IESC 6 · Supreme Court

An Chúirt Uachtarach

The Supreme Court

Denham CJ

O’Donnell J

MacMenamin J

Dunne J

Charleton J

Record number: 2001/1676P

Appeal number: 147/2014

[2016] IESC

Between

Pádraig Hickey

Plaintiff/Respondent

and

Patrick McGowan, Christopher Cosgrove and the Minister for Education & Science, Ireland & the Attorney General

Defendant/Appellant

Judgment of Mr Justice Charleton delivered on Thursday the 9th of February 2017

1. At issue on this appeal is vicarious liability for the sexual abuse of a pupil by a teacher. An important aspect of the case is also

whether the present leader of an unincorporated religious group, specialising in teaching, may be vicariously responsible when one of

their number sexually abused a child in a school 40 years ago, a time when he may not have even entered that way of life. While this

case concerns an unincorporated religious order, many other groups of people who pursue similar aims and interests, such as sporting

associations, also organise themselves without incorporation. Hence, the problems of liability and succession to liability are not

specific to religious orders. Religious orders are merely one class of organisation lacking legal personality. Such groups must be

considered within a broader analysis of vicarious liability. That aspect of the appeal also brings into focus succession to liability

through a corporation sole, as mentioned in the judgment of Geoghegan J in O’Keeffe v Hickey [2009] 2 IR 309.

2. Brother Patrick McGowan, the first defendant, and the appellant herein, is the only appellant from the judgment of Ó Néill J in the

High Court of 24 January 2014, [2014] IEHC 19. In his judgment, Ó Néill J awarded at full value the sum of €350,000 to Pádraig

Hickey, the plaintiff, as damages in respect of sexual abuse suffered by him between 1969 and 1972 at Saint John’s, a Catholic

national school in Sligo. These damages were reduced by 10% because of the defendants not proceeded against, as listed in the title.

At that time the school was staffed by the Marist Brothers, a religious order devoted to teaching. Brother McGowan never abused

Pádraig Hickey. The trial judge determined that the abuse was committed by Christopher Cosgrove, who was a Marist Brother when he

abused Pádraig Hickey but who has since left the Brotherhood. That second defendant, ex-Brother Cosgrove has not appealed. The

action against the State defendants was never proceeded with. It might also be noted that counsel arguing the appeal on behalf of

the plaintiff/respondent differed from counsel in the High Court.

Facts

3. This national school was run according to pattern familiar in Ireland of having a board of management, headed by a school manager

who was not involved in the day to day management of the school. He was a cleric who was appointed to that position by the patron

of the school, who was the bishop of the diocese in which the school was situated. The bishop was not joined in these proceedings

and neither was the school manager, who, as will be seen, was the administrator, or effectively parish priest, of the diocesan

cathedral. Brother McGowan, it appears, is now the principle of the Marist Brothers in Ireland. The Marist Brothers are an

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

The vows are for life. The case was never made that ex-Brother Cosgrove was known, or reasonably suspected, to be a danger to

children. There was no evidence to that effect. No fault was alleged against the Marist Brother then in charge of the school for

allowing ex-Brother Cosgrove to teach, and thus have access to children. The fault proven in this case is that of ex-Brother

Cosgrove. He, as the trial judge found, sexually abused Pádraig Hickey. The liability is vicarious. At paragraph 4 of his judgment, Ó

Néill J described what he had been subjected to as a child. An edited quote suffices to indicate the terrible nature of the abuse of

authority which polluted the plaintiff’s childhood:

The plaintiff … described becoming involved with the school band… [Ex-Brother Cosgrove] was in charge … [H]e began the

practice of holding the plaintiff in a close manner [whilst teaching him to play the drums] and of bringing his face into very

close proximity with the plaintiff’s face. This type of activity, the plaintiff said, then continued in the normal classroom.

[Pádraig Hickey] would frequently be instructed … to come to the top of the class … either under the pretext of reading

to the class or of being assisted in learning. … [Ex-Brother Cosgrove] began rubbing his legs and this evolved into fondling

his anus and genitalia, initially outside his clothes, but then inside his clothes and at times inserting a finger into the

plaintiff’s anus. … The plaintiff described these activities as occurring several times during every week and that they were

a cause of the gravest upset to the plaintiff and that he was powerless, in the context of the position of authority of the

second named defendant and his close relationship with the plaintiff’s family, to do anything about it and that he lacked

the language to express his distress and unhappiness.

4. On the evidence, the wrong for this was entirely that of ex-Brother Cosgrove. Nothing flagged whatever perversion drove him on.

There was no indication to either the Marist Brothers or to anyone else teaching in or running that school that he had a sexual

attraction to small boys. Had there been any indication, a case of negligence might have been built against another party; that of

failing to prevent foreseeable harm. Vicarious liability, however, ascribes liability without fault. A primary tortfeasor is responsible for

the wrong, and thus must be at fault, but the employer, or master to use the language of older cases, of that tortfeasor becomes

liable through the relationship whereby the wrong is ascribed without fault to the person or body employing him. Brother McGowan, as

the current head of the Marist Brothers in Ireland, was held by the High Court to be responsible vicariously for the wrongs of ex-

Brother Cosgrove four decades previously. The fault of ex-Brother Cosgrove was ascribed without fault on the part of Brother

McGowan to him solely by reason of his now having a leading role in that religious order in Ireland.

5. Before this case commenced, no representative order was sought on behalf of Pádraig Hickey against the Marist Brothers, no

interrogatories were served, no discovery was sought as to the structure of the religious order or as to any manner in which

responsibility was structured by that group, or property was held, and no exchange of particulars or interrogatories explored any of

those issues. During the course of the case, these matters were not addressed in evidence. There was no, or minimal, focus on even

the issue of who ran Saint John’s School in Sligo in the 1960s and 1970s. How authority was structured in the school was left

unexplored. Ó Néill J found ex-Brother Cosgrove liable as the tortfeasor and Brother McGowan liable as his employer. Brother McGowan

was, in this sense, regarded as somehow being the personification of the Marist Brothers. The explanation for how Brother McGowan

came to be in the case at all came from counsel for Pádraig Hickey on the first day of the trial in November 2012 in terms that he was

being sued “in his capacity as the head of the Marist brothers and in the sense they’re being sued on the basis that they are

vicariously liable for the actions of [Ex-Brother Cosgrove] who was at the time a Marist brother.”

6. The appeal ranged over the multiple questions and was based on patchy testimony regarding the regrettably unexplored issues as

to authority and structure within the school. It may conveniently be organised by a focus on the following questions:

(1) Was there evidence that the Marist Brothers were in control of the school or evidence from which such control might

be inferred?

(2) Does control of a school by a religious order lead to the conclusion that abuse committed during the course of

teaching by a brother renders the abuser’s congregation vicariously liable?

(3) Does this vicarious responsibility make the head of the congregation liable?

(4) Can the successor to the head of the congregation be liable, even after decades have passed?

(5) Do errors in the pursuit of this case on behalf of the plaintiff Pádraig Hickey require the ordering of a retrial in the High

Court?

(6) Must the damages be reduced as excessive and further reduced under the Civil Liability Act 1961, as indeed the trial

judge reduced same to €315,000, by reason of not pursuing a concurrent wrongdoer, the State defendants?

Proceedings on behalf of Pádraig Hickey

7. This action was commenced by the issue of a plenary summons on 6th February 2001 against the parties named as defendants

herein. As Pádraig Hickey testified in the High Court, litigation had not been contemplated in the prior decades because of the

complete suppression of these repellent memories into his subconscious. With the commencement of a Garda investigation into other

instances of abuse at the school, he was contacted and subsequently sought psychiatric help. The trial judge in the High Court held

that memory of the abuse was reliably recovered with the help of professional assistance. Letters of demand were served on, perhaps

only some of, the proposed defendants on 9th of February 2001. Letters were received on various dates thereafter from all but

Brother McGowan indicating on whom service should be affected. There was no evidence of service on Brother McGowan of any such

letter. Further, the plenary summons was only served on the actual abuser, ex-Brother Cosgrove. Pádraig Hickey changed solicitors

some years later and there is a notice of change of solicitor dated 22nd August 2008, which on the face of it claims to have been

sent to all of the parties. This was ostensibly accompanied on that date by a notice of intention to proceed in similar form.

Apparently, it was then noticed that the plenary summons had only been served on ex-Brother Cosgrove. An application was brought

on behalf of Pádraig Hickey to renew the summons. In his supporting affidavit, dated 20th November 2008, Brother McGowan was

described as “a representative of the Marist Brothers”, yet no order had been sought in that regard. The affidavit avers that “in the

light of recent case-law”, he had “no cause of action against the State defendants” and that he was “not proceeding against those

defendants.” The affidavit avers that the action against the State defendants was discontinued, but no notice of discontinuance was

exhibited. As to service on Brother McGowan, the affidavit avers that he could find “no evidence of service”. An opportunity was

thereby presented to offer evidence through a replying affidavit as to who Brother McGowan was, when he joined the order and what

responsibility he held and when. That opportunity was not taken either then or at the trial. Instead, the defence of this case

proceeded as if Brother McGowan was an accused in a criminal trial and was keeping an unbreakable counsel of silence.

8. By motion dated 20th April 2009, Brother McGowan sought to set aside the renewal of the plenary summons, which by this stage, 8

years after it had been issued, had been served on him. He also sought a dismissal of the proceedings against him for inordinate and

inexcusable delay. He averred in his supporting affidavit that no “letter of demand was sent to or received by me on behalf of the

Marist Brothers.” In a later affidavit, he also explicitly put on warning those proposing to run the case that his religious order did not

run Saint John’s School:

The second issue I wish to deal with … is the suggestion that the Congregation of Marist Brothers were responsible for

running the school at the time. This is not true. It is correct that a number of members of the Marist Congregation taught

at the school but the Congregation never managed it. The school was at the time of the events complained of …

managed by an individual school manager, who was the local priest in the parish and not a member of the Marist

Congregation.

