Title:	J.G.H. -v- Residential Institutions Review Committee & anor
Neutral Citation:	[2017] IESC 69
Supreme Court Record Number:	23/2016
Court of Appeal Record Number:	2014/1342
High Court Record Number:	N/A
Date of Delivery:	10/24/2017
Court:	Supreme Court
Composition of Court:	Clarke C.J., O'Donnell Donal J., MacMenamin J., Dunne J., O'Malley Iseult J.
Judgment by:	Clarke C.J.
Status:	Approved
Result:	Appeal allowed
Judgments by Link to Judgment Concurring Dissenting Clarke C.J. Link MacMenamin J., Dunne J., O'Malley Iseult J. O'Donnell Donal J. O'Donnell Donal J. Link

THE SUPREME COURT

Between/

1. Introduction
1.1 The scheme to provide redress in relation to the harm suffered by so many in residential institutions over the years represented an important part of the way in which the State has sought to address the grave problems which began to come into the public domain over the last 20 years or so. The Commission to Inquire into Child Abuse also represented an important part of the State’s response. However, the Residential Institutions Redress Act, 2002 (“the 2002 Act”) provided for a scheme of compensation for those who had been resident in certain residential institutions which are specified in that legislation.

1.2 This appeal concerns one question of statutory interpretation which has at least the potential to make a significant difference to the circumstances of the applicant/appellant (“Mr. H.”). Mr. H. applied, under the terms of the 2002 Act, to the notice party (“the Redress Board”), which made a relatively small award in his favour. Thereafter, again in accordance with the terms of the 2002 Act, Mr. H. sought a review by the respondent (“the Review Committee”). For present purposes it is sufficient to note that the Review Committee did increase the award of compensation to Mr. H. but it appears to be accepted that it did not award him compensation in respect of injuries suffered by him while he was in a nursing home (“the Nursing Home”). It is that issue which lies at the heart of these proceedings and this appeal. It should be noted in passing that, by virtue of s. 28(6) of the 2002 Act, no information should be revealed which might identify either a claimant under the 2002 Act or any relevant institution.

1.3 Mr. H. had been resident in a Hospital (“the Hospital”). As a result of what would appear to have been accepted to be a misdiagnosis he was transferred to the Nursing Home. The Review Committee accepted that his transfer in those circumstances amounted to abuse within the broad definition of that term which is provided for in the 2002 Act. While in the Nursing Home Mr. H. was subject to a regime which was particularly harsh. The doctor in the Hospital who had, in substance, arranged for the transfer of Mr. H. to the Nursing Home was also in charge of the regime in that latter institution and so would have been fully aware of the regime which Mr. H. was likely to suffer on transfer. However, unlike the Hospital, the Nursing Home is not an institution covered by the 2002 Act. In those circumstances an issue arose as to whether the injuries suffered by Mr. H., as a consequence of the decision taken in the Hospital to send him to the Nursing Home but which actually occurred while he was in the Nursing Home, came within the scope of the 2002 Act. It was against that backdrop that Mr. H. brought these proceedings.

2. The Proceedings to Date
2.1 Mr. H. commenced judicial review proceedings in which he principally sought an order of certiorari in respect of the Review Committee’s decision on the basis of an assertion that the Review Committee was wrong in law not to award him compensation in respect of the relevant events which occurred at the Nursing Home. On the 16th July, 2014 Kearns P., in the High Court, determined that Mr. H. was entitled to an award under the 2002 Act in respect of injuries suffered while in the Nursing Home and made an order of certiorari quashing the decision of the Review Committee and remitting the matter back to that Committee for further consideration. (See ex tempore judgment of the High Court (unreported, Kearns P., 16th July, 2014)).

2.2 The Review Committee appealed against that decision to the Court of Appeal. On the 9th December, 2015, the Court of Appeal (through judgments of Kelly and Hogan JJ.) set out the reasons for allowing the appeal of the Review Committee and discharged the order of certiorari. (JGH v. Residential Institutions Redress Review Committee (2015) IECA 285).

