hickey v McGowan: Member of religious order held vicariously liable for sexual abuse by another member

Here, the Supreme Court overturned the High Court’s finding that the Marist Order (an unincorporated body) was vicariously liable, separately from its members, for the sexual abuse perpetrated by one of its members (Cosgrove, second defendant). However, the Court held that, as Cosgrove had perpetrated offences while acting as a member of the Order, and as McGowan (first named defendant) was a member of the Order at the time the offences were committed, McGowan (and possibly all other members at the time) was vicariously liable.

 

Background

The High Court (here) found that, between 1969 and 1972, Cosgrove, while working as a national school teacher in Sligo, sexually abused Hickey, who was a pupil at the school. In 2001, Hichey began the process of instituting High Court proceedings against Cosgrove, naming McGowan, a Provincial in the Order, as first defendant. For reasons outlined in the judgments, the High Court proceedings did not come to trial until November 2013.

The High Court (O’Neill J) followed the UK Supreme Court case of Catholic Child Welfare Society and Ors v Various Claimants (FC) and Ors [2012] UKSC 56. There, that court held that the Society, although an unincorporated body, could be held vicariously liable for abuse by a brother on vulnerable children in a care home. The court stated that the facts supporting that decision were: the Society had a hierarchical structure similar to a corporate body; the Provincial directed the teaching positions of the brothers; the brothers teaching activities were in furtherance of the Society’s mission; and the Society’s rules dictated the teachers’ conduct.

The High Court awarded Hickey €350,000 but found that the school manager was vicariously liable to the extent of 10%, reducing the award against McGowan and Cosgrove to €315,000. McGowan appealed the High Court decision to the Supreme Court (pre 33rd Amendment).

 

Supreme Court

O’Donnell J wrote the judgment for the majority, Denham CJ, MacMenamin J and Dunne J concurring. Charleton J dissented (here).

McGowan’s case was that an unincorporated body lacks separate legal personality and cannot be liable for the actions of one of its members. O’Donnell accepted McGowan’s argument that the evidence before the High Court was fragmentary and could not support a finding that the Provincial was in control of the school or the teaching at the time in question. (The school was owned by the diocese, the bishop appointed a manager and the Order provided the teachers).

On the law relating to unincorporated bodies, O’Donnell cited Clarke J in Sandymount and Merrion Residents Association (SAMRA) v An Bord Pleanála and Ors [2013] 2 I.R. 578:

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.

The evidence presented before the High Court could not establish an exception to that rule in this case. Therefore, the question was whether the abuser’s co-members could be held liable.

On that issue, O’Donnell J cited Murphy v Roche & Ors (N0 2) [1987] 1 IR 656, which concerned an action against a GAA club. There, Gannon J stated:

… 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 right to recourse to for indemnity to the wrongdoer.

O’Donnell found that, even on the fragmented evidence presented, Hickey had established that he suffered abuse by Cosgove, who was a member of the Order; that McGowan is a Provincial of the Order and was also a member at the time the abuse was perpetrated; and that was enough to justify judgment against McGowan. Although O’Donnell stated that it “remains to be seen what benefit such judgment against an individual will be to the plaintiff” [56].

O’Donnell reduced the award to €150,000 and held that the High Court had erred in apportioning liability between the parties unequally, as a court would apportion liability for contributory negligence. The correct manner to apportion vicarious liability between two parties for offences of a sexual nature perpetrated by a third party is on an equal basis. In this case that was between the Order (McGowan) and the school manager, who was not named in proceedings; in effect, an award of €75,000.

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