The issues just joined and specifically warned of should be noted together with the lack of any useful testimony on the issues. The

order of O’Keefe J of 16th October 2009 was to dismiss that motion. The plenary summons thus stood.

9. By a defence dated 10th February 2010, Brother McGowan addressed the claim of liability through ex-Brother Cosgrove having once

been a member of the Marist Brothers by denying that this could give rise to liability. He pleaded at paragraph 4:

The plaintiff discloses no cause of action as against the First named Defendant on the basis inter alia that the religious

order described as the Marist Brothers is an unincorporated association, whose members are not liable in law, either

directly or vicariously, for any act or default of each other. Further, and without prejudice to the foregoing, the current

members of the Order are not liable directly or vicariously for any act or default of any member of the Order committed

prior to their becoming members thereof.

10. It is not denied that Brother McGowan is now a member of the Marist Brothers. Nor is it denied that he was at the time of these

wrongs against the plaintiff Pádraig Hickey. Nor is any pleading directed as to the organisation of the Marist Brothers and, subject to

what follows, the issue of the structure of this unincorporated association is not set out as a matter of fact in this defence. The

defence simply says: an unincorporated association cannot be responsible for torts committed during work on its behalf; and, even

still, current members are not liable for what former members did.

Validity of High Court findings

11. On this appeal there has been a challenge on behalf of Brother McGowan to the finding implicit in the award of damages that the

Marist Brothers were running St. John’s School in Sligo when Pádraig Hickey was abused. Ó Néill J held that the effective running of

the school was by the Marist Brothers. This extract from his judgment is to be found in paragraphs 40-42:

St. John’s National School in Sligo, when the plaintiff was a pupil in it, was a Marist school in the sense that the Principal

was a Marist Brother and the teachers in it were nearly all Marist Brothers. These Brothers were selected for their

respective positions and directed to take up those positions by the predecessor of the first named defendant, the

Provincial for the time being of the Marist Brothers in Ireland. The Marist Congregation was dedicated to the care of the

young and in pursuit of this primary objective, the principal activity engaged in was teaching. Notwithstanding the clear

identity of St. John’s School as a Marist school, it was nonetheless a national school subject to the prevailing legal regime

for the governance of national schools... What this meant … was that the administrator of the parish, on behalf of the

Bishop who was the patron, was the manager of the school and it was he who discharged the function of legally

appointing teachers to the school, including the Principal. The school was run under the 1965 National School Rules

regime, so that the curriculum pursued and the academic standard required was regulated by the Department of

Education which pursued its interest in the system through the School Inspectorate system. I am satisfied on the

evidence that, on a day-to-day basis, the school was run by the Marist Brothers and was under the day-to-day

supervision of the Principal, who was a Marist Brother, and the manager at the time, Canon Collins, had very little, if any,

hands-on involvement in the day-to-day management and running of the school, which I have no doubt the manager at

the time and also, probably, the Bishop of the Diocese as patron, were more than content to leave in what they would

have seen as the competent hands of the Marist Brothers … who could supply sufficient numbers of trained and

experienced teachers who shared the religious ethos which the Bishop, as patron, sought to uphold.

12. On appeal, a court should take the findings of fact as decided by the trial judge once these are supported by evidence, as per

McCarthy J in Hay v O’Grady [1992] 1 IR 210 at 217 if “the findings of fact made by the trial judge are supported by credible evidence

… however voluminous and, apparently, weighty the testimony against them” because the “truth is not the monopoly of any

majority.” There is a difference between a trial judge making an erroneous finding of fact and making a choice between competing

evidence. In the latter instance it is not for an appellate court to “second guess the trial judge’s view”; Doyle v Banville [2012] IESC

25 at paragraph 2.7 per Clarke J. In this case it has been necessary to consider the entirety of the transcript to adjudicate whether

there was evidence upon which a trial judge could reasonably conclude that the Marist Brothers were running the school. Pádraig

Hickey testified that during his time in the school he had two teachers, the first a Brother Mel, with whom he had “no issues”, and the

second Brother Cosgrove, as he then was. No other teachers are mentioned, particularly none outside the religious order. In referring

to teachers, he mentions the Marist Brothers as wearing a distinctive form of religious dress. Four witnesses who had been pupils with

Pádraig Hickey were called to testify to the abuse that they had seen him suffer at the hands of ex-Brother Cosgrove. They were not

asked about the school, its structure or even what they observed as to who was teaching there. Canon Tom Hever testified that

under the Education Act 1998, a national school is run by a board of management, of which he was the current chairman. Historically,

he said that the patron was the Bishop of Elphin and his predecessors and acknowledged that up to the mid-1970s the Bishop “would

nominate, if he wished, a manager to manage the school on his behalf.” His understanding was that, at that period in time, it “would

have been the administrator of the cathedral.” As the Diocese of Elphin owned the property, and still does apparently, a Canon Collins

was the manager at the time of the abuse and was succeeded by Father Gerry Donnelly. Nothing indicates that any of these had any

awareness of what was happening at the school. Indeed, one of Pádraig Hickey’s classmates who witnessed the abuse told only his

mother what he had seen. The result was that he left formal education in disgust. The school also had a headmaster. Canon Hever

understood that the Marist Order would “put forward a name, but that would have to be approved by the manager.” Such a

headmaster would have to meet the qualification standard of the Department of Education, as funder of national schools. The

function of the headmaster would be “as they are today, to run the school on a day to day basis.” He agreed that this made the

headmaster the day to day manager of the school. The cathedral administrator, he said, would have had no particular experience in

education and would learn, as he had, through experience or perhaps do a course. Asked how the Marist Brothers became involved in

the school, he said:

My understanding is that they’d always have to be invited in by the bishop, so they would have been invited in by the

bishop of the time. I’m not too sure who that was or exactly when it was … I would think initially [the teachers] were

probably all Marist, but then over a period of time they would have been lay people involved as well … over time. … The

completion of any appointment [of lay people] would have been up to the manager. The principal could have

recommended somebody … I think in those times I don’t know if interviews had come in … but it was always up to the

manager to ratify any appointment.

13. Canon Hever agreed that the principal of the school was “always a Marist” at the time of the abuse, 1969 to 1972. Up to 1971,

his evidence was that the principal was Brother Phelim and that he was replaced by the manager appointing Brother Einhard. Ex-

Brother Cosgrove testified that he had entered the Marist Order at the age of 13 and had trained after secondary school as a

teacher. He was “then assigned to Strokestown National School, a small school with two teachers” from where he “was assigned to

St John’s school in Sligo” where he “taught the plaintiff.” His understanding that while he may have signed a standard form of

contract with the Department of Education, the same as with other teachers “around the country”, he was “appointed by the

provincial” of his religious order to his teaching assignments: “I was sent by the provincial when he made changes and brothers from

around different places to different schools, I was sent to Sligo … the same thing.” There was no evidence called from the defendant

Brother McGowan as to his career or responsibilities.

14. It would be unnecessary to resort to judicial notice – the experience which many judges have of their own education in national

schools staffed by members of a religious order – to uphold the findings of the trial judge. No source of authority is mentioned in the

evidence as operating within the school apart from the Marist Brothers. On no occasion is any decision by the school manager

referred to. There is nothing to indicate him as being in a superior position. Witnesses operated on an underlying acceptance of fact

that the Marist Brothers were in charge of the school. Canon Hever made explicit in his testimony that while the principal of the

school was subject to the administrator of the local cathedral, this was not in any sense an executive role. In consequence, it is clear

that the trial judge’s findings of fact in this regard were soundly based on evidence.

15. On the structure within which ex-Brother Cosgrove operated, the trial judge found that he was answerable to his religious

superior. This extract is taken from paragraph 43 of his judgment:

…insofar as the control of the day-to-day activity of a teacher, such as the second named defendant, was concerned, I

am quite satisfied that this would have rested exclusively within the realm of the Marist Congregation, initially between

the teacher and the Principal of the school, and if issues were not resolved within that relationship, it is probable that

they would have been, within the hierarchical structure of the Marist Congregation, no doubt achieving compliance to

whatever was required, on the part of the teacher by recourse to his vow of obedience. Only in the extraordinary

circumstance of a Marist Brother defying the authority of his superiors in the congregation, in my opinion would it have

been necessary to have involved the manager of the school to resolve problems or difficulties arising in connection with

the discharge by the teaching Brother of his teaching duties.

16. This finding was, again, soundly based in evidence. In addition to the above quotation in the context of the organisation of

teachers within the school, the evidence of the Reverend Professor Michael Mullaney provided a foundation upon which the analysis of

the trial judge of the relationship between an individual Marist brother and his superiors could be based. While, on this appeal, there

was a strong focus by counsel on behalf of Brother McGowan as to whether the correct constitution of the Marist Brothers had been

used by this expert witness, and while it was necessary to obtain during the testimony a copy of the earlier constitution in Latin,

which no one in court spoke, these difficulties are more apparent than real. As that witness said: “I wouldn’t imagine the constitutions

have changed enormously because obviously there’s a lot of consistency between the code of 1917 and 1983.” While this expert

witness, called on behalf of Pádraig Hickey, had conducted no study of the Marist Brothers, his general evidence as to how religious

orders are structured and managed was capable of acceptance by the trial judge. He gave a general overview of how a religious order

“organises itself in terms of the hierarchy” thus:

Judge, the order is an institute of consecrated life in the Roman Catholic Church. It would be known as … an autonomous

institute of pontifical right which means it’s a religious order which is approved by the Holy See and … there are a number

of superiors within it. I suppose they have a major superior who is based in Rome. The order is divided – he has oversight

of the order which is divided into, I suppose, you might say provinces or I suppose by analogy to dioceses maybe for a

bishop but it’s provinces and that a provincial brother in this case would be … in each of those provinces there’s individual

houses which would have their own superior but the key superior would be the provincial brother …[w]ho is over the

province who makes most … of the significant decisions. [Going down to the next level w]ould be the superior of a house.

