IESC 69 · Supreme Court

SUPREME COURT

Appeal No. 23/16

Clarke C.J.

O’Donnell J.

MacMenamin J.

Dunne J.

O’Malley J.

Between/

JGH

Applicant/Appellant

AND

The Residential Institutions Redress Review Committee

Respondent

AND

The Residential Institutions Redress Board

Notice Party

Judgment of O’Donnell J. delivered the 24th day of October 2017

1 This case concerns interpretation of provisions of the Residential Institutions Redress Act 2002 (“the 2002 Act”) which created a

statutory scheme to compensate certain persons for abuse carried out in certain institutions. Having regard to the prohibition on

disclosing information contained in s. 28 of that Act and in light of the general importance the legislative scheme attaches to

confidentiality I propose to refrain from naming either the applicant, the Hospital or the Nursing Home the subject-matter of these

proceedings.

2 It appears that the applicant JGH, when a little more than two and a half years old, was admitted to a children’s hospital (which I

will call hereafter “the Hospital”) perhaps for a circumcision procedure although this like many other aspects of the case is unclear.

The Hospital is a scheduled institution for the purposes of the Residential Institutions Redress Act 2002. Under the Act if a claimant

can satisfy a limited number of requirements, he or she may receive compensation for abuse and injury suffered in a scheduled

institution. It appears that while in the Hospital he was diagnosed with suspected rheumatic fever. Subsequently on the 28th of

August 1962, it is alleged he was transferred to a nursing home (which I will call “the Nursing Home”) and was certainly admitted to

the Nursing Home on that date. The Nursing Home was dedicated to the treatment of rheumatic fever. That illness was unfortunately

commonplace in early and mid 20th century Ireland. The Nursing Home is not an institution for the purposes of the 2002 Act.

3 A key feature of this case is that a consultant at the Hospital was also the director of the Nursing Home. JGH was treated there by

enforced bed rest for a very prolonged period, a treatment which it now appears was not appropriate even by the standards of the

time. He claims that he was also treated harshly by staff and recounts a number of traumatic incidents. His family life was troubled.

His father died young, his mother was bipolar. The prolonged and forced separation from his family at an early age has, it is said,

caused him serious psychological trauma and he has had an unhappy life. The events in the Nursing Home as recounted, would it

appears satisfy the standard for “abuse” and “injury” within the 2002 Act and these proceedings have been dealt with on that

assumption. However, it is argued that a decision in the Hospital (or by the consultant who was both employed by the Hospital and

the director of the Nursing Home) led to him being in the Nursing Home. Is this in itself sufficient to constitute abuse and injury in a

scheduled institution (“the Hospital”) to permit him to recover compensation for the abuse and injury suffered in an institution (“the

Nursing Home”) which was not scheduled, and accordingly in respect of which he could not directly recover compensation under the

Scheme?

4 This is a question of statutory interpretation. That task involves a careful analysis of the provisions of any piece of legislation which

is to be understood against the legal and factual background which is discernible from the Act or which is expected to be known by

those to whom the Act is addressed. While the language of the Act is the primary guide to its interpretation, that task is not to be

approached as an abstract exercise. As Judge Learned Hand said in Cabell v Markham (1945) 148 F 2nd 737,739:

“It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary: but

to remember that statutes always have some purpose and object to accomplish, whose sympathetic and imaginative

discovery is the surest guide to the their meaning.”

This is one of the earliest statements of what has come to be described as a purposive approach, although it might as easily be

understood as an explanation of the modern approach to the exercise of seeking to understand and give effect to legislation. As Lord

Bingham of Cornhill put it in R(Quintavalle ) v Secretary of State for Health [2003] 2W.L.R 692;

“The Court’s task within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the

controversial provision should be read in the context of the statute as a whole, and the statute as a whole should be

read in the historical context of the situation which led to its enactment”.

5 A botanist visiting parts of the West of Ireland would readily be able to discern both the direction and ferocity of the prevailing

winds from the manner in which a tree grows and has been bent over time. A geologist may deduce from rock formation that

considerable force was applied at some period in the distant past. Similarly, a common law lawyer from another jurisdiction

encountering the 2002 Act for the first time, and without any accompanying commentary or background knowledge, would be able to

conclude that it was the product of very significant and substantial forces at play when the legislation was enacted. Of course

anyone familiar with one of the darkest passages in recent Irish history would be able to identify those forces immediately. It emerged

at the end of the 20th century, when Ireland prided itself on being an economically poor but morally strong country with a

compassionate culture drawn from a strong Christian belief that children had been committed to institutions, often by the State, or

under the supervision of the State, run by religious orders, then respected and even revered within the broad community and that

some of those children had been subjected to sexual abuse by employees of the institution, and even more shockingly, members of

the religious order, and that many others had experienced severe physical abuse, and still more had experienced neglect and

privation. All of these matters, have come to be referred to compendiously in ordinary speech as “abuse”. These discoveries shocked

a community. There was considerable debate about the extent of such abuse, and the responsibility for it. These revelations emerged

in a 21st century world very far removed from the hard, impoverished but devout 1950s. The Ireland that viewed these matters was

increasingly prosperous, cosmopolitan, and of rapidly decreasing piety, a process that was accelerated by these matters, and by the

broader issues of sexual abuse by priests and other persons who had held respected positions within the community. There was much

debate and argument as to responsibility. But contemporary commentary is not rigorous social history. And there is in any event a

large gap between a generalised picture and the establishment of individual wrong doing for which damages are recoverable at law.

This is particularly so when an incident occurred a long time ago, the alleged perpetrator is either very old or even dead, and the

incident is still genuinely disputed. This becomes more difficult and traumatic when the process of determining such matters occurs in

public which may cause distress to a victim. Therefore, the present day politics of reflecting a national sense of horror and shame

encountered the limitations of individual actions for tort. Accordingly an inquiry process was set up and in parallel a compensation

scheme was established by the Act of 2002.

6 Section 7: a first impression.

The central issue which arises in this case is an interpretation of the terms contained in s.7 of the Act of 2002, which is headed

“Entitlement to award”. In particular s.7(1)(c) provides that an applicant must establish, among a very limited number of other

matters, that “he or she was injured while … resident” in a scheduled institution, and moreover suffered injury that is consistent with

abuse that is alleged to have occurred while so resident. “Resident” in this sentence means resident in an institution for the purposes

of the Act. It is possible indeed to make a first and reasonably accurate attempt at establishing the meaning of s.7(1)(c) and applying

it to the facts of this case from a consideration of the language alone. Returning to the question posed at the outset of this judgment

therefore, the language certainly suggests on first impression that the alleged abuse and the consequent injury must be suffered

while resident in the institution concerned. On the facts asserted here, JGH suffered injury while in the Nursing Home, consistent

indeed with the abuse he alleges to have been committed there. It is however difficult to say that he suffered abuse in the Hospital,

and more difficult and perhaps impossible to say that he was injured there. At first sight therefore his claim does not come within the

statutory scheme. However, the subsection must be understood in the context of the whole section and then placed in the context

of the Act as a whole, and its statutory and factual background. Accordingly it is necessary to consider the detailed provisions of the

Act

7 The Act of 2002

The long title of the Act provides that it is:

“An Act to provide for the making of financial awards to assist in the recovery of certain persons who as children were

resident in certain institutions in the State and who have or have had injuries that are consistent with abuse received

while so resident and for that purpose to establish the Residential Institutions Redress Board to make such awards and to

provide for the review of such awards by the Residential Institutions Review Committee and to provide for related

matters.”

Three things at least might be gleaned from this description. First, and most obviously, that a compensation scheme is being

established which will be administered by a redress board whose decisions and awards may be subject to review by a committee.

Second, that this scheme will extend only to certain persons who were children resident in certain institutions. Awards may not be

made to all residents in a named institution during a certain period. Nor will any scheme extend to persons who suffered injury while in

any institution. The third and important feature is what links those certain children to certain institutions and brings them within the

scheme. That is they have or have had injuries “that are consistent with abuse received while so resident”. The language here is also

notable. The long title does not say (and as we shall see the Act does not say) that awards are payable to persons who were abused

or who suffered injury while resident in institutions. Instead the key feature is to have or have had an injury consistent with abuse.

The threshold for recovery is being very deliberately reduced. It is not necessary to show culpability, responsibility or even causal

connection: it is sufficient to show injuries consistent with abuse.

8 Finally, in relation to the issue which is the subject matter of these proceedings, it can be said of course that this language points

in the direction of recovery based only on abuse received while so resident. If indeed this language was reproduced in the body of the

Act, or if s.7 could be read in such a way that it was not inconsistent with that reading, then it might be possible to conclude that

the only requirement of the Act was that abuse (as broadly defined within the Act) occur within an institution and that it was

irrelevant where the injury was suffered. Indeed, it is common case that recovery may be made for psychological and even physical

sequelae experienced in later life as a consequence of abuse and injury suffered within an institution. If so, and if abuse can be given

a very broad interpretation to cover decisions leading to abuse committed in other locations, then the claimant might succeed.

However, the long title cannot take precedence over the specific provisions of the Act, and as stated, its formulation can perhaps be

most easily understood as reflecting no more than the general view that in most, if not all of the cases, which were in the

contemplation of the drafters and enacters of the legislation, the abuse and injury will both be suffered while resident in an

institution.

9 Section 1 of the Act is the interpretation provision. The first definition is that of abuse. It provides as follows:

“(1) In this Act, unless the context otherwise requires—

“abuse”, in relation to a child, means—

(a) the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child,

(b) the use of the child by a person for sexual arousal or sexual gratification of that person or another person,

(c) failure to care for the child which results in serious impairment of the physical or mental health or development

of the child or serious adverse effects on his or her behaviour or welfare, or

(d) any other act or omission towards the child which results in serious impairment of the physical or mental health

or development of the child or serious adverse effects on his or her behaviour or welfare,

and cognate words shall be construed accordingly;”

10 The first three headings correspond broadly to different types of treatment that could be, and have been, described in ordinary

language as “abuse”. In each case the conduct is directed towards the child and is wrongful. The first covers physical mistreatment

covering intentional assault or conceivably where the injury is caused by negligence. It appears clear however that this category is

limited to physical injury. This is apparent from the language used in subsection (a), but also from the fact that in categories (c) and

(d) specific reference is made to “physical or mental health” while the only injury contemplated under subsection (a) is “physical”.

