The Supreme Court has sent a narrow question back to the High Court in Pádraig Hickey’s case over sexual abuse he suffered as a pupil at St John’s National School in Sligo between 1969 and 1972.
In a judgment delivered on 9 February 2017, Mr Justice Charleton said the High Court’s reasoning could not stand insofar as it treated the unincorporated Marist Brothers as a continuing corporate body. He ordered a retrial limited to whether the legal concept of a corporation sole forms part of Irish law and applies to Brother Patrick McGowan as successor to the head of the Marist Brothers in Ireland.
The Supreme Court accepted the trial judge’s findings that Christopher Cosgrove, then a Marist Brother and teacher, abused Hickey, and that the abuse was closely connected to his teaching duties. It also concluded that those who ran the school could, depending on the circumstances, be vicariously liable for a teacher’s abuse, and that members of an unincorporated association may be liable for work done on their behalf. The judgment said that responsibility would attach to the members at the time, not people who joined later.
The unresolved question was whether McGowan could be liable through succession to the office of the order’s head. Charleton J said there was no evidence or pleading establishing that McGowan was a Marist Brother when the abuse occurred. The court said the corporation sole issue had not been properly explored or argued and could require evidence, so it should be determined at first instance.
The judgment also records that the High Court had awarded Hickey €350,000, reduced by 10 per cent to €315,000 because the school manager had not been pursued. Charleton J agreed with the Supreme Court majority that damages should be reduced to €150,000, but disagreed that the school manager’s absence justified a further reduction under the Civil Liability Act. Those disagreements formed part of his judgment; the order for a limited retrial was confined to the corporation sole issue.
The Supreme Court’s order reversed the High Court judgment and referred that limited issue to the High Court. The abuse finding, the abuser’s liability and the legal possibility of liability for members of the unincorporated group were not sent back for retrial. The judgment records that the majority would not order a retrial, instead upholding liability on the basis explained in Mr Justice O’Donnell’s judgment.