Yes, there would be three main levels of superiors. You’d have the major superior, the provincial superior and the local or

house superior.

17. He confirmed that this was the “situation as prevailed” in 1969 to 1972. Asked by the trial judge as to the nature of the

relationship between a Marist Brother and his superior, the witness emphasised their vows of chastity, poverty and obedience.

Referring to the vow of obedience, he said:

In the case of any religious [member of an order], a vow of obedience would mean to the superior or the provincial

superior that they … would carry out the pastoral assignments that had been entrusted to them, that they would live a

life that would be compatible with the spirituality or the charism that is the – the charism is the distinctive work or

apostolic work or spirituality of the order. So, the superior would ensure that a member of the order was living a life

faithful to their vows, fulfilling their duties… Well, the motivation for obedience for religious would be different. It would be

based on … religious motivations for … spiritual reasons to imitate, obviously, Jesus. … I mean, you can never obey

something that’s immoral or unjust or against … moral principles of any kind. Definitely [it is somewhat more extensive

than the realm of obedience that exists in normal civil society], and even within other parts of the church. I mean a priest

would make a promise of obedience to his bishop as distinct of a religious makes a vow, they’re very different … shades of

obedience, obviously, but a religious’ obedience is more comprehensive … You know, decisions are made with consultation

also but there is, at the end, there’s a certain sense of trust, entrusting yourself to your superior …

18. Each Marist Brother surrendered his salary to his superiors and was, in turn, given modest living expenses. Asked about holding

property, this witness indicated “I am beyond my competence”. He simply commented that as a matter of canon law, the Marist

Brothers were entitled to own property but he added “I have no idea what they owned.” Nor did any other evidence or pre-trial

procedure in any way further illuminate what property the Marist Brothers may have owned or the structures within which they owned

it. Nor was there any evidence to indicate who precisely Brother McGowan was, what role he had in the Marist Brothers, whether he

had held office for a particular time and had a predecessor. No evidence was called on this issue, crucial to the resolution of this

case, on behalf of Brother McGowan.

19. From the point of view of vicarious liability, there was evidence upon which Ó Néill J could hold that ex-Brother Cosgrove while a

Marist Brother was subject to direction by his immediate superior, in this instance the principal of the school, in ways that were

equivalent to an employment contract and perhaps more binding. In terms of ordinary sense, the relationship between persons in

religious orders is closer than in employment; the direction by their superior is stronger than that of a boss at work because he or she

carries moral as well as financial authority; and the coherence of a group advancing temporal aims for spiritual purposes exceeds that

of any secular organisation.

Vicarious liability

20. In the notice of appeal by Brother McGowan, it is pleaded that:

…the learned trial judge erred in fact and/or in law in relation to the finding of vicarious liability by failing to have any

regard or any sufficient regard to the fact that [Brother McGowan] was not an employer of [Ex-Brother Cosgrove].

It is also contended that the trial judge erred “in failing to have sufficient regard to the actual employment relationship which did exist

between [Ex-Brother Cosgrove] and the school manager.” The argument here is that the abuser was not an employee of the Marist

Brothers but was in fact employed by the school manager who, in turn, employed all of the Marist Brothers staffing and managing the

school. Again, this is a legal argument and again the absence of contradictory evidence on key issues of fact discloses a reliance on

the key elements of the defence.

21. Ordinarily a tortfeasor will have only one employer at the time of the wrong for which the plaintiff seeks damages. There may be

cases where the courts are required to determine liability as between two apparent employers. This is not one of those cases, as the

only party in respect of which a relationship giving rise to vicarious liability was contended for was that between ex-Brother Cosgrove

and the Marist Brothers.

22. The extension of liability beyond the tortfeasor, the party who actually committed the wrong in circumstances which attracts an

award of damages, to another party is most often dependent on an employment relationship. That is not always necessary. The

modern law of vicarious liability developed from earlier models of strict liability, whereby an innocent party became responsible for the

wrong of another by reason solely of a relationship. Historically, the treatment of the origins of vicarious responsibility as set out in

Fleming - Law of Torts (10th edition by Sappideen and Vines, New South Wales, 2011) illuminates that relationships apart from

employment were one of the strands from which current legal principles developed. At paragraph 19.10 of that work, it is stated:

Vicarious liability is a familiar feature of most systems of primitive law, and early English law was no exception. A notorious

example is the erstwhile liability of a husband for the torts of his wife. The responsibility placed upon the head of the

household for the conduct of his familia was also the genesis of the master’s liability for the torts of his servants, which,

despite a varied history reflecting considerable vacillations of judicial outlook, has remained the principal instance of

vicarious liability in modern law.

23. While developments in the common law have most recently focused on control or participation in enterprise as criteria whereby it

may be determined as to whether an actual employee, that is one receiving a salary from the party sought to be made vicariously

responsible, is within the scope of his or her duties, circumstances outside employment enable a sufficient connection to impose

liability on another party. That other is usually sought out because of apparent greater likelihood that they will have the ability to

pay. In this jurisdiction, the leading example of a non-employment relationship giving rise to liability for the negligence of another is

Moynihan v Moynihan [1975] IR 192. There, a householder was sued for the negligence of another, Marie, in placing a pot of tea

covered with a bright tea cosy attractive to a child on a table where the child was left at large. Marie was the two year old child’s

aunt and the householder was the child’s grandmother. The reasoning of Walsh J for the majority was dissented from by Henchy J,

and has been otherwise criticised judicially and academically. The analysis, nonetheless, harkens back to the historic origins of the

law whereby an innocent party may be made liable for the blameworthy actions of another by reason of relationship. At page 197,

Walsh J stated:

The negligence attributed to Marie was not the casual negligence of a fellow guest but may be regarded as the

negligence of a person engaged in one of the duties of the household of her mother, the defendant, which duties were

being carried out in the course of the hospitality being extended by the defendant. The nature and limits of this

hospitality were completely under the control of the defendant, and to that extent it may be said that her daughter Marie

in her actions on this occasion was standing in the shoes of the defendant and was carrying out for the defendant a task

which would primarily have been that of the defendant, but which was in this case assigned to Marie. As the defendant

was the person providing the hospitality, the delegation of some of that task to her daughter Marie may be regarded as a

casual delegation. Marie's performance of it was a gratuitous service for her mother. It was within the control of the

defendant to decide when the tea would be served and where it would be served and, indeed, if it was to be served at

all. It was also within the control of the defendant to decide how it would be served.

24. Dissenting, Henchy J relied on the test which enabled liability to be established to a fault-free party where the relationship is of

the party at fault performing work as a servant for the benefit of his master. Non-delegable duties were an exception to that rule,

which reflected the distinction, which the law still maintains, between those engaged on behalf of another in a relationship of work

and those merely hired on occasion to do a task: the chauffeur and taxi-driver distinction. While disavowing this authority, thus

preferring the dissenting view, Professor Heuston in a classic edition of Salmond on Tort (17th edition, Heuston editor, London, 1977),

nonetheless acknowledges that employment relationships alone are not the sole basis of vicarious responsibility in tort. Control is

nonetheless essential. At page 460-461 the following is stated:

One person may be the servant of another although employed not continuously, but for a single transaction only, and

even if his service is gratuitous or de facto merely, provided that the element of control is present. The relationship of

master and servant is commonly a continuing engagement in consideration of wages paid; but this is not essential. The

service may be gratuitous, as when a child acts de facto as the servant of his father. But this must not be taken too far.

The owner of a dog is hardly liable if a friend takes it for a walk and a pedestrian trips over the lead carelessly held. Nor is

a householder liable if a guest, as distinct from a hired domestic help, carelessly pours hot tea over a fellow-guest. For it

must always be remembered that the mere existence of a right of control is not sufficient to found liability. Otherwise a

parent would always be responsible for the torts of his child, or the Crown for the torts of its prisoners.

25. In any defendable analysis of a relationship based on control giving rise to vicarious liability, the distinction between a contract of

service and a contract for services must not be blurred. The famous remark by the crane driver that “I will take no orders from

anybody” noted in Mersey Docks v Coggins [1947] AC 1 by Lord Simonds at page 20 is in our time even more often replicated in the

modern employment relationship where specialist operatives engage in tasks beyond the capability of their employer’s direction. Where

even a minimal understanding of how to go about the task is absent from the employer, however, that does not absolve an employer

of responsibility. What remains is the duty to engage safe systems and to explore reasonably how such systems might be implemented

and to set appropriate rules. Tort law structures itself by imposing liability for the avoidance of future harm. As the Supreme Court of

Canada stated in Bazley v Curry [1999] 2 SCR 534 at paragraph 33:

...[b]eyond the narrow band of employer conduct that attracts direct liability in negligence lies a vast area where

imaginative and efficient administration and supervision can reduce the risk that the employer has introduced into the

community. Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take

such steps, and hence, reduce the risk of future harm.