Subparagraph (b) in turn relates to sexual abuse, and it is noteworthy that the definition is broad enough to extend beyond any

question of sexual assault as commonly understood. It is sufficient that the child is used for sexual gratification even if that did not

involve physical contact. The third category addresses what might be considered neglect in any care regime. There is no question

here of deliberate physical brutality, but rather a failure to care for children resulting in adverse effects on health or behaviour or

welfare.

11 Even if the Nursing Home in the present case was an institution within the Act, the facts do not fit neatly within any of these

three categories. Apart from a few specific instances the thrust of the claim now made is related to an unjustified regime of care by

prolonged bed rest coupled with sedation that separated the child from his family for a significant period and caused long lasting

psychological scars. Attention is focussed in this case therefore on the fourth category. This is, however, not a stand alone category

of abuse setting out some general definition. Instead it must be read as a catchall provision attempting to capture cases which would

be understood as abusive, but which do not fit easily within categories (a), (b) or (c). In that sense it must take some of its colour

from the preceding three categories. That is clear from the words “any other act or omission”. This subsection is clearly related to the

preceding provisions. It is however broad enough to cover the unjustified medical treatment in the Nursing Home, and accordingly

would permit recovery if the Nursing Home was a scheduled institution. On that basis, the applicant would have suffered an injury

while resident in the Nursing Home, consistent with abuse alleged to have occurred there.

12 In this case it is sought to give s.1(1)(d) an even broader interpretation so that it covers the act or decision of transferring the

applicant to the Nursing Home. It is said that that was an “act … towards the child” which “resulted” in serious impairment of the

mental health or development of the child or had serious adverse effects on his behaviour and welfare. It can certainly be argued that

the subsection contains no limitation, and therefore that any act which “results in” harm is covered. If this is so, it has some striking

consequences. First, since this case occurs, rather unusually, in the context of a medical hospital rather than a residential institution,

then it could be said that anything which constituted medical negligence is itself covered by this provision. That would be surprising

since there would be no reason to provide a compensation scheme for only a limited number of hospitals. Strikingly however, on this

reading of the subsection it is not even necessary that the action be negligent: it is sufficient that it results in an impairment of

physical or mental health. Thus, if an operation is carried out in a hospital which carries an acknowledged risk of injury or side effect,

and the operation is carried out without negligence and the side effects occur it could be said to be an “act” resulting in “serious

impairment” to physical or mental health. Again, in the context of this case attention has tended to focus in this Court on the

allegation that the transfer to the Nursing Home resulted in a form of treatment which caused a prolonged and unnecessary rupture of

relations between the child and his family which caused psychological damage and which the Hospital or consultant, ought to have

known was an unnecessary and unjustified form of treatment. However, under the broad reading of s.1(1)(d) it is not necessary that

there should be culpability to come within the subsection. Thus, if the treatment was entirely appropriate but required long term

isolation of a child from his family, with consequent psychological damage, then this could constitute abuse under s.1(1)(d). This type

of prolonged treatment was not unknown in the early or mid part of the 20th century, not just for rheumatic fever, but also for

diseases such as polio or tuberculosis. It is now recognised that such separation from a family at an early age can be psychologically

damaging. On the broad surface interpretation of s.1(1)(d), such treatment, even in accordance with medical practice at the time,

might nevertheless constitute “abuse” for the purpose of the Act. Similarly, in relation to the incidents of physical mistreatment

alleged by the applicant, such as the treatment by nurses and the incident in the sluice room, it would appear that on this reading of

s.1(1)(d) the act of transferring the applicant to the Nursing Home would be an act of “abuse.” This is because it was an act which

resulted in an impairment of the physical and mental health and development of the child, even if at the time there was no way in

which the Hospital could have known that such incidents might occur, and therefore there would be no culpability or blame in normal

terms attaching to the Hospital in carrying out such a transfer in such circumstances. Of course all of this is a consequence of the

inclusion of a small number of hospitals (by my count 10 of almost 130 institutions listed in the Act) in the list of scheduled

institutions. It is not clear that this was thought through. In my view it was probably intended merely that where the type of abuse

which was known to have occurred in residential institutions occurred in one of the named hospitals there should be recovery, rather

than that there was any intention to expand the types of actions that could give rise to a claim. The range of abuse which might

have been contemplated to have taken place in the average institutional home is significantly less than the number of acts which

occur in a hospital which can result in an adverse impact on health. It will be necessary to consider later, and come to a conclusion

on the interpretation which should be given to “abuse” and in particular s.1(1)(d) of the Act.

13 “Injury” is also defined in broad terms as including “physical or psychological injury and injury that has occurred in the past or

currently exists and cognate words shall be construed accordingly”. A “relevant person” is defined as a person referred to in an

application as “having carried out the acts complained of”, and in the case of an institution, being “an institution that is referred to in

an application as being the institution in which the acts complained of in the application were carried out.” The relevant person is a

person who was concerned with the systems of management, administration, operation, supervision, inspection and regulation of such

institution as the institution concerned may determine and specify in writing to the Board.

14 Section 1(2) and s.1(3) provide for two important specific circumstances where the Act is to be given an extended scope. Section

1(2) provides that references to abuse in institutions or which occurred in institutions includes references to any case in which abuse

of a child took place “not in an institution, but while the child was residing or being cared for in an institution and the abuse was

committed or aided, abetted, counselled or procured by, or otherwise contributed to by an act or omission of, a person engaged in

the management, administration, operation, supervision or regulation of the institution or a person otherwise employed in or

associated with the institution”. This appears to refer to abuse off site, (“not in an institution”) but while the child was resident or

being cared for in an institution. Perhaps significantly, it also requires some culpable causal involvement of a person engaged in the

operation of the institution.

15 Section 1(3) provides for an extended application of the Act in the case of a transfer and provides:

“An applicant who was resident in an institution and was transferred from that institution to another place of residence

which carried on the business of a laundry and who suffered abuse while resident in that laundry shall be deemed, at the

time of the abuse, to have been resident in that institution.”

This is the only provision in the Act which explicitly deals with the question of transfer, and appears intended to deal with the

situation of residents, normally girls, who when old enough to leave the institution were in fact transferred from a home to certain

laundries run by religious orders. This was a phenomenon that was well known and controversial at the time of the passage of the

legislation. On its face however, it is difficult to square this provision with the broad interpretation of s.1(1)(d) advanced since if

transfer to an institution in which abuse takes place is itself an act resulting in injury, it would not be necessary to make specific

provisions to bring these cases within the scope of the Act.

16 Section 3 provides for the establishment of the Residential Institutions Redress Board (“the Board”). Pursuant to s.5 the Board is

under a duty to “make awards in accordance with this Act which are fair and reasonable having regard to the unique circumstances of

each applicant”. It is also obliged to ensure that insofar as practical hearings are conducted as informally as possible. Under s.5(3) it

is provided that when considering applications the Board is precluded from either addressing any issue of fault or negligence arising

from evidence given, or making any finding of fault or negligence. This is one of the very distinctive features of the Act, to which it

will be necessary to return.

17 Section 7 is at the heart of the Act and its interpretation is central to this case. It provides as follows:

“(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).”

18 Subsections (a) and (b) are matters of formal proof i.e. identity and residence in an institution as a child. Accordingly it is s.7(1)

(c) which contains the core of the Act. That requires that the child was injured while so resident, and that that injury is consistent

with any “abuse” that is alleged to have occurred while so resident. If this much is established, then the Board is under an obligation

(“shall”) to make an award to that person. Two things may be observed about s.7(1)(c). First, the statutory requirement is injury

while resident and not abuse while resident. Given the fact that each term is specifically defined this is a clear and deliberate

decision. Subsection (c) makes it clear that what is required is proof of injury while resident, and that such injury is consistent with

abuse alleged to have occurred while so resident. It will be necessary to consider in due course why the Act is framed in this way,

but it is unmistakably the structure of the legislation that it focuses on injury which is consistent with abuse alleged rather than

abuse itself. Second, it is not necessary to establish that the injury was caused by the abuse. Instead it is sufficient to establish that

injury is consistent with an allegation of abuse. This is a notably lower requirement than proof of abuse causing injury.

19 Section 7 also contains a number of important additional provisions providing for the interaction of an award or the potential of an

award under the Act with a claim at law. Under s.7(2) a person who has received an award from a court or settled any action arising

out of circumstances which could give rise to an application before the Board is barred from making any application for redress under

the Act. Similarly where a court has made a determination in an action (and presumably has dismissed a claim), that too is a bar to

proceedings. However, s.7(4) provides that the making of an application to the Board does not involve the waiver of any other right

of action. Section 7(5) provides that an applicant is not required to produce any evidence of negligence on the part of a person, or

on the part of any employer. This corresponds with s.5(3) which precludes the Board from addressing any question of negligence.

Section 7(7) exempts from the bar in s.7(3) any determination concerning the Statute of Limitations or any interlocutory matter. It

seems clear, therefore, that only a determination on the merits, and consequently a dismissal of a claim, will be sufficient to act as a

bar under s.7(3).

20 Section 8 provides for an application to be made within 3 years of the establishment day, and for the extension of that period at

the discretion of the Board in exceptional circumstances. Section 9 contains an unusual provision in relation to deceased applicants. A

person who would have qualified as an applicant and had not received an award and who died after the 11th May 1999, before making

an application may nevertheless be the subject matter of a determination, and the children or spouse of that person may apply on

behalf of the deceased person. Similarly, where an applicant dies after making an application the claim may be continued by the

children or spouse.

