Brother McGowan was not proved, and was not alleged in pleadings or in evidence, to have been a member of that order at that time when the abuse was committed and the burden of proof is on the plaintiff, and that fact should have been alleged in order to enable contrary evidence from Brother McGowan, fair procedures, but here there is neither pleading nor positive evidence to that effect, dissenting from O’Donnell J a

more than equivalent t

If so, since in 1972 the head was part of the unincorporated group, his liability may continue, but this point is obiter as ar

order to keep damages within a rational range in the context of the maximum available for the worst personal injury cases, concurring

the individual members of the Marist Brothers in Ireland as of 1972 are liable for sexual abuse perpetrated

but that liability is of those for whom the task is done at that time and those who join a group after a tort is already committed cannot be liable

makes an unincorporated association into what is in effect an incorporated entity with succession to liability no matter what change of membership

That argument may sound in costs, but in the wider context procedural wrangling cannot be allowed to be productive of injustice. Litigation is not solely about the interplay of rules which carry little or no consequences, as in a game. The results of litigation seriously affect the parties to that litigation and the legal system strives to afford relief not to those who are best at its manipulation but rather to pursue the cause of justice. At all times the Marist Brothers knew that they were being pursued for vicarious tort liability in respect of their former member, Christopher Cosgrove. As in other cases, the CCWS decision being a case in point, it would have been possible for that order to have presented evidence with a view to assisting the judge as to a proper determination. It is less than satisfactory for civil cases to be defended on the basis of some parallel with the right to silence in criminal law.

ing mentioned in the leading case in this area, namely O’Keeffe v Hickey. It would be wrong for this Court to decide that issue in the absence of argument.

. The successor to the corporation sole may still carry that liability depending on the viability of the concept of corporation sole in Irish law.

he law, therefore, has wisely ordained, that the parson quatenus parson, shall never die, any more than the king; by making him and his successors a corporation

a body polit

ould that really be the law of this country? Is it possible that in disestablishing the Church of Ireland in 1871, the abolition of every ecclesiastical corporation also accidentally applied to the Catholic Church?

Most often it is a bishop of a diocese but at common law it seems to be recognised that it can also be other clerics. Some jurisdictions such as the United States continue to recognise the corporation sole; see James B O’ Hara - The Modern Corporation Sole (1988) 93 Dick L Rev 23. The concept was imported at common law into that jurisdiction but has for centuries been regulated by statute for the purpose of holding property and for the succession of rights of action or liability for civil wrongs committed by its servants. Now, because of statutory recognition within the states of that union, corporations sole are entirely creatures of statute and the common law concept has ceased; Wright v Morgan (1903) 191 US 55 at 59. 57. Nonetheless, within that jurisdiction corporations sole as applying to the Catholic Church were recognised at common law following the Declaration of Independence. That had been the case in England, and by extension also in Ireland at least prior to the application of the Reformation. Blackstone, in his Commentary on the Laws of England (1765-1769) at 457 distinguishes corporations sole from corporations having “many persons united together into one society, and are kept up by a perpetual succession of members”. Blackstone extends the scope of the concept outside that of the English monarch and bishops in the same passage: Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a sole corporation: so is a bishop: so are some deans, and prebendaries, distinct from their several chapters: and so is every parson and vicar.

I am not entirely convinced that in this day and age the fact that a bishop/patron is not a corporation sole should necessarily preclude an action against the current bishop and execution against the diocesan assets. But none of that arises here. I think there have been many cases in the past where actions have been brought against a diocese relating to events that occurred under a former bishop and where a current bishop would not take the point either as a matter of honour or because of insurance cover or both. But again none of that arises in this case.

t exists, based on the continuation of responsibility from head of the Marist Brothers to head of the Marist Brothers is consistent with the basis of suit.

s a corporation sole, for instance a bishop

When they are gone, the liability is not passed on.

New committee members, new members of the club, new members of the religious order have nothing to do with the liability of their predecessors.

With discovery, it might have been ascertained what assets were held by the Marist Brothers and through what legal vehicles. Those could have been joined in the suit using the O’Byrne letter procedure; section 78 of the Courts of Justice Act 1936, but now there are obligations such an initial letter under section 8 of the Civil Liability and Courts Act 2004.