26. Control, nonetheless remains a component part of the test whereby non-employment relationships attract vicarious liability in

respect of those who engage in a task on behalf of another. In the instances where such liability was imposed, the degree of control

was at a level where the relationship was at an equivalent level to employment. Because of statutory intervention providing for

automatic liability of a car owner for the driver, the once illustrative use of vehicle cases are now less relevant. Fleming, however,

notes at paragraph 19.50 the following situations:

A road haulier who provides his own truck may be an independent contractor even if the work is almost exclusively for one

customer; while a radio artist engaged to participate in a particular play has been held to be a servant despite receiving a

fee rather than a salary, because he was subject to extensive directions by the producer. The employment of a servant

may be limited to a single occasion or extend over a long period; it may even be gratuitous. It applies alike to a manual

labourer, a ship’s captain, a schoolteacher, a circus acrobat, a fireman, and a son occasionally requested to drive his

invalid parent in the latter’s car. The continued use of the word “servant” is perhaps unfortunate, because it carries a

colloquial connotation far narrower than its legal meaning…

27. This judgment is not to be taken as approving these authorities but as drawing on a relevant analysis. While these are instances

of liability imposed outside the relationship of employment, what characterises them is a close scrutiny of the nature of the work

provided and the extent and degree of control over that work within a particular context whereby it becomes inescapable that the

relationship is equivalent to employment. In this instance, the careful questions of the trial judge illuminated that the obligations then

assumed by ex-Brother Cosgrove had such equivalence. Indeed, the moral nature of the submission to religious vows, the duty of

obedience, the unquestioning move from one teaching position to another and the strict nature of the obligation assumed within a

religious order to accept direction show more than the employment relationship ever demands. Within the school, a teaching Marist

Brother was equivalently under the direction of the Marist Brother principal of Saint John’s school and any relationship with either the

school manager or the Department of Education was, in this instance, a matter of form. On the evidence, it cannot be seen as a

matter of control or direction.

28. From the earlier rules, the modern approach to vicarious liability may fairly be recognised as having developed through policy

considerations. Those who have control over an enterprise may not be able, as in prior times, to pretend to a knowledge or level of

skill equivalent to their workforce, but are enabled to organise the manner of work and relations with those with whom it is engaged

so that risks are reasonably anticipated and, through safety measures and training, are minimised. Of course, the absence of such

engagement in foresight and prevention may of itself establish fault. The party, however, with the ability to assess risk and to guard

against or insure against it will be the organiser of the work, usually an employer. In advancing the economic interests of the

enterprise, a corresponding duty has arisen whereby those working for such an enterprise, as salaried individuals, and without the

backing of capital, become as one with those who employ them. Tort liability thus pursues its part of the proper ordering of society

because it incentivises an enterprise towards safety and away from wrongful conduct. Some will criticise the extension of vicarious

liability in such a manner as a pursuit of those who have the ability to pay. As Fleming states at paragraph 19.10:

The effect of vicarious liability on the working of the modern tort system is profound. The link with personal fault is

maintained in form, but does not control who pays. Identification of the employee as nominal defendant disguises the

reality of the accident cost being borne by a larger, anonymous entity and eventually passed to a wider public.

29. The control test traditionally posits that liability is established where an employee is “subject to the command of the master as to

the manner in which he shall do his work”; Yewens v Noakes (1880) 6 QBD 530 at 532 per Bramwell LJ. This formula emerges as

strained in the present day, not only because of its archaic use of language. It is better to ask whether the person committing the

tort in the course of some task is engaged as an integral part of a business; Stevenson v McDonald [1952] 1 TLR 101 at 111 per Lord

Denning. The wrong should be committed, it was once said, in the course of employment and this meant that an employee “going on a

frolic of his own” would not render an employer liable. With the emergence of cases where employees acted wrongly and against

instructions, even to the point of effectively doing the opposite of what they were engaged to do on behalf of the employer, resort

was had to the extension of the concept of what was within the course of employment to those unauthorised acts which could be

regarded as wrongful and unauthorised ways of performing an authorised task. Thus in Colonial Mutual Life Assurance v Producers

Assurance Co (1931) 46 CLR 41, an insurance agent rendered his employer liable notwithstanding an explicit prohibition in his contract

of employment against using any language reflecting on the character or conduct of any person or institution, where he slandered a

rival company. The High Court of Australia reasoned that since it was his task to solicit business, it was incidental to that task to

select and use the appropriate means of drawing in the business of prospective customers.

30. Lloyd v Grace Smith [1912] AC 716, is the case most often cited by plaintiffs anxious to overcome what might seem a sensible

principle that no employer, outside of organised crime, generally engages an employee to perpetrate frauds on customers. There, a

firm of solicitors was held liable for the theft of mortgage monies by their managing clerk upon his inducement to a client to transfer

the mortgage to him by means of a fraudulent misrepresentation as to the nature of the transaction. One hundred years ago, sexual

abuse in a school, residential institution or therapeutic setting most certainly existed but no victim was bringing civil actions for

damages. Resort was to criminal charges, if a complaint was believed and this was unlikely as reflected in special rules requiring

corroboration of children and the downgrading of the testimony of those who did not understand the concept of an oath. Arching over

all of that was a requirement that trial judges warn juries that it was dangerous, not even that it might be, to act on a person’s word

unsupported by corroboration. Hence, vicarious liability was concerned with such wrongs as theft during the course of employment.

31. Since those older cases, conduct such as sexual abuse has been determined to fall within the scope of employment,

notwithstanding the fact that such conduct is utter anathema to professions, such as teaching, which have as their ultimate aim the

enhancement of the human spirit. No one engages a minister of religion to corrupt and denigrate youth. No one employs a teacher to

molest children and adolescents. There may have been a time in the progress of the common law when this kind of conduct would

have been regarded as beyond the no-fault responsibility of those engaging in work such as that engaged in by ex-Brother Cosgrove.

Attitudes were then different. Their conduct might be regarded as akin to a surgeon who, instead of curing in the course of an

operation, deliberately causes harm. That approach, of placing such conduct outside the sphere of what an employer can be liable

for, is the basis of the dissenting judgement of Hardiman J in O’Keeffe v. Hickey [2009] 2 IR 309. This was another case in which the

plaintiff, as a child, was sexually abused at her national school. The first defendant in that case was the abuser, the other

defendants being State parties. He reasoned that cases such as Lloyd v Grace Smith and the Johnson & Johnson (Ireland) Ltd v CP

Security Ltd [1985] IR 362, where an employer was held liable for thefts facilitated by a security man at a premises he was supposed

to guard, were anomalies decided against the principled application of the law related to the control, or were bailment cases, or even

cases of non-delegable duty. For him, strict liability was imposed on an employer for the torts of his employee where the acts were

“authorised by the employer”, or while unauthorised were “so closely connected to the acts that the employer has authorised that

they may rightly be regarded as modes – though improper modes – of doing what has been authorised.” This test is derived from

Salmond on Tort, cited above, and goes back to the 1st edition of that work in 1907. Hardiman J said at page 328, citing a similar

judgment of Costello J in Health Board v BC [1994] ELR 27:

I could not hold, on established principles, that the act of sexually abusing a pupil was within the scope of the first

defendant’s employment. It was the negation of what he was employed to do, an act of gross and obvious criminality. At

the time it was committed, in 1973, it was an unusual act, little discussed, and certainly not regarded as an ordinary

foreseeable risk of attending at a school.

32. The earlier case of Delahunty v South Eastern Health Board [2003] 4 IR 349 at 377, per O’Higgins J, had left “open to question on

a fuller analysis” whether sexual abuse could ever be within the scope of, in that case, a housemaster’s employment. In O’Keeffe v.

Hickey, the majority analysis was that of Fennelly J, with whom Murray CJ and Denham J agreed. In that judgment, the decisions of

the Supreme Court of Canada in Bazley v Curry (1999) 174 DLR (4th) 45 and of the House of Lords in Lister v Hesley Hall Ltd [2002] 1

AC 215 expanded the “improper mode of doing what was authorised” test, as the touchstone of employer’s liability, into a test

emphasising the “closely connected” aspect of the Salmond rule. Both cases involved acts of sexual abuse in the context of authority

over vulnerable young people, the opportunity for wrongdoing coming with the employment of the actual abuser and the setting within

which the employer placed him. These authorities were followed by the High Court of Australia in New South Wales v Lepore [2003]

HCA 4. In Lord Steyn’s analysis in the Lister case, at page 320, the issue was “whether the warden’s torts were so closely connected

with his employment that it would be fair and just to hold the employers vicariously liable.” Lord Clyde agreed and at page 234

suggested that “a broad approach” meant it became “inappropriate to concentrate too closely upon the particular act complained of”;

which was clearly what all of the prior cases had been concerned with in connecting the fault of the tortfeasor to that of his faultless

employer. Fennelly J commented at page 375:

The theoretical underpinnings of the doctrine of vicarious liability are much debated but no clear conclusion emerges. The

result is that strict liability is imposed on an employer regardless of personal fault, which is especially striking when the

acts are criminal and could not conceivably have been authorised, even impliedly.

33. Adopting the close connection emphasis, in Lepore, Gleeson CJ at paragraph 74 indicated that there may be a range of

relationships authorised by schools in the instruction of or care for pupils. These might range from academic development where the

educational environment merely provides an opportunity for abuse to much closer relationships. It might be commented that the

former is more characteristic of third level teaching while at primary level, a teacher may take on a mantle more akin to the

responsibilities of parental authority. Thus not all instances of the abuse of pupils by teachers came within the close connection test

as it has now developed. Gleeson CJ commented:

However, where the teacher student relationship is invested with a high degree of power and intimacy, the use of that

power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the

employment to make it just to treat such contact as occurring in the course of employment.

34. While Fleming comments that the usual means of imposing tort liability is the creation of unreasonable risk, and wonders why “a

different approach should be taken to vicarious liability”, vicarious liability should be seen as part of a weave of liability which enjoins

responsibility where it should be exercised. The editors of that work continue at paragraph 19.130:

More seriously, it is doubtful whether trying to ascertain whether there was a “sufficiently close connection” between the

enterprise and the wrongful act to justify the imposition of vicarious liability is an easier exercise than applying the old

“unauthorised mode of performing an authorised task” approach. Both require an examination of what the employee was

authorised to do and what was actually done. This difficulty is evident in the continuing unpredictability of the judgments

which have attempted to employ the newer language.

