Supporting Documents:
An Chúirt Uachtarach
The Supreme Court
DETERMINATION
Between:
JHG
Applicant
AND
The Residential Institutions Redress Review Committee Respondent
AND
The Residential Institutions Redress Board
Notice Party
APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION
RESULT: The Court makes an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 9th of December 2015.
REASONS:
1. This determination concerns a decision of the Court of Appeal made on 9th December 2015; Kelly, Hogan and Edwards JJ [2015] IECA 285. That decision overturned the High Court decision of Kearns P, which quashed a decision of the Residential Institutions Review Committee by reason of the failure and or omission to award any points for the abuse3 that the Applicant suffered in St. Gabriel’s Hospital, a non- scheduled hospital, having been transferred there from the National Children’s Hospital, a scheduled Hospital. The matter was remitted back to the Residential Institutions Redress Board for an award in accordance with the provisions of the Residential Institutions Redress Act 2002. The Court of Appeal allowed the appeal on behalf of the Respondent in a written judgment of the 9th December 2015 of Kelly J. and a concurring judgment of Hogan J. The Applicant now seeks leave to appeal from the Judgments and Order of the Court of Appeal.
2. The background facts are complex. But, the Court of Appeal, in the judgment of Kelly J, fairly summarised the essential nature of what the applicant Mr H had gone through. What follows is taken from the Court of Appeal judgment:
2. The applicant (Mr. H) was born on 10th January 1960. In late 1961 and early 1962, he was a patient in and resident at the National Children’s Hospital, Harcourt Street, Dublin. He was suspected of having rheumatic fever. In 1962, he was transferred from there to St. Gabriel’s’ Hospital in Cabinteely where he remained until May 1964. He was again in Harcourt Street Hospital from 21st August 1964, until 10th September 1964, when he was again transferred to St. Gabriel’s where he remained until September 1965.
3. The transfer from Harcourt Street Hospital to St. Gabriel’s was directed by Dr. [AB], who was a paediatrician in Harcourt Street Hospital and was also the clinician in charge at St. Gabriel’s.
4. St. Gabriel’s hospital was founded in 1951 as a special voluntary hospital for rheumatic heart disease. It was a private institution.
5. There is no issue but that Mr. H suffered substantial abuse in St. Gabriel’s Hospital by inter alia being sedated and confined to bed and kept immobile for long periods of time.
6. On the uncontested evidence of Dr. Elliot Shinebourne, a consultant paediatric cardiologist, Mr. H’s transfer to St. Gabriel’s was unnecessary on each of the occasions that he was moved there. This was because there was no definite evidence of rheumatic fever. Furthermore, the treatment to which he was subjected in St. Gabriel’s had no scientific justification and was heterodox even by the standards of that time. Dr. Shinebourne expressed the view that the management of Mr. H in St. Gabriel’s was unacceptable and would not have been condoned by any responsible paediatrician or paediatric cardiologist at that time.
7. There can be no doubt that the abuse of Mr. H whilst in St. Gabriel’s Hospital was significant.
8. Harcourt Street Children’s Hospital and St. Gabriel’s Hospital were two entirely different institutions. The one connection between the two was Dr. [AB]. Having decided to transfer Mr. H to St. Gabriel’s, he remained under her care at that hospital. As the clinician in charge there, she must have been aware of the practices that were carried on including the confinement of young children in a sedated state for protracted periods of time. It was as a result of the abuse suffered by Mr. H that he brought a claim for compensation pursuant to the provisions of the Residential Institutions Redress Act 2002 (the Act).
3. This is relevant because the essential claim of the applicant Mr H to redress under the 2002 Act was based on the claim that by deciding to transfer him from the scheduled hospital, allowing compensation under the Act, namely the Harcourt Street Children’s Hospital, to Saint Gabriel’s Hospital, liability arose.
4. This hinged essentially on statutory interpretation. In the 2002 Act, compensation for abuse of those in scheduled residential institutions is within the purview of the Residential Institutions Redress Board, but with the Committee acting as an appellate body. Abuse is defined widely and what happened to Mr H in Saint Gabriel’s fits within the definition. Saint Gabriel’s, according to the Court of Appeal decision, does not fit within the scheme of compensation for residents. This is a simple matter of what is in the Act or not. But, in addition, it was claimed on behalf of Mr H that by referring him from one hospital to another, the scheduled hospital became liable.