Liability in that case is of the group jointly and severally for the tort vicariously attributed to them

ut, a group of religious brothers bound by oaths may change as to membership, people may leave and as in really old cases of sexual abuse, people will die or retreat into ill health.

s to mean the association itself assuming corporate status while not being a corporation. That does not represent the law.

No separate body with limited liability comes into being on the formation of an unincorporated association...This does not mean that no legal consequences follow from the founding of an unincorporated association. The members have duties and liabilities to each other. The source of those duties and liabilities is partly the general law but mainly the [construction of the] rules of the particular association

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.

corporate feature

“I don’t know what they owned but … I would say … by canon law they were entitled to own property as an Order, but I have no idea what they owned.” He was not even aware if there was now an “Irish province” of the Marist Brothers. He pronounced himself as “indifferent to the specifics of the case”, but was only testifying as an expert on canon law. Such an organisation “might decide to buy property or own property or hold money in trust”, he agreed, by “setting up a juridical person in canon law.” That “would also have to be compatible [with] whatever is the equivalent in civil law.” But, the normal position would be that “if you set one up in canon law you’d have to have something corresponding in civil law, like a trust, for example. … It depends on the legal system you are in, yes.” Unfortunately, no evidence was offered by the Marist Brothers as to who they were or how they organised themselves or as to their structure. No definite or understandable comment in that regard was made by their legal representatives. Pre-trial correspondence and applications were non-existent in this case. Consequently, no admission to clarify any such matter was sought in open correspondence.

There is nothing to enable a finding that this is truly a representative action. It is an action against the named defendants.

rder

were intimately woven into the web of school life. As a pupil, he had but one teacher over that handful of years; the initial setting of abuse was in the context of teaching a musical instrument, a task which requires gentle physical contact as to the proper approach to playing; the sexual violence was continued in a classroom setting; it was most often perpetrated during actual teaching; and it was a pretence at scholastic instruction. All of this establishes not authorisation or approbation, which is not essential to the vicarious sharing of liability as between the tortfeasor and the employer, but rather a close connection between the task devolved to the wrongdoer and the wrong complained of. While criminal and unauthorised, this predation was more than merely a setting for the individual wrong but, instead, was actually made intrinsic to the work which the employee had been engaged to pursue.

The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J. [in Delahunty v South Eastern Health Board [2003] 4 IR 349] provides an excellent example of the practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 DLR. (4th) 45 the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected

ith a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment.

ed:

strict liability is imposed on an employer regardless of personal fault, which is especially striking when the acts are criminal and could not conceivably have been authorised, even impliedly.

At the time it was committed, in 1973, it was an unusual act, little discussed, and certainly not regarded as an ordinary foreseeable risk of attending at a school.

“authorised by the employer”, or while unauthorised were “so closely connected to the acts that the employer has authorised that they may rightly be regarded as modes - though

Since those older cases, conduct such as sexual abuse has been determined to fall within the scope of employment, notwithstanding the fact that such conduct is utter anathema to professions, such as teaching, which have as their ultimate aim the enhancement of the human spirit. No one engages a minister of religion to corrupt and denigrate youth. No one employs a teacher to molest children and adolescents. There may have been a time in the progress of the common law when this kind of conduct would have been regarded as beyond the no-fault responsibility of those engaging in work such as that engaged in by ex-Brother Cosgrove. Attitudes were then different. Their conduct might be regarded as akin to a surgeon who, instead of curing in the course of an operation, deliberately causes harm. That approach, of placing such conduct outside the sphere of what an employer can be liable for, is the basis of the dissenting judgement of Hardiman J in O’Keeffe v. Hickey [2009] 2 IR 309. This was another case in which the plaintiff, as a child, was sexually abused at her national school.

ort liability thus pursues its part of the proper ordering of society because it incentivises an enterprise towards safety and away from wrongful conduct. Some will criticise the extension of vicarious liability in such a manner as a pursuit of those who have the ability to pay.

n this instance, the careful questions of the trial judge illuminated that the obligations then assumed by ex-Brother Cosgrove had such equivalence. Indeed, the moral nature of the submission to religious vows, the duty of obedience, the unquestioning move from one teaching position to another and the strict nature of the obligation assumed within a religious order to accept direction show more than the employment relationship ever demands. Within the school, a teaching Marist Brother was equivalently under the direction of the Marist Brother principal of Saint John’s school and any relationship with either the school manager or the Department of Education was, in this instance, a matter of form. On the evidence, it cannot be seen as a matter of control or direction.