35. It may be remarked, however, that legal tests which admit of perfect predictability are more than rare. A test in law seeks to

define the parameters within which liability may be imposed, while it is the factual matrix for the application of a legal definition which

changes in a potentially almost infinite way from case to case; hence the divergence between practice and commentary. The close

connection analysis was adopted by the majority of this Court in O’Keeffe v. Hickey. Certainly, on the traditional Salmond test, no

school and no genuine religious order would authorise or endorse sexual predation on vulnerable children or adolescents, and while

such torts might be perpetrated by teachers, it did not follow that this, of itself, established a sufficiently close connection for the

transfer of liability to the employer. All depended upon an analysis of the particular circumstances. That continues to be the law.

Ultimately, the test to be applied is that set out by Fennelly J at page 378 of the judgment in O’Keeffe:

The close connection test is both well established by authority and practical in its content. It is essentially focussed on

the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are

intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability

on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the

entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent,

but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has

undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That

is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J.

[in Delahunty v South Eastern Health Board [2003] 4 IR 349] provides an excellent example of the practical and balanced

application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v.

Curry (1999) 174 DLR. (4th) 45 the employees of the care home were required to provide intimate physical care for the

residents. The sexual abuse was held to be closely connected.

36. In this case, the wrong suffered by Pádraig Hickey through the perverted attentions of ex-Brother Cosgrove were intimately

woven into the web of school life. As a pupil, he had but one teacher over that handful of years; the initial setting of abuse was in

the context of teaching a musical instrument, a task which requires gentle physical contact as to the proper approach to playing; the

sexual violence was continued in a classroom setting; it was most often perpetrated during actual teaching; and it was a pretence at

scholastic instruction. All of this establishes not authorisation or approbation, which is not essential to the vicarious sharing of liability

as between the tortfeasor and the employer, but rather a close connection between the task devolved to the wrongdoer and the

wrong complained of. While criminal and unauthorised, this predation was more than merely a setting for the individual wrong but,

instead, was actually made intrinsic to the work which the employee had been engaged to pursue.

Representative order

37. On a consideration of the transcript of the trial in the High Court, it is notable that, after Brother McGowan is mentioned on the

first line of the first day, 28th November 2012, there is silence as to who he is, his position and the structure within which he

operated throughout the entire trial. On appeal, all sides accepted that he is now the current head of the Marist Brothers in Ireland.

The lack of pre-trial procedures relevant to the issue of his status has already been commented upon. Order 15 rule 9 of the Rules of

the Superior Courts provides that in a case where there are “numerous persons having the same interest in one cause” then by order

of the High Court one of them take an action “or be authorised by the court to defend” for the benefit of or “on behalf … of all

persons concerned.” Order 4 rule 9 provides that where an action is taken or defended “in a representative capacity, the indorsement

shall show … in what capacity the plaintiff or defendant sues or is sued.” No such application was made. The statement of claim,

dated 31st July 2002, is not indorsed in that way but pleads that Brother McGowan “is sued in his capacity as head of the religious

order known as the Marist Brothers having its principal office at Moypark College, Clondalkin in the County of Dublin.” Whereas a

company is required by legislation to have a registered office, this plea may be taken as merely descriptive of an unincorporated body.

38. On occasion, enough may be done to include those outside a representative order schedule in an action or in the defence of one.

That is rare. The strictures in the Rules should be followed because then everything is clear to the parties. In Greene & Others v

Minister for Agriculture [1990] 2 IR 17, a group of 5 farmers objected to being excluded from being able to obtain certain payments

available under a rural regeneration scheme but pleaded that the action was taken in the name of “all farmers” in areas affected, in

particular those hundreds of farmers listed in a schedule supplied to the defendant minister. While the point was taken by the Minister

that a representative order was necessary, evidence as to who signed a petition urging the action and made a financial contribution

at meetings throughout the country sufficed for Murphy J to conclude that the action was brought on their behalf. In the event the

relief sought was refused and the case was settled on appeal. The limits of the evidence in this case have already been mentioned.

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

Unincorporated associations

39. Both sides on this appeal seem to agree that the Marist Brothers have not been incorporated into a company or into any other

legal entity recognised by law. It is possible that they now hold property and it is highly probable that in the past, in particular during

the dates when one of their number abused Pádraig Hickey, that this was also the situation. All that is known about the Marist

Brothers and what property they may own is what may be deduced from the necessarily sketchy evidence of Reverend Professor

Mullaney. Sketchy in the absence of any defendant testimony. He indicated that he knew nothing about whether the Marist Brothers

“is an incorporated association”. He was asked if they owned property and replied “I don’t know what they owned but … I would say

… by canon law they were entitled to own property as an Order, but I have no idea what they owned.” He was not even aware if

there was now an “Irish province” of the Marist Brothers. He pronounced himself as “indifferent to the specifics of the case”, but was

only testifying as an expert on canon law. Such an organisation “might decide to buy property or own property or hold money in

trust”, he agreed, by “setting up a juridical person in canon law.” That “would also have to be compatible [with] whatever is the

equivalent in civil law.” But, the normal position would be that “if you set one up in canon law you’d have to have something

corresponding in civil law, like a trust, for example. … It depends on the legal system you are in, yes.” Unfortunately, no evidence was

offered by the Marist Brothers as to who they were or how they organised themselves or as to their structure. No definite or

understandable comment in that regard was made by their legal representatives. Pre-trial correspondence and applications were non-

existent in this case. Consequently, no admission to clarify any such matter was sought in open correspondence.

40. Ó Néill J held Brother McGowan liable on the basis of reasoning derived from a case decided by the Supreme Court of the United

Kingdom shortly before the trial; Catholic Child Welfare Society & Ors. v. Various Claimants (FC) & Ors [2012] UKSC 56, [2013] 1 All

ER 670, [2013] 2 AC 1, and commonly called the CCWS case. There, several pupils at a boarding school run by the De La Salle

Brothers, a teaching order similar to the Marist Brothers, were sexually abused by some of their number. At the time the abuse took

place, the school had been a residential placement home for children in distress and the teaching brothers partly staffed it, with

supervision responsibilities over dormitories. The school owners, a charitable trust, had engaged the order to manage and teach at

the school. Obtaining an order against that trust satisfied the claimants. The trust was not content. As co-defendants with the

Order, it sought contribution from that unincorporated association of De La Salle Brothers. This failed at trial and in the Court of

Appeal but succeeded in the Supreme Court. At paragraph 20 of that case, Lord Phillips set out four propositions which were,

ultimately and after analysis, applied by Ó Néill J to this case. These were:

i) It is possible for an unincorporated association to be vicariously liable for the tortious acts of one or more of its

members: Heaton’s Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15, 99; Thomas v

National Union of Mineworkers (South Wales Area) [1986] Ch 20, 66-7; Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48;

[2003] 2 AC 366.

ii) D2 may be vicariously liable for the tortious act of D1 even though the act in question constitutes a violation of the

duty owed to D2 by D1 and even if the act in question is a criminal offence: Morris v CW Martin & Sons Ltd [1966] 1 QB

716; Dubai Aluminium; Brink’s Global Services v Igrox [2010] EWCA Civ; [2011] IRLR 343.

iii) Vicarious liability can even extend to liability for a criminal act of sexual assault: Lister v Hesley Hall [2001] UKHL 22;

[2002] 1 AC 215.

iv) It is possible for two different defendants, D2 and D3, each to be vicariously liable for the single tortious act of D1:

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151; [2006] QB 510.

41. Given that the law now accepts that vicarious liability can be established for a crime, but only after a close analysis of the

centrality of the wrong to the work engaged, the central issue becomes the liability imposed on Brother McGowan by the trial judge.

This raises the question of the liability of unincorporated associations and succession to that liability. It was submitted to the trial

judge, as it has been submitted on appeal, that liability can be established only against a person or a body having legal personality in

law, such as a company. It appears from the CCWS decision that the De La Salle Brothers operated through a body, called “the

Institute”, and it appears as well that counsel for that entity took no point “on the nature of the Institute.” Ó Néill J, even though

there was no such concession in this case, applied the following passage from the judgment of Lord Phillips at paragraphs 31 and 32

directly to the circumstances of the case before him:

I can appreciate [the] difficulty in accepting that a De La Salle brother in Australia could be vicariously liable for the

sexual assault by a brother at St William’s. Indeed, there is something paradoxical in the concept of an attempt to hold

vicariously liable a world wide association of religious brothers, all of whom have taken vows of poverty and so have no

resources of their own. So far as individual defendants are outside the jurisdiction this might also have given rise to an

interesting question of conflict of laws. This is, however, a long way from the realities of these proceedings and Lord

Faulks has not taken any point on the nature of the Institute.

It is open to the claimants on the pleadings to seek to establish vicarious liability on the part of an unincorporated

association made up at the relevant times of the brothers world wide, or of members of the London Province, or of the

England Province, or of the Great Britain Province. At the end of the day what is likely to matter will be access to the

funds held by the trusts, or to insurance effected by the trustees. Whether one looks at the picture world wide, or within

Great Britain, the salient features are the same. The Institute is not a contemplative order. The reason for its creation

and existence is to carry on an activity, namely giving a Christian education to boys. To perform that activity it owns and

manages schools in which its brothers teach, and it sends its brothers out to teach in schools managed by other bodies.

The Institute is, for administrative purposes divided into Provinces, each administered by its Provincial. To carry out its

activities it has formed trusts that have recognised legal personality. The trusts are funded in part from the earnings of

those brothers who receive payment for teaching. The trust funds are used to meet the needs of the brothers and the

financial requirements of the teaching mission.