21 Under s.10 hearings on application will be conducted otherwise than in public. The applicant is required to provide the Board with

evidence under s.10(4) of four specified matters namely, (a) his or her identity, (b) residence at the institution concerned, (c) the

abuse received while so resident, and (d) the injury received as a consequence of such abuse. This mirrors s.7. Again, and consistent

with the rest of the Act, and in particular s.7, s.10 treats abuse and injury as separate matters. Section 10(5) permits an applicant to

provide evidence either orally or by written statement. Under s.10(6) the Board is given power to request “any person to produce to

the Board or to the applicant any document” relating to the matters set out at s.10(5). This seems to permit the Board to direct

institutions or other bodies to produce documentation which may prove identity, residence and conceivably abuse or injury. Section

10(8) permits the Board to request the applicant to provide oral evidence if evidence has been provided by written statement. Such

oral evidence may however only relate to the matters referred to at paragraphs (c) and (d) of s.4, that is abuse and injury. The

scheme involves a threshold which the applicant must surmount. After that the Board may obtain evidence to establish the extent of

the applicant’s claim. At s.10(9) the Board is obliged to make a preliminary decision as to whether the applicant is entitled to an

award and under s.10(10) may make an interim award. Under s.10(11) the Board, where it makes a preliminary decision in favour of an

applicant, may then request advisors appointed by the Board under s.11 with appropriate medical and related expertise to provide a

report on the injuries received by the applicant. Section 10(14) provides that an applicant or a relevant person and any person giving

evidence on behalf of an applicant or relevant person may be asked questions by the Board or by counsel for the Board or by both.

Thus, it is clearly not contemplated that a relevant person (that is the person against whom an allegation is made or a person

designated to deal with the allegation by or on behalf of the institution) may either by himself or herself or through counsel ask any

question of an applicant or a person giving evidence on behalf of an applicant.

22 Section 11 permits the appointment of advisors and counsel who may call expert witnesses as the Board may require. Section

11(8) deals with the question of notification to relevant persons in respect of whom allegations of abuse are made, or representatives

of an institution in which it is alleged abuse and injury occurred. The Board is obliged to take “such reasonable steps as are

necessary” to inform a relevant person of an application in which the person is referred to and they invite that person to provide the

Board with “any evidence in writing concerning such application as a relevant person considers appropriate”. The Board may allow the

relevant person to give oral evidence. Section 11(8)(c) permits the relevant person with the consent of the Board to cross-examine

the applicant, but for the limited purposes of correcting any mistake of fact, defending the relevant person in relation to any

allegation or defamatory or untrue statement, and protecting and vindicating the personal and other rights of the relevant person. An

applicant may in turn cross-examine a relevant person, and the Board may consent to such cross-examination if it considers it

necessary in the interests of justice to do so for any of the purposes so specified. The cross-examination is limited therefore in two

significant respects. First, permission must be sought, and second, both the applicant and the relevant person are limited to cross-

examination in respect of the matters specified in s.11(8)(c)(i) to (iii).

23 These and other provisions in the Act serve to illustrate the significant difference between a claim under the Act and proceedings

in court. Where there is conflict of evidence which the Board cannot resolve the Board is obliged to request the medical and other

advisors to prepare a report. Section 11(12) provides, however, that in the making of an award to an applicant, notwithstanding a

conflict of evidence, an award “shall not constitute a finding of fact relating to fault or negligence on the part of the relevant

person”. The award of the Board is determined by reference to the evidence adduced, the regulations, and the expert reports. Where

it considers it appropriate, the Board may hear oral evidence of the applicant or his or her advisors. The award includes expenses

incurred in making the application and also medical expenses. Section 13(6) provides that where an applicant accepts an award he or

she is obliged to waive any right of action against any public body and any person who has made a contribution under s.23(5), and to

discontinue any such proceedings. Accordingly, acceptance of an award bars a claim against any public body, but only any other

institutions which itself has made a contribution under s.23. Under s.13(10) where an award is not accepted and a claimant elects

instead to commence proceedings, the period during which the application was made and considered by the Board and on review, is

not to be reckoned for the purposes of the Statute of Limitations. Again, s.13(11) provides that an award shall not be construed as a

finding of fact that a person who is referred to in the application has carried out the acts complained of, and s.13(12) provides a

limited bar on proceedings by a person who has received an award.

24 The foregoing provisions concern proceedings before the Redress Board itself. These proceedings however concern the conduct of

the Review Committee established under s.14 of the Act. It is important to note that the committee’s powers are limited. Thus, the

Review Committee shall review the amount of an award submitted under s.13(4)(b) or s.13(13) by the Minister. Thus, the relevant

person cannot seek a review of the amount awarded. Under s.13(9) the Board could decide that the matters specified in s.7(1) had

not been established. In such a case the applicant could submit that decision to the Review Board and it was obliged to review such

decision. This is the only method by which the Board’s decision on entitlement to compensation can be reviewed. Thus it appears that

no person (either the Minister or the relevant person) had a right to ask the Review Committee to review a decision of the Board that

s.7 was satisfied and that the applicant was entitled to an award.

25 An important distinction is made in the Act between a review conducted by the Review Committee of the amount of an award, and

the review of a decision that an applicant is not entitled to an award. This case was treated as an application by the applicant for

review of the amount of an award. The Review Committee was, therefore, limited when reviewing the award to a consideration of the

regulations made by the Minister and the evidence given to the Board. Accordingly s.15(2) applied. The Review Committee was limited

when reviewing an award to regulations made by the Minister (setting out classes of cases and groups of awards), the report referred

to in s.10(12) that is the report of the experts, the medical reports submitted by the applicant, and the evidence given to the Board

by the applicant and by any witness called by the applicant. Thereafter, the Review Committee could uphold the amount of the award

or increase or decrease it. Importantly, therefore, the function of the Review Committee in respect of such an application was a

review of the decision of the Board, by reference to the evidence and material before the Board. In the case of a decision under

s.13(9), that is a decision that the applicant was not entitled to an award, the scope of a review was broader. In such a case, the

Review Committee could review the evidence and hear oral evidence from the applicant and his or her advisor, and hear submissions

on behalf of the applicant and other evidence as it considered appropriate. In the event that the Review Committee made a decision

that the applicant was entitled to an award, the matter was then referred back to the Board, as if the Board had made a preliminary

decision of entitlement under s.10(10). Again, in this respect the power of the Review Committee was limited in that it could not make

its own award. Thus a review of the award was limited to the material before the Board, and a review of entitlement to the award

could only be initiated by the unsuccessful applicant and oral evidence could only be heard from the applicant or his or her advisor. In

a number of important respects, therefore, the review process was subject to significant limitation.

26 Finally there are a number of miscellaneous provisions which are also of interest. Section 16 provides for the making of a general

report on categories of abuse and advice and recommendations in respect of the range of amounts to be paid. Section 17 permits the

Minister to make regulations in respect of such categories. Section 19 makes any statement made inadmissible against that person in

any criminal or civil proceedings. Section 20 permits the Board or Review Committee to require a person to give evidence on oath.

Section 21 also allows the Board to establish procedures to provide for financial assistance to applicants in respect of any award

made. Section 22 makes specific provision in respect of the complicated funding arrangements of the Board. The Board was to be

funded by monies provided by the Oireachtas, and also monies provided by persons who, with the consent of the Minister and the

Minister for Finance, were permitted to make a contribution to awards. In practice this was to cover religious orders administering the

institutions and seeking the benefit of the bar on proceedings created by an award. In such a case, monies provided by such bodies

went only to pay awards made, whereas the general monies voted by the Oireachtas could also be used to defray the costs of the

Board and the administration of the Act. The purpose of s.23(5) was it appears to permit persons or institutions scheduled in the Act

to make contributions to the Compensation Scheme, and in return become entitled to the waiver by a successful applicant under

s.13(6) of any cause of action, and the bar on such an action contained in s.13(12). Section 24 provides that where an award is

made and accepted there can be no claim for indemnity or contribution against the State or a public body arising out of the same or

substantially the same matters. Section 28 contains significant provisions on the prohibition of disclosure of information. The Board is

only entitled to keep a record of the name, address and date of birth of an applicant, the name of an institution concerned, the

period in which the applicant was resident in the institution and the amount awarded. Under s.28(6) there is a prohibition on

publication of any information concerning an application for an award under this Act which could reasonably lead to the identification

of any person including the applicant, a relevant person, or an institution referred to in an application made under the Act. Section 30

disapplies the Data Protection Act, and s.31 limits the application of the Freedom of Information Act. Finally, s.32 amends the Act of

2000. That Act was the Commission to Inquire into Child Abuse Act 2000, which established a commission to enquire generally into

allegations of abuse of children in residential institutions. That Act established two forms of inquiry: one in which there was a full

adversarial hearing in relation to the allegations of abuse, and a second in which residents of institutions were permitted to give

evidence in general as to their experience without the necessity of an inter partes adversarial hearing. After certain consequences

and provisions the Act sets out a list of almost 130 institutions. Under s.1(1) institution is defined as meaning an institution specified

in the schedule.

