In Hickey v McGowan & Ors  IESC 6, the Supreme Court of Ireland has upheld the judgment of the High Court that the Marist Order was vicariously liable for the sexual abuse which the plaintiff, Pádraig Hickey, suffered at the hands of one Brother Cosgrove between 1969 to 1972 while attending a National School run by the Marists. Although the appeal was successful to the extent that contributory negligence was adjudged to be split equally between the Order and the school manager and the overall award for personal injury was significantly reduced, the Supreme Court upheld the finding of vicarious liability.
The current Provincial of the Marist Order, Brother Patrick McGowan, had appealed a High Court judgment which awarded Mr Hickey €315,000 after assessing the Order’s contributory negligence to be 90 per cent. The administrator of the parish on behalf of the Bishop, who was the patron, was also the manager of St John’s National School and it was he who discharged the function of appointing teachers to the school, including the Principal. The curriculum pursued and the academic standards required were regulated by the Department of Education, which also operated the School Inspectorate .
The High Court had expressly adopted the analysis of Lord Phillips of Worth Matravers PSC in Catholic Child Welfare Society and Ors v Various Claimants & Ors  UKSC 56 (on which we have previously commented); and paragraph 69 of the judgment of the High Court had treated the Marist Order as if it were a corporate body of which Brother McGowan could be regarded as the representative . Donal O’Donnell J said that, under the common law, a religious order such as the De La Salle Order (in Catholic Child Welfare Society) or the Marist Order was an unincorporated association. It was “essential to the very nature of an unincorporated association that it is not a body corporate”  and that it could therefore not be treated as such. As members of an unincorporated association, therefore, members of the Order did not have any direct liability for the acts of others; but they did “have a vicarious liability for the acts of other members” .
The Supreme Court (Charleton J dissenting in part) allowed Brother McGowan’s appeal to the extent that the contributory negligence of the school manager was assessed at 50 per cent and the final award made against Brother McGowan as Provincial of the Marist Order was reduced to €75,000. However, it agreed with the High Court’s finding that the Marist Order, as an unincorporated organisation, could be vicariously liable for the acts of Brother Cosgrove; and it now seems to be settled law in all four jurisdictions that religious orders can be held vicariously liable in such circumstances.
The Court ordered a retrial on one narrow point, as to “whether the legal personality or [sic] 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” 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” [73.10].
[With thanks to Irish Legal News]