2.3 Thereafter Mr. H. sought leave to appeal from the decision of the Court of Appeal to this Court under Art. 34.5.3 of the Constitution. By a determination made on the 14th December, 2016, (JGH v. Residential Institutions Redress Review Committee (2016) IESC DET 148) this Court gave leave to pursue such an appeal in respect of the following questions:-

“1. Could a decision by a scheduled institution as prescribed by the 2002 Act to transfer a child to a non-scheduled institution constitute abuse within the meaning of the Residential Institutions Redress Act 2002?

2. In making a determination that such a decision constituted abuse within the meaning of the Act, was the Respondent entitled to apply common law principles of negligence including the principle of forseeability, having regard to


(a) the definition of abuse in s. 1 of the Act, which includes “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child”, and

(b) the prohibition on addressing or making findings relating to any issue of fault or negligence set out in s.5 of the Act?”

3. The High Court and the Court of Appeal
3.1 Kearns P., in the High Court, came to the conclusion that what happened to Mr. H. in the Nursing Home amounted to abuse as that term is defined in the legislation. Neither of the judgments of the Court of Appeal disagreed with that finding and there is no appeal before this Court on that issue. Therefore, this judgment must operate on the basis that what happened to Mr. H. in the Nursing Home does constitute abuse for the purposes of the 2002 Act.

3.2 However, as both the High Court and the Court of Appeal judgments acknowledge, there is a second question which is as to whether injuries resulting from that undoubted abuse can be said to be compensatable under the terms of the 2002 Act given that the Nursing Home is not one of the institutions which are specified in the Schedule to that Act. It was on the proper interpretation of the legislation in that regard and its application to the facts of Mr. H’s case that the High Court and the Court of Appeal disagreed.

3.3 It also requires to be recalled that at all material times there was a finding that the decision to send Mr. H. to the Nursing Home was as a result of a misdiagnosis and that same amounted to abuse within the very broad definition of that term which is to be found in the 2002 Act. There is no challenge to that finding at this stage. The High Court, therefore, proceeded, quite correctly, on the basis that the decision to send Mr. H. to the Nursing Home amounted to abuse but then went on to consider the question of whether the injuries suffered by Mr. H. while in the Nursing Home were compensatable under the 2002 Act having regard to the fact that the Nursing Home itself was not, as has already been pointed out, a scheduled institution.

3.4 Kearns P. posed the question in the following way:-

“Is the connection between a wrongful act and its sequelae severed in this case by the express terminology of the Act in such a way as to foreclose on this particular applicant and confine him to such rights as he may have had whilst a patient in (the Hospital)?”

3.5 However, the Court of Appeal took a different view of the proper interpretation of the legislation concerned. As both judgments of that Court make clear, the entitlement to compensation under the scheme established by the 2002 Act is dependent on meeting the criteria which the Oireachtas has specified in that legislation. Thus, as the Court of Appeal pointed out, claimants either meet or do not meet the statutory criteria so that the entitlement of any claimant either to compensation generally or, as in this case, to compensation in respect of a particular injury, is dependent only on whether the statutory criteria are met in the particular circumstances of the case in question.

3.6 Both Kelly and Hogan JJ. came to the view that, on a proper interpretation of the legislation, it was necessary that the injuries in respect of which compensation could properly be awarded had to be incurred while the claimant was resident in the scheduled institution concerned. On that basis, it was held that injuries suffered in an institution which was not a scheduled institution and while the claimant was no longer resident in a scheduled institution were not compensatable even if there was some foreseeable connection between the injuries suffered and abuse which took place in the relevant scheduled institution.

3.7 Thus, the key difference between the judgments of the two courts below, and indeed the key difference in the submissions made to this Court, centred on the proper interpretation of the legislation and in particular whether it can, as the Review Committee argues, be taken to confine compensation by excluding from its remit injuries suffered after a person ceased to be resident in a particular scheduled institution even where those injuries can be said to have been a foreseeable consequence of the transfer of the person concerned to a different, non scheduled, institution and where the transfer itself has been held to amount to technical abuse for the purposes of the 2002 Act.

3.8 As the argument developed, that, in reality, was the net issue which the Court had to address. However, in the context of that general issue of construction, a further point was made on behalf of Mr. H. which was concerned with the proper approach which this Court should adopt to construing the 2002 Act. For that reason it is appropriate to turn first to that question before going on to analyse the issues which arose in respect of the proper construction of the 2002 Act itself.