27 Observations on the Scheme of the Act

It would be apparent to an observer broadly familiar with the common law system of compensation for injury that the Act is a very

specific provision tailored to particular circumstances which existed in Ireland at the turn of the millennium. It is not unusual

unfortunately, in the common law world, that a large number of people may be injured because of either a single event, or incident, or

because they have been the subject of a persistent practice. In such cases, the question of compensation will often arise. The

private law system of recovery of damages in tort will sometimes be the vehicle for determining such matters, particularly where only

private parties are involved. But often where the claims are directed against or may involve State parties there is an incentive to look

elsewhere. Private law tort claims can be cumbersome, inefficient and costly. Each case is treated as an individual claim with a full

entitlement to expert evidence, often detailed medical evidence, and legal representation, all of which inevitably adds to the cost of

assessing and delivering compensation, and the difficulty of establishing an entitlement to it. Often such claims face difficulties of

proof or other legal hurdles. From the prospective defendant’s point of view, the extent of such claims might, if conceded, be ruinous

or if State parties are involved, cause an enormous drain on budgetary resources. It is to be expected, therefore, that such claims

will be strenuously defended and at significant cost. Faced with these difficulties, it is not uncommon for compensation schemes to be

established which provide for a streamlined and, it is hoped, a more sensitive, speedy, and cost efficient system of dealing with such

claims. However, such schemes depend upon a comprehensive uptake by claimants. If some claimants persist in private litigation,

then the outcome of such litigation can easily destabilise a scheme. If an award made in court is higher or dramatically lower than the

Scheme routinely provides, or if findings are made which reflect on liability, the Scheme may not have the comprehensive uptake

which will make it attractive to participants. In some countries it is possible of course simply to convert all private causes of action to

be dealt with under a compensation scheme. Other countries, including Ireland, however, recognise a constitutional right to litigate

claims, and accordingly, any compensation scheme must seek to encourage potential participants, and in particular claimants, to

voluntarily adopt the scheme.

28 A common law visitor to Ireland familiar with such matters, therefore, would immediately recognise that the Act establishes a

compensation scheme and contains a number of elements designed to attract claimants to ensure the vast majority of claimants

process their claims through the scheme. First, and most obviously, since most of the events contemplated will have taken place

some many years ago, the fact that such a claim can be maintained within 3 years of the passage of the Act, and without reference

to the provisions of the Statute of Limitations, is a substantial, and perhaps, critical attraction for claimants. Proceedings are

streamlined. They are heard in private by informal procedures on limited evidence, including only written evidence, and without the

persistence presence of a well resourced defendant to challenge evidence in relation to the claim, or in relation to the extent of

injuries or the quantum of compensation. Cross-examination is limited. In circumstances where the subject matter of the allegations

are traumatic, these procedures may be particularly attractive to claimants. The fact that the Scheme concerns abuse which may be

deeply upsetting to revisit is reflected in the sensitive procedures established and the high importance placed on confidentiality. All of

these features of the Scheme - confidentiality, simplicity, low threshold of proof, assistance by the Board in making a claim - might all

be readily understood to be directed towards facilitating claimants.

29 However, there are a number of additional and unusual features in this Scheme which cannot be explained by a desire to

encourage claimants to participate in the scheme. For example, the prohibition contained in s.5(3)(a), and reinforced in subsection

(b), in relation to issues, evidence or findings concerning fault; the requirement that, in addition to proof of residency and injury,

there is an establishment that such injury is consistent with abuse; the provision for relevant persons or institutions to cross-examine

for the purposes identified in s.11(8)(c); the statutory restriction on the interpretation of the awards as a finding of fault (s.11(11));

and finally, the specific prohibition in s.11(13) that an award is not to be interpreted as a finding that a person carried out the acts

alleged cannot be explained as being features designed to attract applicants. An observer might note these matters, and perhaps be

able to speculate as to the objective of such provisions, and the reasons why they were included. Once again a person familiar with

recent events in Ireland, and in particular the progress of the Commission of Inquiry under the 2000 Act, which was stalled pending

the enactment of the Compensation Scheme, would have little difficulty in explaining the provisions. The Act, in addition to providing

compensation to claimants, was also designed to encourage institutions to participate, and indeed to contribute to it. At a general

level it might be said that the scheme had attractions for such institutions because it would bring some resolution to a difficult and

damaging episode for institutions, particularly where such institutions were run by surviving members of a religious order. At a more

pragmatic level, a scheme offers the prospect of avoiding years, and indeed decades, of damaging and expensive litigation. But the

Act is clearly a balancing act designed to attract both claimants and putative respondents. If the scheme involved direct finding of

fault on the part of individuals or institutions, then such institutions might consider themselves duty bound, or perhaps that it was

simply in their interest, to defend themselves and their members from those allegations. The concerns, therefore, of all potential

stakeholders, and the tenuous compromise effected between all interests, are discernible in the provisions of the Act of 2002.

30 Section 7 reconsidered.

Returning to s.7 therefore, it is now possible to read it against the background of the Act as a whole. It is clear that the section is

key to recovery since it sets out the only matters which a claimant must establish in order to obtain an award. Those matters are to

be established by proceedings which are informal and where there is only limited provision for the testing of evidence by the Board

(and still less on review of an award) or by any other interested party. As such it seems clear therefore that injury while resident in

an institution is an essential component of the scheme, and furthermore, that such injury is to be distinguished from abuse. A

different scheme might have provided compensation for anyone resident in indentified institutions within a certain time period or

conversely might have required proof of actual abuse on the balance of probabilities. However, this Scheme, quite deliberately took a

middle course and required proof of injury while resident in an institution that was consistent with an allegation of abuse. It is not,

therefore, that this scheme considers injury while resident in an institution as an intrinsically important matter, but rather that it was

a component in the balance which was sought to be achieved by the Act, and consequently the scheme. If proof of abuse while in an

institution was the essential criterion for compensation then persons in institutions may have felt duty bound to defend such

allegations, and would have a strong argument to be entitled to do so by reference to the full adversarial procedures permitted when

serious allegations are made reflecting on reputation. But if that procedure was adopted the scheme would have been correspondingly

less attractive to claimants and less likely to succeed. Proof of injury in an institution (as distinguished from abuse in an institution) is

therefore a central feature of the scheme.

31 The factual background to this case

It is difficult, and perhaps somewhat misleading, to set out certain matters as “facts” in this case. The papers are difficult to follow,

and perhaps more importantly, the nature of the proceedings before the Board and the Committee are such as to not produce any

findings of fact. In addition, the judicial review proceedings are meant to be focussed on issues of law rather than contested issues of

fact. It is perhaps better to outline, therefore, the development of the claim and the progress of these proceedings.

32 On the 9th of December 2005, and therefore six days before the expiry of the original three year period before making an

application to the Redress Board, the applicant JGH submitted an application for redress. It appears that the application was

completed by his sister OH with whom he now lives in the family home in Dublin. The institutions identified were both the Hospital and

the Nursing Home. It seems clear that both the applicant and his sister were initially under the impression that it was possible to

recover compensation in respect of abuse committed in the Nursing Home, and the complaint essentially was directed towards what

was alleged to have occurred while he was a resident there. It was said that the applicant who was admitted to the Hospital, “was

sent” to the Nursing Home when only two years of age and resided there for an extended period between 1962 and 1965, with some

breaks. The form also recounted incidents of alleged force feeding, of being made to walk by nurses who held him tightly between

their legs, of being required to give back a toy to which he had become attached to, of not even being allowed out of bed to attend

a carnival which came to the grounds, and most seriously, that he had been taken through the sluice room and dangled from a

window by his legs. Given his age at the time he could not identify any of the nurses involved. It was also said that he suffered from

obsessive compulsive disorder, although this has not subsequently been referred to; that he had difficulties in education and had

suffered emotional deprivation by being removed from his family at such a young age.

33 The application, once made, was not advanced with any urgency. It seems clear that the Board and staff took a view, and

communicated to JGH and his sister, that the Nursing Home was not as such a scheduled institution and compensation was not

recoverable in respect of conduct occurring there. The Board also made considerable attempts to have the applicant clarify any claim

that was made in respect of the Hospital. The Board also exercised its power to seek documentation. It transpired that the Hospital’s

records had been transferred when the Hospital was amalgamated, and were no longer available within the amalgamated institution

and probably had been destroyed in the normal course. Somewhat ironically in the light of what subsequently transpired, the bulk of

the information which was available was obtained from the Nursing Home which supplied it on the basis that it was not an institution

within the meaning of the Act, but in order to assist the Board in its enquiries. In addition to some very detailed charts tracking the

sad treatment of a young child meticulously measuring pulse, breathing, temperature on a daily basis, for the weeks and years that he

was resident in the Nursing Home, the documentation also showed that he had been admitted in August 1962. The documentation

also included some documentation from the Hospital. There was a handwritten note on hospital notepaper recording an admission in

August 1964, and a typewritten note by the consultant Dr LW which recorded his condition, and that he had been discharged to the

Nursing Home in October 1964. It also recorded indirectly that he had been admitted to the Nursing Home in August 1962, and had

been discharged in March 1964, before being readmitted.

34 A limited amount of other documentation was submitted by the applicant. A handwritten note from a general practitioner dated the

13th of May 2009, recorded that he had attended the surgery suffering from chronic nervous debility, and mood disorder, and that he

said that it was related to abuse while living in the Nursing Home. There was also a note from his GP in 2002 referring the applicant for

treatment, recording that he was very stressed as the result of a family dispute in respect of his mother’s will. There was also a

detailed note from St James’ Hospital in December 2002, which contained a description of his original admission to the Nursing Home in

his own words: “They came for me at night in an ambulance”. This vivid description was repeated at other points in the papers. The

note also recorded that he had been bullied at school, and other incidents during a troubled childhood.

35 All this information was referred to the expert appointed by the Board. This case shows the benefits of that procedure. Her report

recorded admission to the Hospital in August 1964 and noted that it had been stated that he had been admitted to the Hospital for

circumcision in either 1961 or 1962. The report referred to a psychiatric assessment in 2002 in connection with stress following a

family dispute continued: “Hospital notes at that time [2002] refer to adverse factors in his childhood including illness and time in care

return home aged five not knowing his father and siblings, death of his father, difficult time at school including physical bullying by a

teacher and subsequent school absence. Diagnosis was of emotional problems including low self-esteem. He was not seen, at that

time, as clinically depressed”. The report concluded: “unable to comment except to state in general terms that abuse suffered in

childhood is indeed likely to contribute to adulthood difficulties”.