The continued use of the word “servant” is perhaps unfortunate, because it carries a colloquial connotation far narrower than its legal meaning…

he cathedral administrator, he said, would have had no particular experience in education and would learn, as he had, through experience or perhaps do a course

75,000

Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take such steps, and hence, reduce the risk of future harm.

What remains is the duty to engage safe systems and to explore reasonably how such systems might be implemented and to set appropriate rules

The relationship of master and servant is commonly a continuing engagement in consideration of wages paid; but this is not essential. The service may be gratuitous, as when a child acts de facto as the servant of his father. But this must not be taken too far. The owner of a dog is hardly liable if a friend takes it for a walk and a pedestrian trips over the lead carelessly held. Nor is a householder liable if a guest, as distinct from a hired domestic help, carelessly pours hot tea over a fellow-guest. For it must always be remembered that the mere existence of a right of control is not sufficient to found liability. Otherwise a parent would always be responsible for the torts of his child, or the Crown for the torts of its prisoners.

As the defendant was the person providing the hospitality, the delegation of some of that task to her daughter Marie may be regarded as a casual delegation. Marie's performance of it was a gratuitous service for her mother. It was within the control of the defendant to decide when the tea

In this jurisdiction, the leading example of a non-employment relationship giving rise to liability for the negligence of another is Moynihan v Moynihan [1975] IR 192. There, a householder was sued for the negligence of another, Marie, in placing a pot of tea covered with a bright tea cosy attractiv

Vicarious liability is a familiar feature of most systems of primitive law, and early English law was no exception. A notorious example is the erstwhile liability of a husband for the torts of his wife. The responsibility placed upon the head of the household for the conduct of his familia was also the genesis of the master’s liability for the torts of his servants, which, despite a varied history reflecting considerable vacillations of judicial outlook, has remained the principal instance of vicarious liability in modern law.

In terms of ordinary sense, the relationship between persons in religious orders is closer than in employment; the direction by their superior is stronger than that of a boss at work because he or she carries moral as well as financial authority; and the coherence of a group advancing temporal aims for spiritual purposes exceeds that of any secular organisatio

endered his salary to his superiors and was, in turn, given modest living expenses. Asked about holding property, this witness indicated “I am beyond my competence”. He simply commented that as a matter of canon law, the Marist Brothers were entitled to own property but he added “I have no idea what they owned.

Well, the motivation for obedience for religious would be different. It would be based on … religious motivations for … spiritual reasons to imitate, obviously, Jesus. … I mean, you can never obey something that’s immoral or unjust or against … moral principles of any kind. Definitely [it is somewhat more extensive than the realm of obedience that exists in normal civil society], and even within other parts of the church. I mean a priest would make a promise of obedience to his bishop as distinct of a religious makes a vow, they’re very different … shades of obedience, obviously, but a religious’ obedience is more comprehensive … You know, decisions are made with consultation also but there is, at the end, there’s a certain sense of trust, entrusting yourself to your superior …

es.

Judge, the order is an institute of consecrated life in the Roman Catholic Church. It would be known as … an autonomous institute of pontifical right which means it’s a religious order which is approved by the Holy See and … there are a number of superiors within it. I suppose they have a major superior who is based in Rome. The order is divided - he has oversight of the order which is divided into, I suppose, you might say provinces or I suppose by analogy to dioceses maybe for a bishop but it’s provinces and that a provincial brother in this case would be … in each of those provinces there’s individual houses which would have their own superior but the key superior would be the provincial brother …[w]ho is over the province who makes most … of the significant decisions. [Going down to the next level w]ould be the superior of a house. Yes, there would be three main levels of superiors. You’d have the major superior, the provincial superior and the local or house superior.

In referring to teachers, he mentions the Marist Brothers as wearing a distinctive form of religious dress.

:

he experience which many judges have of their own education in national schools staffed by members of a religious order

he wrong is ascribed without fault to the person or body employing him. Brother McGowan, as the current head of the Marist Brothers in Ireland, was held by the High Court to be responsible vicariously for the wrongs of ex-Brother Cosgrove four decades previously. The fault of ex-Brother Cosgrove was ascribed without fault on the part of Brother McGowan to him solely by reason of his now having a leading role in that religious order in Ireland

n unincorporated group of men who take religious vows of celibacy, obedience and poverty in order to devote themselves to teaching. The vows are for life.

organisation lacking legal personality

Brother McGowan joined the Order after 1972, but if so it is not explicitly pleaded, and was not addressed in evidence. The defendant deliberately chose

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.