4. The Proper Approach to the Construction of the 2002 Act
4.1 This Court has already expressed the view that the 2002 Act is remedial in nature and is to be interpreted on that basis: see A O’G v Residential Institutions Redress Board (2015) IESC 41. On that basis Hogan J. in the Court of Appeal in J. McE v Residential Institutions Redress Board (2016) IECA 17, suggested that it followed that the 2002 Act should be construed as widely and liberally as can fairly be done by reference to the observations of Walsh J. in Bank of Ireland v Purcell (1989) I.R. 327 at page 333.

4.2 The Court of Appeal accepted that such was the proper approach to the interpretation of the 2002 Act for the purposes of this case, with Kelly J. citing the observation of Denham C.J. in A O’G. Nor did I understand counsel for the Review Committee to argue otherwise. I agree, therefore, that the proper approach to statutory interpretation for the purposes of resolving any questions of difficulty in construing the ambit of the 2002 Act is to adopt the approach identified by Hogan J. in J. McE and to construe the Act as widely and liberally as can fairly be done. But there are, of course, two elements to that description. The legislation should be given a generous interpretation in favour of affording compensation because that was the clear intent of the Oireachtas. However, in so doing the Court can only adopt an interpretation which can be said fairly to arise on the wording of the legislation itself. To go beyond a meaning which can fairly be attributed would be to impose a liability on the State which it could not properly be said that the Oireachtas intended to accept.

4.3 The backdrop to that aspect of the debate must involve an acknowledgement that the criteria for the grant of compensation under the 2002 Act are themselves generous towards applicants. There are, undoubtedly, very strong reasons of policy why such an approach should have been adopted. The abuse which undoubtedly occurred in residential institutions frequently left those who suffered from such abuse in very vulnerable positions. The passage of time would have made it quite difficult to establish precise facts in a court applying ordinary rules of evidence. While there undoubtedly would have been cases where applicants could have succeeded before the Courts in bringing claims based on well established legal principles, many applicants might have found difficulty in that regard. Doubtless the reasoning of the Oireachtas in putting in place the scheme which is to be found in the 2002 Act took those factors into account. The scheme does not, therefore, require applicants, for example, to establish on the balance of probabilities that they suffered abuse, but rather an applicant is only required to establish an injury which is consistent with abuse occurring while the applicant was resident in a scheduled institution.

4.4 However, in adopting that broad approach to the question of compensation the Oireachtas clearly applied some limitations which, again doubtless for good reasons of policy, were considered necessary to ensure some reasonable cap to the overall cost of the scheme. Claims are, at least in general terms, confined to institutions which have been scheduled under the 2002 Act. There would be no remit for a Court, even exercising a generous or liberal approach to the interpretation of that Act, to extend its remit to institutions which are not scheduled even though there might, on the merits, be an argument in favour of a relevant institution having been included. Likewise, the 2002 Act provides for certain time limits which have been the subject of some of the case law to which reference has already been made. While the Courts have, having regard to the remedial nature of the legislation, taken a generous approach to the interpretation of those time limits, it could not be suggested that they could simply be ignored.

4.5 The underlying principle behind the proper approach to the interpretation of remedial legislation is that it must be assumed that the Oireachtas, having decided that it is appropriate to apply public funds to compensate a particular category of persons, did not intend that potentially qualifying applicants would be excluded on narrow or technical grounds, for that would be wholly inconsistent with the purpose of the legislation. On the other hand the Oireachtas is entitled, when deciding to apply public funds in a particular way, to define, within constitutional bounds, the limits of any scheme which it is decided should be put in place. Where that scheme is remedial, Courts should not be narrow or technical in interpreting those bounds but they should not be ignored either. Against that backdrop I turn to the specific issues of interpretation which arise on this appeal.

5. The 2002 Act
5.1 Before going on to consider the specific provisions of the legislation which impact on the issue which arises on this appeal, there are a number of matters with which it may be useful to deal at this point on the basis that they do not really give rise to any controversy.