36 The information available to the Board was accordingly extremely limited. During this time, the Hospital informed the Board that in

the light of what appeared to be said, that no allegation was made against the Hospital, and it was not proposing to take part in the

proceedings. The Board attempted to schedule hearings to bring the matter to a conclusion. The applicant gave evidence suggesting

at one point that some of the matters he had described, and in particular the incident of nurses pushing him between their legs and

forcing him to walk, occurred not in the Nursing Home but in the Hospital. He also gave evidence of rough treatment administered to

him in the Hospital when he was admitted for appendicitis in 1968.

37 The Board delivered a written determination which was sympathetic and comprehensive. It stated that notwithstanding the low

standard of proof required, it could not satisfactorily conclude that the abuse alleged in relation to the Hospital had occurred there,

at least in respect of the incident with the nurses, because the applicant had previously given a clear account of it occurring in the

Nursing Home. It also considered it could not deal with matters which occurred in the Nursing Home since it was not a scheduled

institution. However, the Board was prepared to accept that there had been incidents of harsh treatment within the Hospital which

could come within the definition of abuse. It also considered the question of psycho social sequelae as follows:

“The Board has already referred to difficulties in the applicant’s life in the proceeding heading. It is clearly the case that

the Applicant suffered the death of his father when he was only eight years of age and he has described wandering the

streets looking for him after he died. He appears to have been a much younger child than his siblings and it would appear

that his mother had a history of bi-polar affective disorder. It is not clear from the records as to how much his mother’s

illness impacted on family life. He also described being subjected to physical and emotional abuse by a teacher at school

and he describes how, when his mother could not manage him, he was sent to relations which he describes as being

“abandoned again”. In later life he was subjected to an attack with an iron bar by a man in a betting shop. He is a single

man with a somewhat solitary lifestyle. He has low self esteem. He has difficulties trusting people. The records state that

he presented with difficulties at his General Practitioner’s surgery as a result of difficulties in relation to his mother’s will.

It is very clearly the case that the genesis of the Applicant’s psycho-social makeup is multi-factorial.”

38 In the light of this evidence, the Board accepted that he suffered a limited maladjustment as a result of the limited abuse he

experienced as discussed above. The Board allowed two points in respect of the abuse, and one point for the psycho social sequelae

which resulted in a total of three points on the Board’s scale, and an award of €6,000.

39 The applicant sought a review of the award. As set out earlier, there is only a limited scope for such review. However, when the

case came before the Review Committee, the Committee of its own motion raised the question of whether it was possible that the

decision to transfer the applicant from the Hospital to the Nursing Home could be said to be abuse committed by the Hospital. This

was set out in the report of the Committee as follows:

“When the matter came before the Committee on the 30th of September 2011 the chairman … advised the applicant’s

counsel that if the applicant had been transferred from the institution to [the Hospital] on the basis of a misdiagnosis it

could be argued the transfer of the applicant to [the Nursing Home] was an abuse within the meaning of the Act. The

chairman stated the members of the Committee were unable to interpret the medical records which had been submitted to

the Board by the applicant. The chairman stated that notwithstanding the fact that the Committee could not hear new

evidence the Committee was entitled to direct that the reports be reviewed by a medical expert who could advise the

Committee of the import of the records and could advise by reference to the medical records whether or not the applicant

should have been transferred by the institution to [the Nursing Home] and kept in bed for such a lengthy period of time.

The chairman requested the applicant’s solicitor to instruct a medical expert who was familiar with the standard of medical

practice at the time.”

The hearing was adjourned, and only recommenced after a further lengthy delay. The Committee sat again on the 26th of July 2013.

40 Before considering the decision of the Review Committee it is worth noting at this point that the course taken here was at least

legally dubious, though once again clearly well intentioned. As I read the Act the review of an award is limited to the material that

was before the Board. There is no power to direct an expert report. The only expert report under the Scheme which can be supplied

is that by the expert appointed by the Board. Neither the applicant, nor the Committee can supply an expert report, and indeed one

had already been provided. Apart from these procedural and legal issues that might arise from this course, there was further real and

practical difficulty with the course the Committee took. In effect, the Review Committee was about to consider for the first time an

allegation of abuse by reason of transfer from the Hospital to the Nursing Home in circumstances where neither the Hospital nor the

Nursing Home had been notified of that possibility, and where information in relation to this new hypothesis had never been sought

from either body.

41 The consultant paediatrician retained by the applicant’s solicitor produced a detailed and fascinating report. He was able to

unearth considerable periodical literature on the practice of bed rest for rheumatic fever. He was also able to express the view that

by 1962 the regime followed in the Nursing Home of extensive bed rest was heterodox. Indeed, he expressed the opinion that it

“represented unacceptable management that would not have been condoned by any responsible paediatrician or paediatric

cardiologist at the time”. Furthermore, the consultant paediatrician considered it unlikely that the symptoms exhibited by JGH on

admission amounted to rheumatic fever, although the consultant doctor LW had made such a diagnosis and had identified symptoms

which might justify it, and expressed himself as uncertain that “Dr LW had actually examined JGH herself”.

42 The consultant’s report also produced a useful and insightful article by a distinguished former paediatrician in Ireland, Dr Conor

Ward, which gave a detailed and disturbing account of the history of the Nursing Home. Briefly, it appears Dr LW, a consultant to the

Hospital, had been appointed director of the Nursing Home which was established at the instigation of the then Archbishop of Dublin,

with a view to caring for children with rheumatic fever. A French order of nuns were invited to staff the Nursing Home under the

direction of Dr LW. It is Dr LW who prescribed the treatment of lengthy bed rest. Although a consultant to the Hospital, it does not

appear that she had particular experience or distinction. She became something of an academic recluse; she did not attend

conferences, or produce research papers. Nevertheless she remained in place for a considerable time, and practiced until her mid 70s.

43 A vivid account of treatment in the Nursing Home is contained in documentation, submitted by the applicant, which contains

promotional literature in respect of the Nursing Home which makes disturbing reading in the light of the information now available. It

stated that:

“Rheumatic infection is, as a rule, a long term illness enduring for months or years, and calling for the most careful nursing

and unremitting attention.

Even in the less manifest or latent forms of the infection, heart complications frequently occur which may leave the little

patient a cardiac cripple for life unless the greatest care is exercised. In the face of all these problems let us see how

things are managed at [the Nursing Home].

An essential part of the medical treatment is the necessity for prolonged rest which demands a certain amount of

discipline. Such restrictions of activities are easily borne when approached in the right way and mingled with the milk of

human kindness. In this respect [the nuns] are preeminent, in accordance with their vocation and long traditions.

As has already been stated the treatment of rheumatic infection is a lengthy business. It is no easy matter to keep a

child contented in bed for a long time although this is the foundation-stone of treatment. … As the little patients progress

by gradual stages towards recovery they are allowed up for stated intervals during the day and there is often a certain

amount of pleading for these concessions. The children have themselves, coined a phrase and frequently asked “to be

given a step”. It is hard to resist the pleadings of a child, but somehow the withholding of consent does not give rise to

much disappointment.”

44 Eventually, as is recorded in Professor Ward’s paper, some GPs became concerned that children were being detained in the Hospital

unnecessarily, that children were being diagnosed wrongly on the basis of symptoms which did not justify such a diagnosis, and once

so diagnosed that they were submitted to a regime that was unjustified. The impact on young children separated from their family

was significant, and some suffered psychological damage. Children were withdrawn from the Nursing Home and eventually the Nursing

Home was closed. The consultant paediatrician retained by the applicant’s solicitor expressed his view that it was probably the case

that JGH did not in fact have rheumatic fever at all, and that the symptoms recorded were of normal childhood conditions.

45 All this information provides a compelling and tragic story and represents a salutary piece of medical and social history. If these

matters were established by evidence to the requisite standard, and if proceedings had been commenced within the limitation period,

then unless convincingly contradicted, they might well establish a claim against the Nursing Home, and if that was an institution

capable of being sued, and still having assets, damages might be recoverable. Again, if it could be established that the consultant Dr

LW while in the Hospital and acting on behalf of the Hospital referred patients to the Nursing Home, the Hospital might have a liability

if it was established that the Hospital and/or its staff knew or ought to have known that the treatment in the Nursing Home was not

medically justified. Alternatively, if these matters had emerged in a different way, it might lead to a demand for compensation for

everyone treated in the Nursing Home, whether they were referred to it through the Hospital or any other institution or simply

attended there. However, these issues do not arise in the present proceedings. The only question is whether the award made by the

Review Committee in favour of the applicant was bad in law or in excess of its jurisdiction, as the applicant now contends.

46 The decision of the Review Committee

The Review Committee considered that the transfer to the Nursing Home amounted to abuse within s.1(1)(d) of the Act. Accordingly,

it increased the abuse finding from two to seven points. It also considered the question of medically established physical or

psychiatric injury and in that regard considered the report of the GP, and awarded a further five points under this heading. Finally, it

considered psycho-social sequelae. It adopted the view of the Board, that the applicant’s condition was multifactorial having regard

to his troubled childhood. However, it increased the award under this heading also. In total this meant an award of €34,000.

47 On its face this was a substantial success for the applicant and a vindication for the application for review. Nevertheless the

applicant’s solicitor considered that she was not able to advise the applicant whether or not to accept the award. This was

somewhat surprising since there was in truth no viable alternative. If the award was not accepted, the applicant’s only remedy was

litigation, which by 2013, was a very unlikely prospect. Even if desired to argue that the award should have been higher it may have

been possible to accept it under protest. However, the applicant did not accept the award and instead commenced judicial review

proceedings of the Committee’s decision.