42. Lord Phillips continued at paragraph 33 in seeming to accept that De La Salle Brothers in Australia were unlikely to be responsible

for what happened in the local school where the abuse was perpetrated in England. He said:

It seems to me more realistic to view the brothers of the Province from time to time responsible for the area in which

Market Weighton lies as members of the relevant unincorporated association rather than the Order as a whole, but I

doubt if it makes any difference in principle. Because of the manner in which the Institute carried on its affairs it is

appropriate to approach this case as if the Institute were a corporate body existing to perform the function of providing a

Christian education to boys, able to own property and, in fact, possessing substantial assets.

43. Applying that passage directly, at paragraphs 68 and 69 of his judgment, Ó Néill J held:

In my opinion, the foregoing passage from the judgment of Lord Philips, and in particular the last quoted paragraph, could

apply with little adaptation to the role of the Marist Brothers in this case. I find the reasoning of Lord Philips in this regard

compelling and I adopt it as necessary to arrive at a just outcome of the litigation. To hold otherwise, as submitted on

behalf of the first named defendant; that the Marist Brothers were merely an unincorporated band of individuals is to

ignore the reality of their true collective identity, to ignore their common purpose, to which each member is committed

individually and collectively on behalf of all of the Brothers; to ignore that for the purposes of carrying out their mission,

they necessarily acquire and manage property, no doubt held by trustees for the benefit of the congregation; that in their

necessary commercial dealings with the world at large, for example, in employing lay staff, in effecting insurance policies,

they must do so under the collective identity or personality of the Marist Congregation, albeit acting through trustees.

Having regard to all of this, is it right, when it comes to the issue of vicarious liability, that the well-known identity of the

Marist Congregation can simply disappear into the sands of unincorporated association? I do not think so. In my opinion,

the position of the first named defendant as Provincial of the Marists is to be seen, for the purposes of this litigation, as

representative of the province of the Marist Congregation in which St. John’s National School was located, and I would

follow the reasoning of Lord Philips in the CCWS case and hold that it is right to approach this case on the basis that the

Marist Brothers were a corporate body existing to perform the function of providing a Christian education to boys and that

the first named defendant is sued as a representative of that body, which is vicariously liable for the tortious acts of the

second named defendant.

44. The differences between the CCWS case and the present case were stark. What they have in common is the fact that the

tortfeasors were in each instance religious brothers bound by ties of obedience and poverty to an identifiable canonical body. In the

CCWS case, it had been proven at trial that the De La Salle Brothers had corporate features, “including a hierarchy of authority.” With

that feature, the Marist Brothers coalesce. The De La Salle Brothers were proven to have created “legal bodies that are capable of

owning property and entering into legal relations” in pursuit of their teaching mission. The structure of the order was described in the

CCWS case, and may be akin to the order in this case. It may be governed by a superior in Rome, or elsewhere, though this is not in

the evidence, and it may have groups administered locally. This again is not in the evidence beyond a question by counsel for the

Marist Brothers to the effect that there “is no Irish chapter”, to which no answer was given. When did that mean and why was there

no defence evidence about it? In the CCWS case, it was proven that under the vow of poverty, amounting to surrender of financial

autonomy to the superior, there had been set up “a 1947 trust relating to property held” for the London province and the British

province. There was also a “1953 trust relating to property held in connection with the England province”. A member of the De La

Salle order testified that brothers surrendering their salaries covenanted those earnings to the trust and that the trust had

substantial funds derived from “the sale of its properties and from the covenanted funds”. Thereafter it became part of the trust

functions to support the brothers in retirement or decline.

45. It seems probable that in this case as well there must be trusts. There must be property held by trusts and of necessity this

implies that there are trustees with obligations under trust deeds to the beneficiaries of the trusts. But who are these? What is the

nature of the trusts? It could be the present brothers, the past brothers or the pupils who are to benefit. There was no exploration. A

trust, absent statutory intervention, cannot under common law sue or be sued because it has no legal personality. While it is common

in law reports to have a group of individuals described as the trustees of a particular organisation, the suit giving rise to the case

relates to the obligations entered into by them on behalf of the beneficiaries and the discharge of or misfeasance of the duties they

have bound themselves into. Cases also exist where a trust is sued for what is done on its behalf. This entity, the Marist Brothers,

may be backed by a trust or by several trusts from that time but the order is an unincorporated association with all that implies in

law. An unincorporated association is defined in Conservative and Unionist Central Office v Burrell [1982] 2 All ER 1 at 4 as:

…two or more persons bound together for one or more common purposes, not being business purposes, by mutual

undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control

of it and its funds rests and upon what terms and which can be joined or left at will.

46. An unincorporated association has no legal status of itself but, like a trust, is capable of being proceeded against, or proceeding,

in law through its members. Hence, people resort to representative orders. Regarding the peculiar legal status of unincorporated

associations, Warburton on Unincorporated Associations (2nd Ed, London, 1992) at page 2 provides the following description:

An unincorporated association has no legal status apart from the members of which it is composed. No separate body with

limited liability comes into being on the formation of an unincorporated association...This does not mean that no legal

consequences follow from the founding of an unincorporated association. The members have duties and liabilities to each

other. The source of those duties and liabilities is partly the general law but mainly the [construction of the] rules of the

particular association.

47. Unincorporated associations are a broad category. They can encompass organisations ranging from a local chess or Gaelic Athletic

Association club to a highly organised institution like the Marist Brothers. The difficulty with this case is that, in practical terms, the

Marists Brothers seem to have many of the characteristics of an incorporated association; to the point where they resemble an

incorporated association more than they do a typical unincorporated association for sporting or recreational purposes. The

organisation most probably has a clear hierarchical structure, operates both nationally and internationally, it must own, or have

owned, land and, without making any impermissible assumptions or inferences, would possess far greater monetary resources and

obligations than small unincorporated associations. The order was also, in undertaking to provide primary education, engaging in an

activity that has a significant public dimension and which demands a degree of professionalism and responsibility, quite unlike most

unincorporated associations. In simple terms, the operation of the Marist Brothers must be far from a local hurling or bridge club, to

the extent that any legal rule which would treat both similarly for the purposes of vicarious liability has the potential of leading to

unfair outcomes. Any test that would seek to apply vicarious liability to unincorporated associations must take this distinction into

account.

48. Lord Phillips posits the proposition at paragraph 20 that an unincorporated association can be liable vicariously for the wrongs of

those acting for it. He seems to mean the association itself assuming corporate status while not being a corporation. That does not

represent the law. Where people group together to employ someone, are not incorporated, and that person negligently injures

someone, the members of the group can, however, be liable. That is different. This means no more than that members of a group

responsible at the time for the negligent organisation of an event share liability. That liability appears to be a present one and not a

continuing one. That is not to somehow incorporate a group, to give it legal personality. It is the individual members, not generally

those who succeed them, possibly subject to an observation as to corporation made later herein. So, a group or association is not like

a trust. Trustees can be succeeded, but the obligations under the trust deed remain and the trust property continues to be held. But,

a group of religious brothers bound by oaths may change as to membership, people may leave and as in really old cases of sexual

abuse, people will die or retreat into ill health. Of the cases cited by Lord Phillips for that proposition, vicarious liability was found

against a union in picketing in Thomas v National Union of Mineworkers [1985] 2 All ER 1 because of the actions of a local branch;

Heatons Transport Ltd v TGWU [1972] 3 All ER 101 was about liability of a union for the actions of a union official; and Dubai

Aluminum Co Ltd v Salaam and others [2003] 1 All ER 97 concerned the liability of a partnership. There is no analysis in these cases

of the liability of members of an association for the actions of a person who does something for them. Lord Phillips simply states the

principle but the cases do not support it by any statement of principle. As O’Donnell J also observes in his judgment in this case,

these are not examples of purely unincorporated associations.

49. There must, as a matter of ordinary logic, be occasions where unincorporated associations, consisting of the body of members of

the association, may become liable. Warburton states that the members of an unincorporated association may become liable where,

firstly, they are all carrying on the activities in question or, secondly, “where they are in overall control of activities being carried on

by some of the members.” The examples given are of Evans v Waitemata District Pony Club [1972] NZLR 733 where a club put on a

horse show but organised it negligently, thus allowing the plaintiff to be injured and Stone v Bolton [1950] 1 KB 201 where the Court

of Appeal acted on the assumption that members of a cricket club could be liable for a cricket ball injury in nuisance because of

occupation and the House of Lords, [1951] AC 850 in negligence. In the result, there was no liability because, according to Lord

Normand, "It is not the law that precautions must be taken against every peril that can be foreseen by the timorous." The party

charged with responsibility was the committee of the cricket club. There is no discussion in these cases as to the point on the nature

of the committee. Real authority is therefore thin but is supplemented by the analysis and authorities cited in the separate judgment

of O’Donnell J; see particularly the compelling analysis by Gannon J in Murphy v. Roche & Ors (No.2) [1987] 1 IR 656.

50. On first principles, however, a proposition of several people engaging another to do a job, but who acts negligently on behalf of

the group, is similar to an employment situation. The difference is that the employer is not a corporation or a person but is a group. If

three people decide to operate a green grocer’s shop and engage as part of their joint enterprise another person to sell their wares,

but that person contaminates the produce with bacteria, causing illness in consumers, no principle is identifiable whereby the three

operators of the shop may escape vicarious liability. In the cases cited, it was the committee of the cricket club or the horse

gymkhana that set up the situation who were variously made liable. In a club it is the same, though usually the actual organisers are

engaged.