5.2 First, it should be acknowledged that the legislation does not on any view confine compensation to cases where the abuse or injury in respect of which that compensation is to be awarded actually occurred within a relevant scheduled institution. It will be necessary to turn to what is, perhaps, the principal operative section of the 2002 Act, being s. 7, in due course. However, the scheme of s. 7(1) requires that a relevant claimant must assert that “he or she was injured while so resident” with the reference to resident being to “resident in an institution during his childhood” as provided for in subsection (b). Thus the underlying condition is that there be an allegation of having been injured while “resident” in an institution. The section does not require that the actual injury itself occur in the institution.

5.3 This view is further strengthened by s. 1(2) which provides as follows:-

“References in this Act to abuse of children in institutions or which occurred in institutions include references to any case in which abuse of a child took place, not in an institution, but while the child was residing or being cared for in an institution and the abuse was committed or aided, abetted, counselled of procured by, or otherwise contributed to by an act or omission of, a person engaged in the management, administration, operation, supervision or regulation of the institution or a person otherwise employed in or associated with the institution.”

5.5 Thus, there would be no difficulty in a straightforward case where a child, who was resident in an institution, was abused, for example, by an employee of that institution while away on a trip or, indeed, where, due to the negligence of a manager, such a child was placed in a situation of danger which allowed them to suffer a relevant injury outside the institution itself. Such issues do not arise on the facts of this case but it is important to make clear that the legislation does not narrowly confine the compensation scheme to cases where the actual injury or abuse physically occurred within the institution concerned.

5.6 The second point to note is that there can be little doubt but that if one were to apply the ordinary legal principles which govern liability for damages in, for example, tort, then injuries of the sort which are involved in this appeal would undoubtedly be compensatable. A person who, through their negligence, allowed another person to whom they owed a duty of care to be moved into an institution where the person concerned was aware that they would be likely to suffer injury would undoubtedly be liable to compensate for such injuries. The fact that the injuries did not occur as a direct result of the person’s negligence, but rather were a foreseeable consequence of that negligence, would nonetheless bring those injuries within the scope of the proper assessment of compensation.

5.7 It follows that a person, such as Mr. H, would undoubtedly be able to claim damages for injuries suffered in the Nursing Home if they were in a position to establish a civil wrong against a defendant which lead to them suffering foreseeable injuries in the Nursing Home even though the wrong occurred somewhere else.

5.8 However, the real question which lies at the heart of this appeal is as to whether the wording of the 2002 Act is such that it would make it inappropriate to adopt an approach to the scope of compensation which included such claims, on the basis that such claims cannot be said to be fairly open even on a generous or liberal approach to the construction of the relevant provisions of the 2002 Act.

5.9 That leads to a consideration of s. 7 of the Act which provides as follows:-

“7(1) Where a person who makes an application (an “applicant”) for an award to the Board establishes to the satisfaction of the Board –

(a) proof of his or her identity,

(b) that he or she was resident in an institution during his or her childhood, and

(c) that he or she was injured while so resident and that injury is consistent with any abuse that is alleged to have occurred while so resident,

the Board shall make an award to that person in accordance with section 13(1)”

“When making an application the applicant shall provide the Board with evidence of –

(a) his or her identify,

(b) residence at the institution concerned,

(c) the abuse received while so resident, and

(d) the injury received as a consequence of such abuse.”

“When considering an application under this Act the Board –

(a) shall not address any issue of fault or negligence arising out of evidence given in an application under this Act, and

(b) shall not make a finding of fact relating to fault or negligence referred to in paragraph (a).”

5.12 There are also certain other provisions of the 2002 Act which one or other side suggested might have some bearing on the proper approach to construction. Nonetheless, it seems to me that the two key sections are sections 7(1) and 10(4). If one were to look at s. 7(1) entirely on its own then there would, in my view, be a strong case for the argument advanced on behalf of the Review Committee. Section 7(1) speaks of the injuries for which compensation is to be paid occurring while the claimant was resident in a relevant institution. On that basis it is argued, as the Court of Appeal accepted, that the legislation excludes compensation for any injuries which occurred after the claimant had ceased to be resident in the institution concerned. In that context it is appropriate, also, to make clear that the argument put forward on behalf of the Review Committee did not suggest that it was inappropriate to take into account the continuing consequences of an injury actually suffered while the claimant was resident in the relevant institution. Clearly there were many cases where those who were resident in such institutions suffered very long term consequences, not least psychological and psychiatric problems, which were as a result of injuries suffered by them at the time when they were resident. However, the distinction which the Review Committee seeks to urge on the Court is that there is a difference between the consequences of an injury actually first suffered while resident in an institution, on the one hand, and an injury suffered after the claimant had ceased to be a resident in an institution, on the other hand, even though there might, as on the facts of this case, be a causal connection between the injury concerned and actions taken while resident in the institution in question.

