JGH v Residential Institutions Review Committee: foreseeability is within the definition of abuse in the Residential Institutions Redress Act 2002,

In JGH v Residential Institutions Review Committee & anor the majority of the Supreme Court held that the common law principles of negligence, including foreseeability, apply to the interpretation of “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child” in the Residential Institutions Redress Act 2002.

 

Background

As a child, during the 1960s, H was a patient and resident of  a hospital. In 1962, the Hospital made a misdiagnosis that H had rheumatic fever and transferred him to a nursing home (a private, voluntary institution). A consultant at the Hospital was a director of the Nursing Home. H was in the Nursing Home for a period of approximately two years on the first occasion and again for a period of one year in 1965. The Nursing Home applied treatments that had no scientific justification and that were seen as heterodox even by the standards of that time. That included keeping children in a sedated state for long periods.

It is not contested that the treatment that H received in the Nursing Home constituted abuse within the meaning provided under the 2002 Act. Nor is it contested that he could recover compensation in a tort action against the Hospital for negligence in transferring him to the Nursing Home. But there is no finding of negligence against the Hospital. The Act provides for compensation without a finding of negligence. An applicant need only show that they were a resident of a scheduled institution and suffered an injury consistent with abuse.

The issue on appeal is whether H is entitled to compensation under the Residential Institutions Redress Act 2002, as the Hospital is one of the scheduled institutions under the 2002 Act, but the Nursing Home isn’t.

The questions certified by the Court were:

 

1. Could a decision by a scheduled institution as prescribed by the 2002 Act to transfer a child to a non-scheduled institution constitute abuse within the meaning of the Residential Institutions Redress Act 2002?

2. In making a determination that such a decision constituted abuse within the meaning of the Act, was the Respondent entitled to apply common law principles of negligence including the principle of foreseeability, having regard to

(a) the definition of abuse in s. 1 of the Act, which includes “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child”, and
(b) the prohibition on addressing or making findings relating to any issue of fault or negligence set out in s.5 of the Act?

 

Residential Institutions Redress Act 2002

S 7 of the Act provides:

(1) Where a person who makes an application (an “applicant”) for an award to the Board establishes to the satisfaction of the Board—

(a) proof of his or her identity,

(b) that he or she was resident in an institution during his or her childhood, and

(c) that he or she was injured while so resident and that injury is consistent with any abuse that is alleged to have occurred while so resident,

the Board shall make an award to that person in accordance with section 13 (1).

 

Judgments

Writing for the majority of the Court, Clarke CJ held, in line with precedent, that:

The legislation should be given a generous interpretation in favour of affording compensation because that was the clear intent of the Oireachtas. However, in so doing the Court can only adopt an interpretation which can be said fairly to arise on the wording of the legislation itself. To go beyond a meaning which can fairly be attributed would be to impose a liability on the State which it could not properly be said that the Oireachtas intended to accept [4.2].

Under the principle of foreseeability for recovery in tort, Clarke CJ believed that H would be entitled to recover damages for the abuse he suffered in the Nursing Home if he established that the Hospital was negligent in transferring him there. Pointing to s 10 of the Act, which allowed for recovery where injury was the result of abuse within a scheduled institution, Clarke CJ held that the Act was sufficiently ambiguous so as not to prohibit H recovering compensation for his injury suffered in the Nursing Home. Given that ambiguity, applying a generous interpretation towards the awarding of compensation, and because H’s injuries were foreseeable, Clarke CJ proposed allowing H’s appeal and returning the case to the Review Committee for assessment of damages. MacMenamin, Dunne and O’Malley JJ concurred.

 

O’Donnell J dissented. He agreed with the majority that the Act must be interpreted broadly. However, he interpreted s 7 as limiting compensation to applicants who could demonstrate injury consistent with abuse while resident in a scheduled institution. If H’s claim was to succeed, his transfer to the Nursing Home must be defined as abuse. But that would be inconsistent with s 1 of the Act, which provides for redress for residents of scheduled institutions transferred to laundries. Such claimants must show injuries consistent with abuse while at the laundries. The act of transfer is not considered abuse in itself. Although H’s treatment in the Nursing Home may be abuse as defined in the Act, it did not occur while he was resident in the Hospital. O’Donnell J did not accept that H’s transfer to the Nursing Home was abuse as defined in the Act, and stated: It is simply inappropriate to introduce part only of the reasoning process in private law claims when addressing a question of the interpretation of a statutory scheme [59].

 

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