48 The judicial review proceedings

An application for judicial review involves a contention that there has been some substantial illegality in a process, and/or some

excess of jurisdiction. Here, the claim made was very broad. It was contended that the Committee had “erred in fact and in law” in

awarding the applicant €34,000. This is a very general and unilluminating statement. The thrust of the applicant’s complaint appeared

to be that having determined that transfer from the Hospital to the Nursing Home was abuse under s.1(1)(d) the Committee was

wrong to award only €34,000. It was contended that the Committee had failed to have regard to or consider the abuse suffered in

the Nursing Home. There was to be a degree of confusion on this issue, because later in supplemental affidavits both the solicitor and

the applicant maintained, however, that the Committee had not said that it had had no regard to the abuse in the Nursing Home. On

the other hand, the matter was further compounded by the legal position taken by the Committee in defence of the judicial review

proceedings which was to plead, among other things, that the Committee had had no power to make any award in respect of abuse

at the Nursing Home since it was not a scheduled institution. It may be noted from the terms of the Committee’s determination that it

did not say this in express terms in its determination. Nevertheless the case has proceeded on this basis, although I am bound to say

it is not at all clear to me that the Committee did not make an award in respect of that abuse. The information before the Committee

in relation to any injury to the plaintiff and any psychosocial sequelae was very sparse indeed at that time. There was no report from

a consultant psychiatrist and no contemporaneous account of any psychiatric treatment. The Committee quoted with approval the

Board’s conclusion that the applicant’s condition was multifactorial and made specific reference to difficulties encountered in childhood

and the applicant’s mother’s mental illness and the death of his father. It is not clear to me, therefore, that the Committee excluded

the events in the Nursing Home from its award but rather, on the very limited evidence available considered that there was a number

of factors which led to the applicant’s present condition, only one of which was the consequence of transfer to the Nursing Home.

49 These matters became further confused because the applicant then produced and sought to rely on what had been lacking up

until then: a detailed and comprehensive report from a consultant psychiatrist. However, this was produced after an interview with

the applicant conducted on the 6th of November 2013, long after the Committee had made its decision and communicated it to the

applicant. It had never been before the committee. It should be said that the report did appear to trace the applicant’s present

difficulties to the separation from his family and childhood as a result of admission to the Nursing Home. This evidence however simply

cannot be relevant to the question of whether the Committee acted in excess of jurisdiction when it made the decision it did on the

evidence before it, but it has tended to colour the subsequent proceedings.

50 The High Court quashed the decision of the Committee. Kearns P stated that the Committee took the view that they “would not

have regard to the sequelae that eventuated in the Nursing Home … and considered only the events which occurred in the Hospital”.

For reasons set out above I do not think that anything in the Committee’s decision makes it clear that it has adopted this approach.

However, he described the Committee’s approach that transfer amounted to abuse as a “well intentioned fudge”. He expressed

difficulty in understanding how a transfer on its own could be regarded as something capable of attracting compensation. However he

said that he had to address the question “is the connection between the wrongful act and its sequelae severed in this case by the

express terminology of the Act in such a way as to foreclose on the particular applicant and confine him to such rights as he may

have whilst a patient in [the Hospital]? He considered that the applicant had been abused within the meaning of s.1(1)(c) and s.1(1)

(d). Significantly he commented that had the admission to the Nursing Home been a direct admission by a GP referral or something of

that nature he would have upheld the Committee’s decision without hesitation. The High Court accordingly quashed the award and

remitted the matter to the Review Committee for further consideration.

51 The Committee appealed to the Court of Appeal. That court unanimously overturned the decision of the High Court. Judgment was

delivered by Kelly P and Hogan J. Both judges expressed very considerable sympathy for the applicant but considered that the

structure of the scheme was such that the abuse in the Nursing Home was not covered by it, and was the result of a clear policy

decision made by the Oireachtas, and which it was for the Oireachtas to address.

52 The applicant sought and obtained leave to appeal to this Court. The Court granted leave on the following issues:

(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 principles of negligence including the principle of foreseeability having regard to subparagraph

(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 injury to, the child”, and subparagraph (b) “the prohibition on addressing or making findings

relating to any issue relating of fault or negligence in s.5 of the Act?”

53 In addition to the foregoing, there has however been a further exchange of correspondence making allegations about the hearing

of the appeal, the conduct of the judges, and further complaints about the conduct of the respondent Committee, and its counsel,

and an attempt to submit further evidence in relation to the structure of the Nursing Home and its funding to suggest that the

Nursing Home was supported by the State. I consider that much, if not all, of these matters are not merely irrelevant but also

regrettable, and have served only to confuse the issue and distract from the issue of law which the Court is required to decide. I

have sought so far as possible to put these matters out of my mind. However, it is only right to record that in pursuing this matter,

and in particular in securing the detailed report of both the consultant paediatrician and the consultant psychiatrist, the applicant’s

solicitor has also done admirable work on behalf of her client in this very sad case.

54 I do not propose to extend the length of this judgment by further debating the issues advanced by both parties, and contained in

the different judgments already delivered. To some extent I consider that the issue has grown layers of confusion through the various

different arguments and analyses proffered. Fundamentally, the question for the Court is one of statutory interpretation. I propose,

therefore, to set out my interpretation of the Act, the reasons for it, and then to address the specific issues which arise in this case.

55 The first issue is whether, on the assumption that abuse occurs in an institution or place which is not a residential institution

scheduled for the purposes of the Act, is the transfer of a child by a scheduled residential institution to a place or body where such

abuse occurs capable of constituting abuse within s.1(1)(d) of the Act? On this approach the abuse which occurs off site, as it were,

is direct abuse, whether assault, sexual abuse, or neglect, but what is contemplated here, is indirect abuse, that is an act, itself

neutral, of transfer or release to an institution which is followed by, and therefore can be said to result in, direct abuse there, and

consequently harm to a victim. For the purposes of this judgment I will call this indirect abuse, or chain of causation abuse, that is it

is something which is alleged to be abuse because it leads to direct abuse. If this is so, then there will be two acts of abuse, (and

two abusers), one, the off site institution school or person who commits the direct abuse, and the other, the transferring institution.

However, on this hypothesis, compensation would be payable under the Scheme only in respect of the act of transfer by the

scheduled institution. This type of overlapping multiple liabilities on different bases is of course something which can arise in cases in

civil claims for damages. A plaintiff may sue one or more defendants in a tort action for a deliberate act, such as assault, and sue

another defendant in negligence for permitting the plaintiff to be exposed to the risk of that assault. Such a claim may involve

different allegations of wrongdoings against different parties. Conceptually this is possible in proceedings at law. The question is

whether the Act contemplates and makes provision for a claim compensation for the same injury caused it is said by different acts,

and actors.

56 As already discussed, I accept that taken in isolation and on their face the language used in s.1(1)(d) is broad enough to cover

such indirect non culpable chain of causation responsibility. However, on balance I have come to the conclusion that the words

should be given a narrower interpretation, and be limited as subsections (a), (b) and (c) are to acts which are both direct and

culpable. In brief my reasons are as follows:

(i) The Act does not say explicitly, or by implication, that there can be liability for transfer by a scheduled institution to a

person or other institution, non-scheduled, where abuse takes place.

(ii) Section 1(1)(d) is not a stand alone or general definition of abuse. Instead it is the fourth in a series of specific

classes of abuse, and must take its colour and scope from the first three subsections. Subsections (a), (b) and (c) define

recognisable acts of direct abuse within an institution. I consider the structure of the Act therefore suggests that s.1(1)

(d) was designed to capture other similar examples rather than to set out a general definition which would substantially

widen the potential scope of the Act, and at the same time render the first three subparagraphs redundant.

(iii) An interpretation which would capture transfer would of necessity be extremely wide in its scope. On this

interpretation there would be no requirement of culpability. Even an entirely innocent transfer, where at the time there

could have been no knowledge or apprehension of a risk of abuse, would be captured. This would extend the scope of the

Act quite dramatically, and lead to compensation for acts in the present case. For example, it would mean that residents

of the Nursing Home who happened to be referred there by an intern in the scheduled Hospital could recover for injury

perpetrated in the Nursing Home, but could not if referred by a general practitioner. At the same time, the inclusion or

exclusion of claims would depend on somewhat arbitrary matters. Nothing in the structure of the Act suggests an

intention to include within the scope of compensation abuse occurring in non-scheduled institutions in general. There is

even less statutory justification for the necessarily arbitrary distinction which the applicant must contend for.

(iv) The Act is very clearly and specifically directed towards scheduled residential institutions. These are, however, not

the only locations where abuse in the classic sense occurred or was initiated. In particular, there are documented

examples of abuse occurring in schools and by teachers. These however were clearly not covered by the Act, by a very

deliberate policy decision. That focus is a reason not to extend the scope of the Act beyond direct abuse occurring in

specific residential institutions.

(v) Where the law of tort does permit overlapping and multiple liability, it recognises that responsibility between

wrongdoers may be very different, and provides an elaborate and complex mechanism for the apportionment of liability

between different wrongdoers, and the recovery in accordance with such an apportionment of damages paid by one

defendant, and also rules preventing double recovery by the plaintiff. If however this Act contemplates multiple different

abusers responsible for the same abuse, then it would be expected that these issues would also be addressed and

provision made. In a case such as the present for example, it might be expected that if the Act intended that an

institution, (and therefore the Scheme), could have a liability for abuse perpetrated by others, that the Scheme would be

entitled to seek to recoup some if not indeed all of the damages from that wrongdoer. However the Act does not do so,

or appear to contemplate the possibility. If the applicant is correct, and entitled to full compensation through the Scheme

because of the fact of transfer from the Hospital, then it would appear to also that the applicant could recover separate

damages against the Nursing Home if it was possible to maintain a claim at this stage and would not have to account to

either the Nursing Home or the Scheme for such double recovery Certainly there would be no statutory provision barring

such a claim in the same way as a claim against the Hospital would be precluded.