5.13 As noted earlier, if one looked at s. 7(1) in isolation and applied ordinary principles of construction there might well be a strong argument for the interpretation which the Review Committee seeks to place on the legislation as a whole. However, it seems to me that it is important also to have regard to the fact that s. 10(4) requires an applicant to include evidence of “the injury received as a consequence of such abuse” when making an application. Clearly there would be little point in requiring an applicant to supply evidence unless it were considered that such evidence might be material to the final decision of the Board. Thus, s. 10(4) might be taken to imply that compensation was available in respect of any injury received as a consequence of abuse even where the relevant injury occurred after the applicant had ceased to be resident in the institution concerned. It might, of course, be said, as was argued by the Review Committee, that s. 10(4)(d) was simply designed to require an applicant to supply evidence of any consequences of abuse and could not be taken to extend the scope of the injuries which were amenable to compensation as a result of what was argued to be the clear wording of section 7.

5.14 There might well be an argument that, applying ordinary principles of construction to the legislation as a whole, s. 10(4) would have to yield to s. 7(1) given that the principal section which defines the limits of compensation might be said to be section 7(1). However, it seems to me that s. 10(4) at least creates a significant doubt as to whether the legislation as a whole demonstrates a clear intention on the part of the Oireachtas to exclude from compensation injuries suffered by a claimant as a consequence of abuse even where the injury concerned occurred after the claimant had ceased to be a resident in a scheduled institution.

5.15 For the reasons analysed earlier I am satisfied that it is appropriate, consistent with the previous jurisprudence of this and other Courts, to adopt a generous or liberal approach to this undoubtedly remedial legislation. If I was satisfied that the intention of the Oireachtas was to exclude consequential injuries occurring after a claimant had ceased to be resident in a scheduled institution, then it would follow that it would be necessary also to conclude that an interpretation which permitted compensation in such cases could not fairly be said to arise on the wording of the legislation itself, and thus such an interpretation would not be permissible. However, I am not, for the reasons which I have set out, satisfied that such a clear intent of the Oireachtas can be discerned from the legislation as a whole and in particular have come to that view because a clear intent to exclude such injuries seems to me to be inconsistent with s. 10(4).

5.16 In those circumstances I would, therefore, conclude that the proper construction of the legislation as a whole allows for the payment of compensation in cases where the claimant suffers injuries after the claimant has ceased to be a resident in a scheduled institution but where the injuries concerned can be found to be a foreseeable consequence of abuse occurring while the claimant was so resident. It being accepted that the Review Committee did not, in the circumstances of this case, award Mr. H. damages arising out of the injuries suffered in the Nursing Home, it seems to me that the Review Committee was in error.

6. Conclusion
6.1 In those circumstances I would propose that this Court should allow the appeal of Mr. H. against the decision of the Court of Appeal and should direct that the matter be referred back to the Review Committee to determine the appropriate amount of compensation to be paid to Mr. H. on the basis that such compensation should be calculated by including appropriate compensation for any foreseeable injury, arising out of abuse occurring in the Hospital, which was suffered by Mr. H. while in the Nursing Home.

6.2 In doing so I have come to the view, for the reasons already analysed, that the proper approach to the construction of this legislation is to adopt a generous or liberal approach having regard to the remedial nature of the legislation concerned. While a narrow or more technical approach to its construction might arguably lead to the interpretation urged on behalf of the Review Committee, I am not satisfied that the intention of the Oireachtas to exclude compensation in cases such as this is sufficiently clear that it would be unfair or inappropriate to adopt such a broad interpretation.