The difficulties of assessment of damage to the psyche is compounded in cases such as this which extend over a considerable period, and where for the majority of the period, the plaintiff was unaware of the abusive conduct because he had blanked it from his memory. I do not wish in any way to depreciate the significance of these matters for the plaintiff. I do consider that the process of bringing proceedings, confronting a wrongdoer and having the determination of the court are more important factors in cases such as this than for example in a car accident. Confronting an abuser and obtaining a public and authoritative determination that the defendant is responsible for the abuse, is an important vindication of a plaintiff. While this is a distressing case, it must also be acknowledged that there have been even more severe and traumatising cases of abuse. There is regrettably a spectrum of cases with which the courts are now familiar, and any case must be located on that spectrum. This case while significant and serious, is not at the most extreme end of the scale.

n the basis that such an office is a corporation sole. I recognise the learning which he has brought to bear on this issue. I agree that the entire question of the potential liability of a religious institution, or order, first at common law, and then after the coming into force of the Constitution is something which deserves study and argument. If correct it might provide a basis for the liability of the Order through its Provincial, which the cases, in different ways, consider appropriate. However I cannot see that it is a possible route in this case which was commenced 15 years ago and concerns events more than 25 years earlier. If it was clear that additional legal argument would be decisive then there might be some argument for permitting that argument to be made, even at this stage. However the question of potential liability as a corporation sole is one not canvassed before, and is by no means clear cut

The appropriate course in such a case is to write to the order or provincial threatening to sue all individual members of the order unless a defendant is nominated. If that course is not taken, then all members who can be identified can be joined as defendants. If however any judgment is obtained against those defendants, the judgments are individual and whether or not such judgments will be met by insurance, or from assets which may be held for the benefit of the order more generally, may depend on the terms of the insurance, and indeed the terms upon which such assets are held, and perhaps the willingness and ability, of the order to make funds available to satisfy any judgment against an individual. Whether this is a desirable position as a matter of law and whether further changes should or could be made, is a matter which might usefully be considered by those charged with law reform.

It may be rough justice, but it is justice all the same, if the same standard is applied to his case.

r acts of a member prior to the defendant becoming a member of the association.

liable either directly or vicariously for any act of any other member. 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.

an

It is my opinion that any wrongful action of one member carries vicarious liability for all members to the extent that it corresponds with the common interest; and, to the extent that it is not common to all and is at variance with the rules, the liability remains that only of the individual, subject to express agency, if any. However, 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 the right of recourse for indemnity against the wrongdoer. In the absence of express terms no one individual sharing the common interest served by the action of the agent, be he member or servant, can avoid his vicarious liability for the entire damage to the injured party even though contribution may be obtained under the Civil Liability Act, 1961.”

Miller v. Jackson [1977] 3 All ER 338, featuring Lord Denning’s dissent from the proposition that a cricket club could be liable for balls hit into the property of its neighbours, is normally cited as authority for that proposition

rhaps not entirely inconceivable that it is within the powers of the court, and the common law, to provide for an exception to that rule in some cases. However, the basis upon which such a step could be taken, was not addressed in argument, or discussed in the CCWS case. As it stands therefore in my view, the Marist Order is an unincorporated association

a religious order is an unincorporated association.

The conclusion is, that in the absence of statutory intervention, an unincorporated association lacks separate personality and cannot sue or be sued as if it were.

egal person,

corporate entity.

References to insurance, or the existence of property held on trusts, or the reality of proceedings, cannot in my view provide an acceptable legal route between these two points. The UK cases referred to as establishing the proposition that an unincorporated association can be vicariously liable for the acts of its members reveal themselves on examination to be cases about trade unions and partnerships - both of which have statutory provisions and recognition, the effect of which is to give them some status for the purposes of legal proceedings.

by some process of unexplained alchemy

However, the potential range and number of claims brought in respect of historic sexual abuse raise the prospect of very extensive potential liabilities which in other countries have led to the bankruptcy of parishes, dioceses or institutions, and may threaten their capacity to continue to undertake valuable work in the community with marginalised and vulnerable people, which, it should be recognised, is work that was carried out by members of religious orders - themselves not merely blameless for the particular wrongdoing but who are admirable for their selfless devotion to charitable works. It is perhaps not entirely surprising therefore that the difficult issue of the liability of an order or its members is maintained in these proceedings. In any event it must be addressed.