(vi) It is also noteworthy that the Act makes specific provisions for at least two cases of what might be described as off

site abuse which it would appear would not be necessary if indeed the broad interpretation of s.1(1)(d) was that

intended. Thus s.1(2) contemplates abuse which occurs “not in an institution” but where it is carried out aided or abetted

by a person involved in the management of the institution. It is clear that some degree of culpability is required before an

institution can be responsible for abuse which occurs outside the institution. It seems to follow from the fact that specific

provision is made by s.1(2) that such abuse is not otherwise covered. Similarly s.1(3) provides for a specific liability in the

case of transfer, but only where a person is transferred from the institution to a laundry, and is abused there. Again, this

specific provision would not appear necessary if the broad interpretation is correct. Furthermore, s.1(3) operates as a

deeming provision. It treats abuse in a laundry, as if it occurred in the institution. This also reinforces the approach that

direct abuse within the scheduled institution is regarded as central to recovery under the Act..

(vii) Finally, and I recognise that this overlaps somewhat with the next issue, the broad interpretation would appear

impossible to reconcile with the clear terms of s.7 of the Act, which is the central provision providing for recovery. If

transfer from an institution is capable of constituting abuse, then it is difficult to understand why the Act requires that

injury be suffered “while … in the institution”, and still less why that should be the essential test for recovery. Once injury

within the institution is established, this seems to make it clear that residence, either actual or deemed, is crucial to the

scheme envisaged by the Act which is that abuse and injury both occur at the time while resident. Accordingly, the broad

interpretation of s.1(1)(d) where transfer to a place or institution or person where direct abuse takes place, is treated

itself as abuse, would not seem to be correct. However I recognise that this argument was not pursued in any detail in

the case and would not therefore rest my decision on it.

57 Even if however the broader definition of abuse is adopted, that in itself does not give rise to an entitlement to compensation.

That instead is determined by s.7 which, as already noted, makes injury while resident consistent with abuse the test for recovery.

For reasons already addressed, this appears to be a very deliberately and carefully drafted provision. It is very unlikely that a

situation such as the present was considered at the time of drafting. It is clear that the Act contemplates everything occurring within

the scheduled institution, but that in ease of both applicants and relevant parties, the claimant is not required to prove abuse itself.

Once injury within the institution is established, it is possible to recover compensation for all the consequences wherever they occur:

it is sufficient that injury occur while resident in the institution. But this means that injury while resident is critical. It is argued

however that some artificial meaning should be given to s.7 to avoid giving effect to what appears to be the plain words. But this

cannot be permissible. The argument that s.1(1)(d) must be interpreted to include transfers requires that the fullest effect must be

given to the literal words contained in that section. It cannot be permissible then to change gear and refuse to adopt what is if

anything the plainer meaning of s.7.

58 Contrary arguments

I am aware that the conclusion I have arrived at differs from that which was come to by the majority of the Court. I hope to explain

briefly, why respecting as I do the conclusion the Court has come to, and the motivations for it, I cannot agree. There are I think a

number of arguments deployed in favour of allowing this appeal. Most rely to some extent on the apparent illogicality of finding that

transfer to an institution where abuse takes place is capable of being abuse, but at the same time holding that compensation for the

abuse by transfer, cannot include the impact of the abuse which occurred in the institution. The first version is reflected in the High

Court judgment and therefore in the first certified issue which refers to the concept of foreseeability. This argument is as I

understand it that if the proceedings under the Act are viewed by analogy with a familiar claim in tort for personal injuries, then once

liability is established (in this case once it is established that an act of transfer can be abuse), then all the damage which is

reasonably foreseeable and flows from that wrong would be recoverable. If this case were viewed therefore as a negligence claim,

then an applicant who succeeded in establishing that the transfer was wrongful and negligent, ought to be able to recover for the

consequences of that transfer which naturally would include all the psychological harm suffered by the plaintiff by reason of the

treatment and in particular separation from his parents, that the treatment in the Nursing Home occasioned.

59 That argument is I think a form of legal heuristic, that is reasoning by a shortcut. Such shortcuts are often very useful: where a

case involves a car colliding with another on the incorrect side of the road, it is no longer necessary to go back to basic principles of

negligence to explain the liability of the driver. But the use of such shortcuts depend upon the longer route having been mapped and

everyone being satisfied that the shortcut will always and necessarily bring the traveller to the correct destination. Here, it is simply

not possible to treat this claim as a hybrid between a statutory claim and a tort action, where it is permissible to mix and match

concepts from the law of tort with the scheme to overcome difficulties in a particular case. The common law is of course the

background against which the statute must be interpreted. It is precisely because the common law did not appear to provide a

satisfactory method of permitting claims to be addressed, that the statute was enacted. It was however not a simple amendment of

some particular area of the law of tort or adaption of procedure for the brining of such claims. Instead a separate scheme was

established. Not only can the scheme not be viewed as analogous to a tort claim so that concepts can be borrowed and used

interchangeably, it is probably true to say that the statutory scheme is designed to be different in almost every material respect from

a private law action for damages. A claim for damages in tort involves a claim between private parties resolved after adversarial

contest in public before an independent judge, on oral evidence of witnesses present, whose evidence may be challenged in every

respect by the opposing party, and where a plaintiff can only succeed by establishing wrongdoing on the part of the defendant on the

balance of probabilities, and when if either party is unhappy with the outcome, all aspects of the claim may be subject to appeal and

rehearing and review. Even if a claim is factually sound it will fail if it is not brought within the time set out by the statute of

limitations (and the defendant raises that matter in their defence) and even a successful claim will not result in recovery if the

defendant is still in existence, solvent, or there is no insurance policy to satisfy judgment. If a claim succeeds against a number of

defendants, there is a mechanism for apportioning liability and responsibility between the defendants. It is I hope sufficient to say

that almost in every respect a claim for compensation from the Redress Board is different. 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. I observe

in passing, that the argument here would probably not have arisen, or have had the degree of attraction it has, except for the fact

that the claim made by the applicant, if sustained in an inter partes hearing, might be the basis for successfully establishing

negligence against the hospital. But it is important to remember that the scheme does not require negligence to be established as a

condition of recovery, specifically excludes such findings, and if the interpretation advanced by the applicant is correct, it is not

necessary that any wrongdoing of any sort be suggested, still less established.

60 The second argument focuses on the apparent illogicality of the position adopted by the Committee in apparently maintaining that

while the transfer was abuse within the meaning of the Act, the damages awarded could not cover the abuse alleged to have been

suffered in the Nursing Home to which the applicant was transferred. This seems to separate the abuse from its consequences. The

point is made forcefully in the submissions made on behalf of the applicant to this Court. It was argued that if compensation was not

being awarded for the abuse in the Nursing Home to which it is alleged the transfer led, then it is difficult to understand what justified

the increase in compensation before the Committee since it is difficult to see what consequences followed from the transfer alone if it

is divorced from the treatment in the Nursing Home. It is the weakness of any compromise position that it can be assailed from either

side. It is said that if the compensation did indeed cover the abuse in the Nursing Home, it is too low, particularly in the light of the

psychological evidence now adduced, but if only limited to the transfer itself and divorced from the consequences in the Nursing

Home, then it is too much.

61 For reasons I have already touched on, it is not clear that the Committee did not indeed award damages in respect of abuse in the

Nursing Home which on the fairly limited information available to the Committee, appeared to be one of a number of factors leading to

the applicant’s present condition. However, that is not how the Committee has characterised the award for the purposes of these

proceedings. I appreciate the strength of the argument that if the Committee was correct to consider transfer as abuse, then it was

illogical, at a minimum to exclude the abuse carried out in the Nursing Home from the compensation payable for that abuse of transfer.

62 This argument undoubtedly attacks the Committee’s position at its weakest point but once again, the argument is based on an “if”

proposition. If in this case the Committee was entitled to consider the transfer as giving rise to a claim for compensation, then more

compensation should arguably be recoverable, or at least, the Committee could not exclude from its consideration the events which

occurred in the Nursing Home and their consequences. But particularly when the legality of a process is challenged, I do not think we

can start from that intermediate proposition based as it is on an assumption. Instead it is necessary I think to consider if the transfer

was abuse, and second abuse giving rise to compensation. For reasons set out above, I do not consider that it did satisfy the test of

abuse, but in any event, even if it did, it still did not give rise to an injury while resident in the Nursing Home. This argument basing

itself on an assumption attributed to the Committee in truth seeks to avoid the difficulty posed by the statute, and in particular s.7.

63 Third it is said that in a case which falls undoubtedly within the Act, claimants are entitled to recover the consequences of abuse,

in legal terminology - sequelae, which occur and may indeed manifest themselves long after the person left the institution. But I

cannot see that this is a reason to depart from the scheme of the Act which makes residence and in particular injury while resident

consistent with abuse while resident the trigger allowing recovery of compensation for the consequences of such injury. It is also said

that the Court should adopt a broad purposive interpretation of a remedial statute, relying on Bank of Ireland v Purcell [1989] I.R. 327

and Gooden v St Otterans Hospital [2005]3 I.R. 617. This is of course a purposive approach. Even if this is so, the statute must still

be interpreted. The process of statutory construction cannot be treated as an exercise where the words of the statute are fed in to

the magician’s black box and words of incantation such as purposive, generous or literal or strict are spoken almost at random, before

the desired result is extracted from the other side. As Hardiman J observed in Gooden, the limits of construction are reached when a

court is asked to rewrite a statute or supplement it. This echoes the approach of Lord Wilberforce in Royal College of Nursing v

Secretary of State for Health [1981] A.C. 800:

“There is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by

asking the question “what would Parliament have done in this current case – not being one in contemplation – if the facts

had been before it?” attempt themselves to supply the answer , if the answer is not to be found in the terms of the Act

itself.”