5. This argument was based on s. 1(2) of the 2002 Act, but was said to be bolstered by context, under the principle of reading the text of legislation in context. The relevant subsection reads:
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 or procured by, or otherwise contributed to by an act or omission of, a person engaged in the management, administration, operation, supervision or regulation of the institution or a person otherwise employed in or associated with the institution.
The Court of Appeal, in both judgments of Kelly J and the separate judgment of Hogan J, could not accept that this availed the applicant Mr H. This is taken from the principal judgment of Kelly J
51. I am unable to conclude that s. 1(2) is of any assistance to Mr. H. In order for it to apply, a child had to be resident in a scheduled institution. If abuse occurred, not in that institution “but while the child was residing or being cared for in that institution and the abuse was committed or aided, abetted, counselled, procured or otherwise contributed to by an act or omission of a person engaged in the management, in the management, administration, operation, supervision or regulation of the institution or a person otherwise employed in or associated with the institution” then the entitlement to recover is established. Here, Mr. H was not resident or being cared for in a scheduled institution when the abuse in St. Gabriel’s took place.
52. As the trial judge correctly held, this sub-section must be taken as meaning that where a child was in a scheduled institution and the abuse took place outside the institution whilst the child was supervised by a person employed in or associated with the institution, then there is an entitlement to compensation. He took as an example of the operation of this sub-section that which was proffered by Counsel on behalf of the Committee of an incident occurring during the course of a day trip from the institution. That, in my view, is precisely the sort of situation that is contemplated under section 1(2). But the section provides no support for the conclusions reached by the trial judge.
6. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; and under Article 34.2 establishes the Court of Appeal and under Article 34.4.1° sets out its appellate jurisdiction. This reads:
4 1° The Court of Appeal shall—
i save as otherwise provided by this Article, and
ii with such exceptions and subject to such regulations as may be prescribed by law,
have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
7. Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is set out in Article 34.5.3° and 4° of the Constitution. The former relates to appeals where there has been a determination by the Court of Appeal and the latter where a litigant seeks to appeal directly from the High Court to the Supreme Court. The article relevant to this appeal, that where the Court of Appeal has already given judgment on a matter, is now quoted:
3° The Supreme Court shall, subject to such
regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—
i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.
8. The decision of the Supreme Court under Article 34.5.6° is in all cases “final and conclusive.”
9. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal “involves a matter of general public importance” or, alternatively, that it is, “in the interests of justice”, necessary that there be an appeal to this Court.
10. The Constitution has retained the entitlement of one appeal as of right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.
11. These determinations are not precedents or the legal interpretation of the relevant law. They are inter-parties determinations as to the issue of meeting the tests set out in the Constitution. The full text of the argument is on the website with this determination.
12. On the question as to whether there is an issue of general public importance, this application has been diverted by references to extraneous matters which are irrelevant for the purpose of considering this application. The essence of the argument for the applicant Mr H is that the decision of the Court of appeal “is of far reaching public importance in relation to the interpretation of the” 2002 Act. A case is somehow advanced that Saint Gabriel’s should have been scheduled. That, however, is a matter of legislation. It is said that the decisions of the Committee and the Court of appeal were “unfair and arbitrary” and flew “in the face of the interests of justice.” Any such claim should be backed up. It is not. The essential reasoning of the Court of Appeal is not addressed. The principle of “equality of arms” is also cited, but its relevance is not clarified. In reality, nothing stopped either side in this case from making the case they wished to make. Quite irrelevant matters as to the presence of a retired judge who was a member of the Respondent Committee are also ventilated to suggest that the decision of the Court of Appeal was not independent. This is not a case in which it could be suggested that there was any bias, objective or otherwise, by reason of the presence of a retired judge at the hearing before the Court of Appeal.
13. The Residential Institutions Redress Committee opposes granting leave. The Committee made it clear after the Court of Appeal hearing and all that this entailed by reference to the ventilating of arguments that partly reflect the prior paragraph that the award of €34,000 remained available to Mr H. This was confirmed in writing on 23rd November 2015 and by letter of 4th February 2016. But it had to be accepted within a month. He was professionally represented. His solicitor did not take up the award.
14. Addressing the actual Court of Appeal decision, the Committee argues that there is no error of law; that nothing to do with the arguments at paragraph 5 had been ventilated in the High Court; that there was no arbitrary decision or bias; that many irrelevant arguments have been made.
15. This Court is satisfied that issues of general public importance as to the interpretation of the 2002 Act arise in this application and accordingly will grant leave on 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 foreseeability, 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?
AND IT IS HEREBY ORDERED ACCORDINGLY
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