it was possible for the Church to organise its affairs in civil law so far as was necessary, and to give effect to its objects. Accordingly, it was possible to hold property through trustees, to make contracts through nominees who would be liable, and then indemnified, and so far as the interests of the order required protection in court, it was possible for trustees or nominees to bring proceeding

The limited extent to which religion and in particular the Catholic religion was recognised in Article 44 of the 1937 Constitution

This approach stems in turn from the historic unwillingness of the common law to recognise the Catholic Church in particular (and presumably other religions other than the Established Church) as a legal entity in its own right, notwithstanding its obvious size, organisation and importance in the daily life of the community

Reference to insurance and trusts therefore only distracts focus on what are undeniable difficult issues.

However, in my view the most difficult issue in this case is whether the assumption, and indeed the conclusion in the High Court, that the Marist Order could be treated as if it were a body corporate and therefore a single entity vicariously liable for the acts of its members, and therefore permitting execution against what are deemed to be the assets of the body (and avoiding perhaps execution against any individual assets of members if such is possible) is indeed correct

While the issue was raised primarily in the context of the legal nature of a religious order, an issue which must be addressed later in this judgment, I do not think it is helpful to address any part of these issues on the ruthlessly pragmatic basis that what matters is access to funds held by a trust or to an insurance policy. Firstly, it remains the case in Ireland in my view, that it is not permissible to seek either to join an insurance company to a personal injuries action, or to address the question of the presence or absence of insurance in such proceedings. Strictly speaking the existence of insurance is irrelevant to the legal issues to be determined whatever its practical significance. The law is meant to apply equally to the rich, the poor, the insured and the uninsured, and questions of liability must be determined on that basis. Indeed, this is an important discipline when issues come to be addressed in the context of cases in which individual plaintiffs may have suffered serious and life changing injuries. More importantly, while it is important at the level of policy and legal history to acknowledge the interaction of insurance and liability, that insight is of little assistance here. Indeed, it is to reverse the natural order in which the issue should be addressed. A person is normally obliged to, or at least wise to, insure against a liability which he or she may have: if there is no liability, then there is no requirement to obtain insurance and indeed conceivably such insurance may not be available. The question of liability of an individual cannot therefore be determined by the existence of insurance against that risk. 45 At a more practical level, there is no necessary guarantee that any insurance policy does exist which could be interpreted at this remove, to provide cover for claims in respect of conduct which occurred 40 years ago. Given the antiquity of these claims, it is entirely possible that there are no existing insurance policies. The policies have been lost or lapsed, or the entity providing the insurance no longer exists, or if it still exists that its reinsurance has been lost either partially or wholly. Even if a policy existed which, fortuitously could be argued to provide cover for members of a religious order in a school, it is unlikely that it would have been entered into, or, a premium set, in contemplation of the risk of sexual abuse, or the possibility that it could be perpetrated by members of a religious order. This is particularly important given the fact that if the level of damages awarded in this case were replicated generally, then the cost would be very substantial indeed to any organisation. The resulting cost would not be spread over those few policies which might still exist, and which could be said to cover abuse which occurred nearly 50 years ago. Instead the cost will be borne by the insurance company and sought to be recouped by increased premiums from future policy holders, not responsible for the abuse and perhaps not religious orders. It is not clear why that is any fairer as an outcome. Different difficulties arise in the case of trusts. Normally, the fact that an individual or property is a beneficiary of a trust would mean that the trust property is not available to meet any award made against the individual. There is nothing to suggest that there is any trust here or in any such similar case, or indeed any similar funds to provide ready compensation for the plaintiff, and therefore assuage concerns as to the extension of liability in the case. Reference to insurance and trusts therefore only distracts focus on what are undeniable difficult issues.

he function of tort law, and vicarious liability which is a part of it, is I think to identify a defendant who can justly be called upon to compensate an injured party. There remains in the real world however an unavoidable risk that the party or parties deemed liable by the law may not be able to meet an award, particularly when the award is sizeable and the wrongdoing occurred a considerable time ago by persons who may be deceased, or in institutions which may no longer exist, or for matters in respect of which insurance was not available, or if insurance was obtained, it may no longer be in place. If this results in victims not receiving compensation which is considered desirable, then that may be a matter for public policy more generally, but it may be beyond the reach of inter-party litigation and any possible development of the common law.

