The Supreme Court has ruled a man who was “systematically” sexually abused by a Marist while a national school pupil is entitled to €75,000 damages against the brother’s order.
The four to one majority ruling concerning vicarious liability of religious orders for sexual abuse by their members may have implications for religious orders and other unincorporated associations.
The High Court found the man, now in his 50s, was abused by his teacher, then Marist Brother Christopher Cosgrove, of Claremorris, Co Mayo, at St John's School, Sligo, between 1969 and 1972.
It accepted the man gave a truthful account of his rediscovery of memory of the abuse between 1999 and 2010 and “entirely rejected” Cosgrove’s denial of abuse.
It heard evidence from former classmates of the man, one of whom described reaching “a point of unbearable revulsion” after seeing the boy held on Brother Cosgrove’s knee and “weeping inconsolably” while his genitalia were fondled through the open front of his trousers.
The High Court found the man suffered severe post-traumatic stress disorder characterised initially by “extreme avoidance”, had no settled career or settled home life and the abuse “greatly impaired” his life.
It assessed €350,000 damages, cut to €315,000 because of the man’s failure to sue the employer of his abuser. It awarded the €315,000 against Cosgrove and the present provincial of the order on the basis the latter was vicariously liable for Cosgrove’s acts as a teacher.
Appeal
Because the man failed to sue Cosgrove’s employer – the local manager of the school, parish priest Canon Collins – and was now out of time to do so, the court held, under the Civil Liability Act, the man was responsible for the acts of the manager and assessed that liability as 10 per cent, resulting in the €350,000 sum being cut to €315,000.
The provincial appealed to the Supreme Court against the finding of vicarious liability and the amount and division of the award. No appeal was brought by Cosgrove and the man cross-appealed the cut in the award.
Given the Supreme Court’s majority judgment, Mr Justice Donal O’Donnell held a religious order is an unincorporated association whose members are vicariously liable for acts of a fellow member.
The Marist order, along with the local manager, were running the school between 1969 and 1972 when the man was abused by Cosgrove, he found. Because the provincial failed to call evidence whether or not he was a member of the order at the time, the court would uphold the finding of vicarious liability against the provincial, he said.
He allowed the appeal against the amount of the award for reasons including, while a “distressing”, “significant and serious” case of abuse, it was “not at the most extreme end of the scale”.
He reduced the overall award to €150,000, dividing liability for that 50/50 between the provincial and the man due to his failure to sue the manager. The effect was the provincial is liable for €75,000.
A religious order, the court agreed, is an unincorporated association, a body created by agreement of members, and not a “corporation”. Rejecting arguments that members of an unincorporated association are not vicariously liable for acts of another member, the court held vicarious liability can arise when a number of people group together and task someone to do an act that is negligently performed. Particular cases will depend on their individual facts.
A current member of an unincorporated association is not vicariously liable for the acts of another member done before the current member joined, it held. Rules of an association may allocate liability internally, it also noted.
Mr Justice Peter Charleton disagreed with the finding of vicarious liability against the provincial for reasons including it had not been alleged or proven the provincial was even a member of the order at the time of Cosgrove's abuse. He also disagreed the school was run both by the order and school manager.