51. As for the proposition put forward by Lord Phillips that an individual tortfeasor may have two masters, this may be so but it must

surely depend on control. It may not be so different to liability by a group in respect of a person engaged on a task for them,

supposing the employee and independent contractor issue is resolved in favour of the plaintiff. The test of control over the work of

the employee is, in a more specialised era, better expressed in terms of consideration of the issue of who has the authority to

organise the work, its rules, its direction and appropriate safeguards. All may be done properly by the employer but the employer may

nonetheless be liable because of the attribution of fault due to control. There may be situations where the employee is genuinely

under the control of two masters, but as control is the test, no facile resort to multiple liability is possible. Viasystems (Tyneside) Ltd

v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151; [2006] QB 510 is authority for the proposition that a worker on

a building site who causes a flood can be working for two separate contractors. It would follow that if an unincorporated association

can be liable for the actions of one who, in the course of fulfilling their instructions, acts negligently, there is no reason why two

employers cannot be charged with the responsibility for ensuring the proper working of an employee. The ordinary, and almost

invariable situation, is that as a matter of fact it will be clear that a particular worker is tasked to a particular job under the control of

what will be a clearly identifiable employer. That factual situation is not going to change save in rare circumstances.

52. Thus it is established that a plaintiff may sue a group who have employed a person on a task but where due to that person’s

misconduct or negligence the plaintiff is injured. Liability in that case is of the group jointly and severally for the tort vicariously

attributed to them. In O’Keeffe v Hickey, a principal issue was the liability of the State for sexual abuse perpetrated on the plaintiff by

a teacher when she was a pupil in a national school. The majority held that the State could not be liable because there existed no

sufficiently proximate relationship between the State and the teacher amounting to control. In his dissenting judgment at paragraph

180, Geoghegan J considered that “exemption from vicarious liability by the State is not just.”

53. This is the first case, certainly in this Court, where this point of no liability because of no incorporation has been raised. With

discovery, it might have been ascertained what assets were held by the Marist Brothers and through what legal vehicles. Those could

have been joined in the suit using the O’Byrne letter procedure; section 78 of the Courts of Justice Act 1936, but now there are

obligations such an initial letter under section 8 of the Civil Liability and Courts Act 2004.

54. What has gone before might usefully be summed up. A group, such as a club or a committee or a religious order, can employ or

engage a person in a quasi-employment relationship to work for them. The wrong of that person may make the entire group liable on

the same basis of vicarious responsibility as a corporation or other employer. The case law counsels swift action, however. The group

is unincorporated. So, it does not continue. With the passage of decades, considerations other than limitation of actions arise. New

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

predecessors. That is the nature of unincorporation: rights and liabilities do not continue despite people calling themselves the same

name. When they are gone, the liability is not passed on. An exception may arise, however, where one of the group on which

vicarious liability is imposed is a corporation sole, for instance a bishop. His successors may remain liable provided that the concept of

corporation sole is argued and found applicable. This reasoning dissents from that of O’Donnell J that an allegation against Brother

McGowan that he is now head of the Marist Brothers, equates to a plea that he, as the current head of that organisation, was a

member back in 1972 and is consequently vicariously liable. There surely would have to be a plea to that effect? There was not. If

there had been, surely Brother McGowan would have been on notice of this point and would have given evidence as to when he

joined the Marist Brothers. But, even still, ordinary fairness in procedure surely requires that Brother McGowan and Pádraig Hickey be

enabled to give evidence.

Corporation sole

55. Liability, on the other hand, if it exists, based on the continuation of responsibility from head of the Marist Brothers to head of the

Marist Brothers is consistent with the basis of suit. It may be that an exploration of the nature of the Marist Brothers will indicate

that its head can be recognised as a corporation sole. While on the hearing of this appeal, the argument centred on who Brother

McGowan was and how and whether he could be made liable, in O’Keeffe v Hickey the position of the school manager, a priest

appointed by the bishop patron as in this case, was discussed. In particular, there was a serious issue as to “why the Church was not

sued.” Geoghegan J records that the answer was a practical one of finding the personal representatives of the estates of the

manager and patron of the school liable because, as in this case, the passage of decades had seen them die before proceedings were

issued. The parents in the case had taken the advice of a journalist on the abuse being revealed by one small girl and after a boycott

after a heated meeting by parents, the abusing teacher had left the school to take a position elsewhere but no complaint was made

to the Department of Education or to the gardaí. These were different times. At paragraph 181, Geoghegan J commented:

I am not entirely convinced that in this day and age the fact that a bishop/patron is not a corporation sole should

necessarily preclude an action against the current bishop and execution against the diocesan assets. But none of that

arises here. I think there have been many cases in the past where actions have been brought against a diocese relating

to events that occurred under a former bishop and where a current bishop would not take the point either as a matter of

honour or because of insurance cover or both. But again none of that arises in this case.

56. That observation did not amount to a ruling that a bishop was not a corporation sole. The matter does not seem to have been

argued. This category of artificial persons had its origin in ecclesiastical law; see FW Maitland – The Corporation Sole (April, 1901)

LXIV LQR 335. Most often it is a bishop of a diocese but at common law it seems to be recognised that it can also be other clerics.

Some jurisdictions such as the United States continue to recognise the corporation sole; see James B O’ Hara – The Modern

Corporation Sole (1988) 93 Dick L Rev 23. The concept was imported at common law into that jurisdiction but has for centuries been

regulated by statute for the purpose of holding property and for the succession of rights of action or liability for civil wrongs

committed by its servants. Now, because of statutory recognition within the states of that union, corporations sole are entirely

creatures of statute and the common law concept has ceased; Wright v Morgan (1903) 191 US 55 at 59.

57. Nonetheless, within that jurisdiction corporations sole as applying to the Catholic Church were recognised at common law following

the Declaration of Independence. That had been the case in England, and by extension also in Ireland at least prior to the application

of the Reformation. Blackstone, in his Commentary on the Laws of England (1765-1769) at 457 distinguishes corporations sole from

corporations having “many persons united together into one society, and are kept up by a perpetual succession of members”.

Blackstone extends the scope of the concept outside that of the English monarch and bishops in the same passage:

Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law,

in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons

they could not have had. In this sense the king is a sole corporation: so is a bishop: so are some deans, and

prebendaries, distinct from their several chapters: and so is every parson and vicar.

58. It is to be noted that the early editions of Halsbury’s Laws of England, as of the time of Irish independence, follow that concept.

The second edition of that work, in 1933, just prior to the enactment of the Constitution, states that an “archbishop, a bishop, a

prebendary or cannon, a dean, an archdeacon, a parson, a vicar and a vicar choral are each a corporation sole.” It is an open

question if this law applies to the Catholic Church and in particular to persons exercising equivalent or parallel positions. With the

penal suppression of the Catholic Church in England and Ireland, legal recognition was expressly confined to the Anglican Church. Did

that change the law, making it possible only for Anglicans to have corporations sole and not Catholics? Could that really be the law of

this country? Is it possible that in disestablishing the Church of Ireland in 1871, the abolition of every ecclesiastical corporation also

accidentally applied to the Catholic Church? The principle against accidental alteration of the law may otherwise suggest; see

Bederev v Ireland & AG [2016] IESC 34. The utilitarian nature of the law at the time of Blackstone makes it clear that the necessity

for the institution means that it applied to the person as a corporation by reason of his nature and function:

[T]he necessity, or at least use, of this institution will be very apparent, if we consider the case of a parson of a church.

At the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage house, the

glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal

recompense to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever

afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in

the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be

liable to his debts and incumbrances; or, at best, the heir might be compellable, at some trouble and expense, to convey

these rights to the succeeding incumbent. The law, therefore, has wisely ordained, that the parson quatenus parson,

shall never die, any more than the king; by making him and his successors a corporation. By which means all the original

rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived

seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also.

59. Since the Anglican Church seems to have inherited the rights and obligations of the former church, the concept seems of general

application. Certainly, to exclude, as in the times of penal suppression, one church would not seem right. It has not been argued as to

whether this position continues to obtain under Bunreacht na hÉireann and in particular Article 50. Halsbury (5th edition, 2008) volume

24 at paragraph 314 states:

A corporation sole is a body politic, having perpetual succession, constituted in a single person, who, in right of some

office or function, has a capacity to take, purchase, hold and demise (and in some particular instances introduced by

statute, power to alienate) real property, and now, it would seem, also to take and hold personal property, to him and his

successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is

there may be, and often are, periods in the duration of a corporation sole, occurring irregularly, in which there is a

vacancy, or no one in existence in whom the corporation resides and is visibly represented. Unlike a corporation

aggregate, a corporation sole has a double capacity, namely its corporate capacity and its natural or individual capacity;

so that a conveyance to a corporation sole may be in either capacity.

60. Liability of Brother McGowan as a corporation sole succeeding to the liability of the head of the religious order when this abuse

was perpetrated, whether he is a corporation sole, if that legal entity continues in Irish law, cannot be decided now. It has not been

argued because the focus was on the failure to establish the liability of an unincorporated group. There can be liability on a set of

persons. That is not to make the group into a corporation. It is to acknowledge liability to the victim of a tort of those who organised

an employee or quasi-employee, a religious brother. That liability is against each person in the group as it then was. That liability does

not continue unless one of them is a corporation sole. Then it may, depending on the state of the evidence. On the state of the

evidence, the teaching by ex-Brother Cosgrove was for the Marist Brothers. There is now and there was then a head of that

unincorporated association. The head of the Marist Brothers had to be a member of the group in respect of whom vicarious liability

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

in Irish law. As this discussion illustrates, that concept is uncertain. That is a matter for argument in the High Court, or since the

majority disagree with a retrial and would simply uphold liability against Brother McGowan, a point for some other case.

Retrial

61. While the judgment and order of the High Court must be reversed, the issue arises as to whether there should be an order for a

retrial. Such a retrial would focus solely on the continuation of the concept of corporation sole in Irish law and its applicability to the

head of a religious order. It would leave in place the findings of vicarious liability upheld in this judgment. Such an order has been

sought by counsel for Pádraig Hickey in the event of the order of the trial judge not being upheld on appeal.