It is not permissible to extend the Act beyond its terms because a limitation deliberately included in the Act is now considered

restrictive. Furthermore, and in any event, I cannot see any purpose in the Act which would assist the applicant and by reference to

which the Act can be construed. The purpose of the Act cannot be said to be to provide compensation alone, or even to provide

compensation to victims of abuse. It was the very clear objective of the Act to give a right to compensation to only certain victims

of abuse. Those abused outside residential institutions, in other institutions, schools or domestic settings were not to benefit under

the scheme. That is the unmistakeable choice made in the legislation. And even if that was capable of dispute there is no discernible

statutory purpose that only such potential victims should be entitled to recover as happened to have been in a scheduled institution

before they went, or were transferred, to the place where they were alleged to have been abused and suffered injury. Finally I

cannot see that there is any inconsistency between section 10(4) and s.7, still less one which would justify the court in disregarding

the clear meaning of s.7 particularly when the requirement of injury in an institution is consistent with the entire structure of the Act.

s10(4) merely reflects the understanding that in most if not all cases contemplated by the Act both abuse will have occurred and the

injury sustained, in the institution. There is nothing in s.10 to dilute, still less override, the requirement in s7, which is the central

provision setting out the entitlement to recover compensation that the injury be sustained in the institution.

64 There is one further troubling factual matter. The low threshold of proof, the informality of the proceedings, and the sympathetic

approach of the Committee, have all led to a situation that despite the number of hearings in this matter, the factual background is

much less clear than that which emerges in litigation. The entire starting point of the applicant’s argument is that the applicant was

transferred by the Hospital to the Nursing Home, and indeed, the fact that the consultant attached to the Hospital as a director of

the Nursing Home facilitated the process. However, I have not been able to find any evidence that this in fact occurred. The records

of the Hospital are no longer available. However, the records of the Nursing Home were made available to the Committee, and included

some documentation originating in the Hospital. Significantly that shows a formal admission to the Hospital in 1964 at a time when the

applicant was resident in the Nursing Home and was released to the Nursing Home after treatment. There is nothing similar in respect

of 1962, and the documentation of the Nursing Home does not record admission to or a transfer from the Hospital. Furthermore, the

accounts given by the applicant both in 2002 in St James’, and to the consultant psychiatrist retained by his solicitor, is of a memory

of being taken by ambulance to the Nursing Home which implies that he was taken from his own home. Of course the applicant was

hardly three years old at the time. However, the evidence of his sister who was then 15 years old, is of remembering the trauma of

her brother being removed from the family home under threat from the consultant, that this would otherwise be a police matter. Thus,

the transcript of the hearing for the Committee on the 2nd of February 2011, records the following:

“Then after my mother came home, J was home then after the circumcision and then my mother took him down to

Harcourt Street Hospital to have him looked at. And when I came home from work that evening my mother was sitting in

the room and that the ambulance, my mother was told by Dr LW that if she didn’t send my brother to [the Nursing Home]

it would be a police matter …. He was returned after the circumcision and my mother returned home from the hospital

[the Hospital] and informed my father that if she didn’t allow my brother to go to [the Nursing Home] I came in on this

extraordinary family tension – that J now had to be taken somewhere else and that Dr LW informed my mother that if she

didn’t allow J to go it would be a police matter that she would send the police … Yes and an ambulance was sent up that

night and my brother … he was taken out by two men and taken out of the house that night.” (Emphasis added)

65 The myriad difficulties in this case stem from procedures which have been followed at each stage of the proceedings in ease of the

applicant, and the law which mixes literal and broad interpretation of the term abuse with a narrow and artificial interpretation of

injury for the same objective of facilitating the applicant’s claim. In the High Court, the judge described this process as one of well

intentioned fudge. This in my view is an apt description of what has occurred at almost each stage of this case. But the limits of any

sympathetic interpretation of law or procedures have in my view been reached here. To remit this matter to the Committee and

require it to revisit and presumably increase the award made to the applicant would be to engage upon an approach that is legally

dubious in requiring the Committee to assume that the transfer by the Hospital to the Nursing Home constituted abuse, and requires

an unnaturally strained and fanciful, and arguably, logically self contradictory finding that such transfer from the Hospital gave rise to

injury within it, and which, moreover, is in any event factually questionable in that it is not at all clear that the applicant was

transferred to the Nursing Home by the Hospital. It is not clear to me that the applicant can hope to recover a higher award unless

the Committee has regard to material emerging after the decision, and which in any event does not appear to be permitted by its own

statutory procedure. If the applicant succeeds in this course, he would be the only person in the sad and sorry history of the Nursing

Home and its treatment of young children, who would recover compensation. There is a fundamental difference between the

sympathetic and humane administration of the law, and the making of a decision which is no more than an ad hoc decision on the

perceived facts of a particular case. Here the Committee adopted the position in these proceedings that it would still permit the

applicant to accept the award even though the time for acceptance had elapsed. I assume that this is something which is agreed

with the ultimate funders of the scheme and if so, it seems a sensible and generous approach even though criticised strongly by the

applicant’s solicitor. I would not be prepared to set aside the decision of the Committee in circumstances where if there was a full

rehearing of the merits before the Board and the Committee it might result in no recovery for the applicant, and where if the applicant

was to succeed the Committee would be required to take steps I consider legally unsustainable and factually dubious.

66 Conclusion

It is apparent that, and unfortunately, I have come to a different conclusion from that of my colleagues in this case. In most cases it

might be necessary to say no more than that. However, because this case involves a point of law of general public importance, and

here an important question of statutory interpretation more generally, it has been necessary to set out at some length the reasons

which have led me to a different result and which I can now summarise:

(i) The applicant in this case suffered abuse and injury while in the Nursing Home. The Nursing Home is not a scheduled

institution under the 2002 Act. No one who was a resident in the Nursing Home and who suffered similar abuse can

recover ,or has recovered ,compensation under the 2002 Act. They must pursue any claim they might have by litigation.

(ii) It is said however that this applicant was in the Hospital, which was a scheduled institution and may have been

transferred to the Nursing Home, and that because of this feature he is entitled to compensation under the Act in respect

of the abuse he suffered in the Nursing Home.

(iii) This involves, at a minimum, treating the act of transfer as abuse under s.1(1)(d) of the Act. I would be slow to do

so, and would myself prefer an interpretation of s.1(1)(d) limited to direct abuse in the same way and following from

s.1(1)(a) to (c) but since that argument did not proceed in this way I would not rest my decision on that interpretation.

(iv) I do not approach this case on the basis of adopting a literal strict or legalistic interpretation of the Act. Instead I

fully accept that in construing this Act, a court must seek an interpretation consistent with the purpose of the Act. The

words of the relevant section, in this case s.7, are to be construed as the product of a careful and formal use of

language, but they must also be understood in the context of the Act as a whole, the purpose of the Act as to be

discerned from it, and the background against which the legislation was enacted. Sometimes these factors of words

context purpose and background may point in different direction and difficult issues of balance may arise. Here in my view

they all point to the same outcome.

(v) The concept of considering transfer from an institution as itself constituting abuse necessarily entails as a logical

consequence, that the direct abuse and injury for which compensation is sought will occur outside the institution and in

another place.

(vi) It is clear from the words of s.7 of the Act however that other than in two specific circumstances which admittedly

do not apply in this case, injury must occur within the institution and not outside it or elsewhere. Furthermore, this is a

very deliberate statutory choice. The central test for entitlement to an award under the Act is that an applicant establish

that “he or she was injured while … resident [in an institution] and that injury is consistent with any abuse that is alleged

to have occurred while so resident”.

(vii) This is also consistent with the broader scheme of the Act. It is after all a scheme for the provision of compensation

for abuse occurring in residential institutions. Residence in a scheduled institution is therefore central .

(viii) Furthermore, on the two specific occasions the Act makes express provision for limited circumstances in which abuse

occurring (and therefore injury suffered) outside the physical confines of an institution may nevertheless be the subject

of compensation it does so expressly . These provisions would plainly be unnecessary if the applicant’s interpretation were

correct.

(ix) In particular s.1(3) of the Act provides that if a person is transferred from a scheduled institution to another place of

residence which carried on the business of a laundry and suffered abuse in the residence, that person shall be deemed at

the time of the abuse to have been resident in the scheduled institution. This highlights at least two things. First, that

abuse (and because of s.7 therefore injury) while resident in the scheduled institution is such a central criterion that in

this circumstance where it is sought to provide compensation to certain persons who suffered abuse in other institutions

it is necessary to deem the abuse occurring outside the residential institution as occurring within it. Second, it carries the

clear inference that transfer alone does not constitute abuse.

(x) I cannot agree that a different conclusion can be reached by simply invoking the language of broad or generous or

purposive approach to the interpretation of statutes. Even adopting as broad an approach as possible, the Act must still

be construed. Some interpretation of the text must be advanced. The statutory language cannot be ignored. That is

particularly so in relation to a central provision of the Act. It is simply impossible to advance any interpretation of section

7 which permits the Applicant to succeed. But even if it were permissible to disapply both the text and structure of the

Act, I can discern no statutory purpose which would justify the result for which the applicant contends. It is insufficient

in my view to say that the purpose of the Act is to provide compensation, or even compensation for victims of abuse. As

the Act makes it absolutely clear from its long title onwards, its purpose is to provide compensation only to certain

persons who were resident in certain institutions and who received injuries consistent with abuse while so resident.

(xi) The statutory dividing line between those certain victims of abuse entitled to the benefit of the scheme, and those

other victims who could not benefit from it, and are left to pursue actions in tort, is suffering of injury while resident in

the scheduled institution, consistent with abuse suffered while so resident. There is no statutory purpose discernible to

provide compensation for persons who received an injury or who suffered abuse in other locations (other than the two

specific examples already referred to and which do not benefit the applicant). Indeed, the opposite might be said to be

the case. There was clear statutory intent that persons who suffered abuse in other locations such as schools, homes,

hospitals or other institutions, could not benefit from the 2002 Act. Many children suffered the same treatment as the

applicant did in the Nursing Home. There is nothing in the statute to suggest that some only of these children may

recover compensation under the 2002 Act, and then only because they happened to be admitted to the Nursing Home

from a hospital or other institution which was indeed a scheduled institution.

67 Accordingly, while I have no lack of sympathy for the Applicant, and I hope no lack of generosity towards the objects of the Act, I

would, for my part, dismiss the Applicant’s appeal.