Analysis: The State will be relieved it was found not liable for the sexual abuse of a boy at a residential school, writes Carol Coulter, Legal Affairs Correspondent.
The religious order which ran St Joseph's Industrial School in Kilkenny must pay all the €75,000 damages to the man abused by a house parent there in 1976.
This was the ruling of Mr Justice O'Higgins in the High Court yesterday and it will come as a relief to the two other defendants, the South Eastern Health Board and the Minister for Education and Science.
This was a case which examined the whole issue of the relative liability of the State and of the religious orders for abuse which occurred in children's residential institutions controlled by the orders.
This issue arises in a number of such cases and is also at the centre of the deal done between the State and the orders on the financing of the Residential Institution Compensation Tribunal.
However, there was much about this case that was very specific and not applicable to other cases coming before the courts where the victims are seeking compensation for sexual abuse.
The boy at the centre of the case was not a resident, but a visitor and this is a crucial difference with other cases.
"Whatever the arguments could be made for such a [special protective\] relationship concerning the residents at St Joseph's Institution, it is clear that in this . . . the Minister had no 'control' over any aspect of the life of the plaintiff," said Mr Justice O'Higgins.
He rejected the argument that the fact that the Children Act of 1941 stated that the Minister "may make regulations for the conduct of certified schools" made the Minister liable for any negligence on the part of the institution by failing to make such regulations.
The law said he "may" make such regulations and imposed no obligations and in any case, the duty implied by this was to people resident in the school.
In finding the institution responsible, the judge dwelt on the fact that complaints had been made against the house-master in question, Myles Brady, to the Rev Mother, Sister Conception, by another care-worker in St Joseph's, Mr Edward Murphy.
These were not acted upon. He eventually resigned in 1977, stating he felt that "the situation in Summerhill is highly undesirable and unsafe".
While his concerns were about physical rather than sexual abuse, the judge concluded: "If an investigation had been undertaken on foot of this, it is highly likely that it would have been ascertained that Mr Brady was unsuitable for his position and that the necessary action would have been taken."
He also said that had his complaints been investigated, "it is unlikely that Mr Brady would have been in the school and in a position to assault the plaintiff
"Unfortunately Sister Joseph Conception made an error of judgment in failing to investigate the complaint of Mr Murphy."
While this judgment has little applicability to cases concerning residents of institutions like St Joseph's, it is likely to be closely examined by lawyers representing children abused in ordinary day schools, where the State has argued that it has no liability because it did not directly employ the teachers.