There is in my view no discernible movement in the common law world to expand vicarious liability, and therefore liability without fault, on the basis merely of an ability to pay alone, and any such development would raise fundamental issues. Instead, there has been a number of carefully analysed, but not always consistent, attempts in the courts of the highest level in the common world, to provide a framework in which to address claims of historic sexual abuse.

41 In most such cases of imposition of liability without individual culpability, to some extent at least it can be said that the defendant creates, or permits and often benefits from, a situation which carries with it the risk of injury or the wrongdoing by others. In the case of the employer/employee, the employee is in a position to commit the tort because he is employed and provided with equipment which he or she may misuse. The employer chooses the general activity and it is of value to him or her. To that extent it is perhaps not unfair that an employer should bear the risk of wrongdoing, even wrongdoing which he or she may forbid and indeed genuinely abhor. This is, I would add, irrespective of whether the employment is for profit or can be labelled an enterprise. In the context of this case, it is of course possible that in another life the second named defendant might still have been a national school teacher, but it is surely beyond argument that a large part of the reason why he was in an overcrowded national school room with young boys between 1969 and 1972 was because he was a member of the Marist Order, and that he and the Order considered that he was pursuing an important and central objective of the Order in teaching such children rather than merely providing a service to the manager of the school. The fact that here the abuse occurred in the very school room is important, and in my view a decisive feature in this case.

ability without wrongdoing, intentional or careless

espite the theoretical arguments which have been advanced for over half a century for a general system of compensation without fault and burden spreading, whether by an insurance or State supported scheme, there has been a stubborn but persistent adherence to culpability or responsibility as an underlying justification for liability in tort

re fact of voluntary association may not create the type of intense relationship that justifies imposing vicarious liability in the case of a religious order.

But once it is accepted that vicarious liability can extend to organisations and relationships other than that between employer and employee, then the size, impact and organisation of a religious order mean that it is not a large step to extend vicarious liability to such an order. Indeed, although the common law insisted upon viewing religions and religious orders (other than established churches) as nothing more than unincorporated associations, the degree to which a member of a religious order is subsumed into a collective entity is almost unique in society and involves a far closer connection with the other members than exists between the most enthusiastic member and a club or between the most loyal employee and an employer. As Charleton J observes in his judgment, “the moral nature of the submission to religious vows, the duty of obedience, the unquestioning move from one teaching position to another and the strict nature of the obligation assumed within a religious order to accept direction show more than the employment relationship ever demands”.

If so the onlooker would surely struggle to understand that the only person or body who as a practical matter may be required to compensate a plaintiff abused in this way by a member of the Marist Order, in a school staffed by the Order, should be the local parish priest. Accordingly I conclude that in principle, once it is accepted there can be vicarious liability of acts of abuse a religious order (or its members) may be vicariously liable for acts of abuse which are sufficiently closely connected to the object and mission of the order.

It is perhaps conceivable that an onlooker might consider it not unfair that the only person liable for sexual abuse should be the perpetrator, and that these actions are so wrong, and outside contemplated activity, that they are the responsibility of the wrongdoer alone and no other body can be made liable for them without culpability on their own part, such as failing to act on complaints. This was the thrust of the judgment of Hardiman J in O’Keeffe

m the perspective of justice and fairness

The relationship between members and the order, and the importance to the order of the role of members as teachers of young people, are matters which have no direct comparators in the secular world

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.

he 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.

ndeed, 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.

here is however 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.

There is evidence that Brother Cosgrove was a member of the Marist Order. It is accepted that the Order was a teaching order, and supplied teachers to the school. That was how Brother Cosgrove came to be in the school. Teaching was not simply an occupation, but an important and central part of the mission of the Order. The Order was established, and its members bound, not merely by rules, but solemn vows taken by them and considered sacred and binding. Those vows included chastity, obedience, poverty and celibacy. I think we are entitled to take cognisance of the fact that members of religious orders at that time normally wore habits of standard design, identifying them as members of orders, and indeed correspondingly reducing their individuality, while emphasising their part in a collective.

here is no doubt therefore that the plaintiff’s case would have been considerably stronger if he had shown that there was shared control, or even, which is not implausible, that at certain times the school was effectively run by the Marist Order.

i) the Institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body; (ii) the teaching activity of the brothers was undertaken because the Provincial directed the brothers to undertake it; (iii) the teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the Institute; and (iv) the manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. Lord Phillips also suggested a simpler analysis at paragraph 61: “Provided that a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage 1, just as in the case of the action of a member of a partnership. Had one of the brothers injured a pedestrian when negligently driving a vehicle owned by the Institute in order to collect groceries for the community few would question that the Institute was vicariously liable for his tort.”