62. Order 58 rule 29 of the Rules of the Superior Courts, provides that subject “to the provisions of the Constitution and of statute”

the Supreme Court may “exercise or perform all the powers and duties of the court below” and “may give any judgment or make any

order which ought to have been made and may make any further or other order as the case requires.” The former rule was Order 58

rule 9, but there are no decided cases noted on the circumstances wherein this Court ought to order a retrial in Delaney and McGrath

– Civil Procedure in the Superior Courts (Third Edition, 2012, Dublin) at page 717. The matter is therefore one where this Court must

be guided by experience as to the right form of order to make in such a case.

63. No proper exploration was made as to the concept of corporation sole at trial in the High Court. This is despite the issue being

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

absence of argument. As it has been alleged in the High Court that Brother McGowan was sued as representative of the Marist

Brothers, that encapsulates an allegation that he is liable as part of the unincorporated group. If the concept of corporation sole

applies to the head of that order, and he is the successor, the liability from 1972 continues. It would not be right, however, for each

side to be deprived of an opportunity to argue this point. Further, it would not be appropriate for this Court to decide it, as it may

require evidence. But why, as with so much else, was it not previously argued and is it right to allow a retrial on this issue?

64. Experience suggests that the normal circumstance whereby a retrial of a specific issue is ordered on appeal is where an error of

law by a trial judge has resulted in an order that does not accord with law. Sometimes cases are sent back in that context for the

hearing of further evidence or submissions in order that a correct order may be made. Sometimes, as in this case, only a defined

portion of the case is reverted to the High Court. In the consideration of any such issue, the justice of the case must be the

touchstone by which a decision is made.

65. It may be argued that the consequences of the various steps taken in this case in the High Court should not be visited on Brother

McGowan or on the Marist Brothers. That argument may sound in costs, but in the wider context procedural wrangling cannot be

allowed to be productive of injustice. Litigation is not solely about the interplay of rules which carry little or no consequences, as in a

game. The results of litigation seriously affect the parties to that litigation and the legal system strives to afford relief not to those

who are best at its manipulation but rather to pursue the cause of justice. At all times the Marist Brothers knew that they were being

pursued for vicarious tort liability in respect of their former member, Christopher Cosgrove. As in other cases, the CCWS decision being

a case in point, it would have been possible for that order to have presented evidence with a view to assisting the judge as to a

proper determination. It is less than satisfactory for civil cases to be defended on the basis of some parallel with the right to silence

in criminal law.

66. There is a further point. The issues as to identity and succession to or continuation of liability have surfaced in other cases, most

particularly in O’Keeffe v Hickey. These issues are of high public importance. On this appeal, this Court cannot resolve them because

of the deficit of evidence available to the court. In addition, the matter should be argued at first instance. It is only by adducing such

evidence that this case may be properly resolved. The duty of the Court is to make such order as the case requires.

67. The matter should therefore be referred back to the High Court to that limited extent.

The Civil Liability Act

68. Ó Néill J reduced the damages in this case on the basis that the plaintiff ought to have pursued the school manager. The

argument presented was that the pursuit of the school manager would have yielded another party with liability to damages. The

argument made on behalf of Brother McGowan was that s. 35(1)(i) of the Civil Liability Act 1961 required that reduction. The section

provides that for “the purpose of determining contributory negligence”:

where the plaintiff's damage was caused by concurrent wrongdoers and the plaintiff's claim against one wrongdoer has

become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be

responsible for the acts of such wrongdoer;

69. On this point, the trial judge ruled at paragraph 75:

Whilst I am satisfied that in law, there can be dual vicarious liability in respect of tortious acts of another, in this case, I

am satisfied on the evidence that by far the greatest element of control over the teaching activities of the second named

defendant rested with his superiors in the Marist Congregation and the manager of the school had little or no role to play

in any of this. The manager did, however, retain his residual legal authority over the contractual arrangements between

the manager and the second named defendant, an authority which cannot be treated as negligible or a nullity. However, a

fair apportionment of liability and, it would seem to me that such an apportionment is necessary in this case to assess the

extent of the liability which the plaintiff must assume pursuant to s. 35(1)(i); must be of small degree. Thus, I would

assess the liability of the manager at 10% of the overall liability.

70. The Act of 1961 provides at s. 11 that “two or more persons are concurrent wrongdoers when both or all are wrongdoers and are

responsible to … the injured person … for the same damage.” Specifically that can occur through vicarious liability of one for another,

breach of joint duty, conspiracy, concerted action to a common end or independent acts causing the same damage” as per

subsection (2)(a). The wrong may be “a tort, breach of contract or breach of trust, or any combination of them” as per subsection

2(b). Under s. 12, concurrent wrongdoers are “each liable for the whole of the damage in respect of which they are concurrent

wrongdoers.” Liability may then be apportioned by a court “in such a manner as may be justified by the probabilities of the case”. The

rules dealing with apportionment of damages are set out in section 14. Contributory negligence is defined in section 34. Damages are

apportioned according to the degree of fault or, if this is not possible, equally.

71. Here a divergence occurs from the separate judgment of O’Donnell J. In dissenting on this point, it must be identified that the

order of Ó Néill J is founded on a clear finding of fact that the controllers of the school were the Marist Brothers. That finding of fact

is not to be disturbed. This is not a case where there can be two employers. With the passage of time, those with experience of

being a parent will know that the dangers ignored or pretended out of existence have now been addressed by the ‘Stay Safe Program’

for empowering children to realise the inviolability of their own bodies. As was commented by May LJ in Viasystems (Tyneside) Ltd v

Thermal Transfer (Northern) Ltd and others, it is usual in most cases for it to be obvious who, in terms of a possibility of a worker

having differing employers, was in charge of the work. As previously said in this judgment, cases where two groups of employers are

responsible for the one person are necessarily rare. This is not one of the cases. The school manager was on the evidence rarely

present in the school, had little to do with management and nothing to do with the day to day running of the school. Thus there is no

basis for the application of contributory fault to the manager in this case. A division of 50% responsibility to the present and the

absent defendants therefore does not arise. An employer was clearly identifiable from the evidence.

Damages and contribution

72. O’Donnell J reasons for the reduction in damages to €150,000 and that figure reflects the nature of the case and the limits placed

elsewhere on general damages. On the analysis in this judgment diverging from the proposition that two employers are not identifiable

in this case, that figure should not be reduced by 50%. Even if two employers were identifiable, fault should not automatically be

50/50 but on the basis of the contribution to the wrong. Here, on this analysis, it would be to the complete exclusion of the nominal

employer, because in effect he had nothing to do with this. Thus liability would be 100%

Order

73. There is substantial concurrence, but a few important areas of disagreement, in this judgment with that of O’Donnell J. In order to

clarify where the accord lies and where divergence should be identified, the following observations are made, for the sake of clarity,

based on the reasoning herein:

1. The judgment of Ó Néill J in the High Court cannot be upheld on the basis he reasoned as to the liability of a religious

order, as this makes an unincorporated association into what is in effect an incorporated entity with succession to liability

no matter what change of membership, O’Donnell J and the majority of the Court concur;

2. Depending on the circumstances, those running a school or educational establishment may be liable when a teacher

sexually assaults a child, O’Donnell J and the majority concur;

3. An unincorporated association can be liable in damages through it members and the members can be vicariously liable

for actions done in the course of a task assigned by the members, including abuse during teaching, but that liability is of

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

liable, O’Donnell J and the majority concur;

4. Since an unincorporated association can have liability for the actions of its employees, the individual members of the

Marist Brothers in Ireland as of 1972 are liable for sexual abuse perpetrated by one of their number while acting on their

behalf as a teacher, O’Donnell J and the majority concur;

5. As to the liability of the members of this unincorporated group, Brother McGowan was not proved, and was not alleged

in pleadings or in evidence, to have been a member of that order at that time when the abuse was committed and the

burden of proof is on the plaintiff, and that fact should have been alleged in order to enable contrary evidence from

Brother McGowan, fair procedures, but here there is neither pleading nor positive evidence to that effect, dissenting from

O’Donnell J and the majority who would uphold the High Court judgment on the basis explained in his judgment;

6. Reduce damages to €150,000 in order to keep damages within a rational range in the context of the maximum available

for the worst personal injury cases, concurring with O’Donnell J and the majority;

7. While in some instances of employment, there may be two employers, O’Donnell J and the majority concur, here, on this

evidence, there is only one – namely the Marist Brothers, not the manager of the school, dissenting from O’Donnell J and

the majority;

8. It follows that the amount of damages cannot be reduced under the Civil Liability Act, dissenting from O’Donnell J and

the majority;

9. The head of the Marist Brothers in Ireland may be a corporation sole. If so, since in 1972 the head was part of the

unincorporated group, his liability may continue, but this point is obiter as are any comments by O’Donnell J on this issue;

10. There should be a retrial in the High Court, but not as to the liability of those running a group of teachers, a religious

order which is more than equivalent to an employment relationship, one of whom abuses a pupil, that is decided herein,

nor as to the particular liability of the abuser, that is decided, nor as the liability of members of an unincorporated group

or association one of whom abuses a child sexually in the course of duties assigned by the members, that liability is

possible and is decided herein, but solely on the narrow point as to whether the legal personality or corporation sole is

part of Irish law and whether it applies to Brother McGowan as successor to the head of the Marist Brothers in Ireland,

O’Donnell J would uphold the judgment of the High Court on the narrow basis set out in his judgment from which, on that

specific point, this judgment dissents;

11. Liability of a corporation sole and the position of the head of the Marist Brothers should be the only point retried in

the High Court by way of evidence and legal argument, but there should be a retrial in respect of that, O’Donnell J and

the majority would not order a retrial since his position is to uphold liability based on his contrary analysis on point 5.