“that the priest was appointed in order to do the work of the church with the full authority to fulfil that role, being provided with the premises, the pulpit and the clerical robes. He was directed into the community and given free rein to act as representative of the church. He had been trained and ordained for that purpose and his position of trust gave him great power.”

Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread

Because of the manner in which the Institute carried on its affairs it is appropriate to approach this case as if the Institute were a corporate body

It is open to the claimants on the pleadings to seek to establish vicarious liability on the part of an unincorporated association made up at the relevant times of the brothers world wide, or of members of the London Province, or of the England Province, or of the Great Britain Province. At the end of the day what is likely to matter will be access to the funds held by the trusts, or to insurance effected by the trustees. Whether one looks at the picture world wide, or within Great Britain, the salient features are the same. The Institute is not a contemplative order. The reason for its creation and existence is to carry on an activity, namely giving a Christian education to boys. To perform that activity it owns and manages schools in which its brothers teach, and it sends its brothers out to teach in schools managed by other bodies. The Institute is, for administrative purposes divided into Provinces, each administered by its Provincial. To carry out its activities it has formed trusts that have recognised legal personality. The trusts are funded in part from the earnings of those brothers who receive payment for teaching. The trust funds are used to meet the needs of the brothers and the financial requirements of the teaching mission.

ndeed, there is something paradoxical in the concept of an attempt to hold vicariously liable a world wide association of religious brothers, all of whom have taken vows of poverty and so have no resources of their own.

This prompted Lord Phillips to raise the question of whether it was “right to treat the De La Salle Defendants as being simply an unincorporated band of brothers scattered around the world” (

Unincorporated associations had been held to be vicariously liable for the tortious acts of a member citing in this regard Heaton’s Transport (St Helen’s) Ltd. v. Transport and General Workers’ Union [1973] A.C. 15; Thomas v. National Union of Mineworkers (South Wales Area) [1986] Ch. 20, 66-7 and Dubai Aluminium v. Salaam [2003] 2 AC 366. Vicarious liability was possible even when the acts of the employee were unauthorised, in breach of duty to the employer, and even criminal. It was also possible for two (or more) defendants to be vicariously liable for the acts of another.

However, for present purposes it can be said that the conclusion of the Supreme Court was that where sexual abuse was perpetrated on vulnerable children attending a residential school by a person employed by one body, and who was a member of religious order, both the employer and the order could be vicariously liable for that abuse.

Brother McGowan as essentially indistinguishable from the Order itself. The question therefore becomes whether the Order (or its members) is vicariously liable for the actions of a member.

The question here for determination is a separate and perhaps anterior one: is the first named defendant either on his own behalf or as a representative of the Marist Order vicariously liable for the acts of the second named defendant (including in this case the sexual abuse)?

during the very act of teaching in the classroom. Indeed, this seems to have been tacitly accepted in this case insomuch as the case proceeded on the assumption that the manager employer was vicariously liable for the abuse. It follows therefore that there was a close and sufficient connection between the teaching carried out and the criminal abuse

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he considered that the test he adopted was more expansive than that asserted by Hardiman J., but not decisively so

hink it is clear however that the judgment of Fennelly J. must be taken now to represent the law

ufficiently close connection between the State parties who were the defendants and the teaching in question. The result of the case was therefore heavily influenced by the distinctive structure of national school teaching in Ireland.

The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability.

already well established law that an employer could be vicariously liable for the wrongful acts of an employee including criminal acts: Lloyd v. Grace, Smith & Co. [1912] 1 A.C. 716 and Johnson & Johnson (Ireland) Ltd. v. C.P. Security Ltd. [1985] I.R. 362. On balance, Fennelly J. was prepared to apply the close connection test which

ty may have some resources (if only a private dwelling house) does not in and of itself, in my opinion, convert him, her or it, into a “deep pocket”

It is indeed the antithesis of what was authorised and intended, and amounts to a serious criminal offence. It is apparent therefore, that liability cannot attach to an employer for sexual abuse if the Salmond test is maintained. 21 In essence, Hardiman J. considered that the Salmond test should be maintained as he considered that the policy justifications underpinning it were justified, whereas he was sceptical of more expansive approaches which had found favour in other jurisdictions and among textbook writers on the basis that they ensured recovery of damages by a plaintiff who had suffered significant injury

liability witho

he intense scrutiny approach emphasised

There was no suggestion that the children were particularly vulnerable.

In essence therefore, the school was a national school with a manager who was the legal employer of teachers: those teachers were supplied by the Marist Order. The trial judge concluded that the day to day control of the activity of a teacher would have rested exclusively within the realm of the Marist congregation; initially between the teacher and the principal of the school, and if issues were not resolved within that relationship, then within the hierarchal structure of the Marist Order. Only in the extraordinary circumstances of a Marist Brother defying the authority of his superiors in the congregation would it have been necessary, the trial judge considered, to have involved the manager of the school to resolve problems or difficulties in connection with the discharge by the teaching brother of his teaching duties. The judge considered that the Marist congregation had therefore full control on a daily basis over the management of the national school in the relevant years.

ntense concentration on the facts,

ul

“the well-known identity of the Marist Congregation can [not] simply disappear in to the sands of unincorporated association”

. St. John’s National School in Sligo was a national school subject to the prevailing legal regime for the governance of national schools discussed in the judgments of the Supreme Court in O’Keeffe v. Hickey [2009] 2 IR 302.

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1 The emergence of the phenomenon of historic sexual abuse of children, and in particular abuse carried out by clergy and members of religious orders, has had a profound impact in many countries around the world, not least Ireland. That impact has also been felt in the law, which has struggled to deal with the very many issues thrown up by proceedings both civil and criminal. In the field of criminal law, the prosecution of offences alleged to have occurred many years previously, on extremely limited evidence, sometimes in circumstances where evidence of the principal complainant has been the product of a process of recovery of memories through therapy, raises many issues. In civil cases different though no less intractable problems arise. First, and most obviously, I think it is now well accepted that a feature of abuse committed against young children is that it may take considerable time for a victim to be in a position to acknowledge the fact of abuse, and be prepared to institute proceedings. Indeed this was treated as almost a matter of judicial knowledge in the judgment of Murray J. (as he then was) in the important case criminal law case of P O’C v. DPP [2000] 3 I.R. 87, at p.105. However, the lapse of time which often occurs between the matters complained of, and the bringing of proceedings, raises issues not simply of the Statute of Limitations, and of the fairness of proceedings, but also, the less well recognised practical problems of identifying a defendant against whom an action obtained and who or which may not have sufficient assets to meet any claim for damages. It is in the nature of claims such as these that they will involve a complaint of abuse by an adult against a young child, some time ago. Almost inevitably, defendants against whom proceedings are now sought to be brought, may be old, and in some cases deceased, or may have few assets, and therefore, it either may not be possible, or practical to bring proceedings and maintain them to conclusion. 2 As a result, proceedings are often most vigorously contested not between the alleged victim and the abuser, but rather between the victim, the claimant, and an institution which can be a corporate body, the State, or a body with the benefit of an insurance policy - and all of which have in common that they may have a longer life expectancy than the individual whom it is sought to make responsible for the wrongdoing. There is something questionable, at least in my view, in companies and institutions being made liable long after the event for matters, in respect of which no claim could now be brought against the persons who actually perpetrated the wrongs, but that is perhaps an unavoidable consequence of different rules of law relating to the time limit for claims being brought against the estates of deceased persons, and the legal status of an incorporated body. It is however unavoidable that claims relating to historic matters such as those which occurred in this case more than 40 years ago, will encounter significant additional hazards over and above the inherent difficulties of proof which might arise even in cases where the alleged abuse occurred recently.

As such he had taken vows of chastity, poverty and obedience.

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coherent or consistent pattern emerging.

limits of the developing law on both limbs of vicarious liability: first the person or persons who can be liable without individual fault or culpability on their part, for the tortious acts of another; and second, the particular acts for which a person or body may be vicariously liable. Behind both these questions lies a difficult question as to the legal status of a religious order, and its liability, or the liability of its members, for wrongdoing perpetrated by another member.

tly.