A.B. v Health Service Executive (Damages: sexual abuse)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 11 November 2022 |
| Neutral Citation | [2022] IEHC 589 |
| Court | High Court |
| Docket Number | 2012 No. 4117 P |
[2022] IEHC 589
2012 No. 4117 P
THE HIGH COURT
Child sexual abuse – Damages – Costs – Plaintiff seeking damages arising out of child sexual abuse – Whether damages should be reduced by the settlement sum
Facts: The plaintiff claimed damages arising out of child sexual abuse. The personal injuries action had initially been pursued against three defendants, namely the plaintiff’s father, her uncle and the Health Service Executive (HSE). The claim as against the HSE was settled prior to the substantive hearing. The principal judgment in the proceedings was delivered on 30 June 2022 ([2022] IEHC 376). Damages were assessed in an amount of €350,000. Counsel on behalf of the plaintiff accepted that, having regard to the broad definitions provided for under the Civil Liability Act 1961, the HSE was properly regarded as a “concurrent wrongdoer” for the purpose of determining the legal effect of the settlement. It was accepted that the damages payable by the two remaining defendants should be reduced by the settlement sum of €130,000. The father indicated that he was agreeable to the approach suggested by counsel on behalf of the plaintiff. The uncle submitted that the HSE should be treated as liable for the entirety of the damages suffered by the plaintiff in circumstances where the uncle alleged that he had been wrongfully convicted of child sexual abuse. The uncle submitted that the legal costs should be borne entirely by the HSE. First, it was asserted that the uncle did not commit the acts of child sexual abuse. Secondly, it was asserted that the uncle did not have the financial ability to pay a costs order. The father also asserted that he did not have the financial ability to pay a costs order.
Held by the High Court (Simons J) that it was not open to the uncle, in the context of a post-judgment application, to revisit the substantive findings in the case. Simons J held that it was sufficient for the purpose of the exercise s. 17 of the 1961 Act to find that whatever limited contribution, if any, the alleged shortcomings on the part of the HSE might have made towards the trauma suffered by the plaintiff, it was minuscule relative to the trauma caused by the father and uncle; the most significant psychological injuries suffered by the plaintiff were caused by the criminal acts of her father and uncle. Simons J held that the amount, if any, which the HSE would have been liable to contribute to the plaintiff’s total claim of €350,000 would fall well short of the sum of €130,000 actually paid by way of settlement. Accordingly, Simons J held that the application of s. 17 to the circumstances of the case had the effect of reducing the damages recoverable against the father and uncle by €130,000, leaving a balance of €220,000.
Simons J held that the financial ability to satisfy a costs order is not a relevant consideration in a personal injuries action between private parties which presents no novel issue of law. Simons J held that an adjustment would be made to the costs order to reflect the fact that the plaintiff had recovered certain costs against the HSE; counsel on behalf of the plaintiff confirmed that the settlement with the HSE included provision for the payment of certain legal costs. Accordingly, Simons J proposed making an order that the plaintiff was to recover as against the two remaining defendants all of the costs of the proceedings incurred since the date of settlement, i.e. 11 May 2021. Simons J held that those costs would include the costs of the substantive hearing in May 2022 and the costs of the hearing on 28 October 2022. Simons J held that the costs were to include the costs of two counsel. In addition, Simons J held that the plaintiff already had the benefit of certain costs orders arising out of, for example, the judgment in default of appearance.
Damages reduced.
John Shortt, SC and Frank Martin for the plaintiff instructed by John J. Quinn & Co. (Longford)
The second and third defendants appeared as litigants in person
JUDGMENT of Mr. Justice Garrett Simons delivered on 11 November 2022
The within proceedings involve a claim for damages arising out of child sexual abuse. The plaintiff had been subjected to repeated sexual abuse by her father and uncle, respectively, when she was a child.
The principal judgment in these proceedings was delivered on 30 June 2022 and bears the neutral citation [2022] IEHC 376. As appears from the principal judgment, damages were assessed in an amount of €350,000. This supplemental judgment addresses the form of order to be made. In particular, it addresses (i) the legal consequences of an earlier settlement agreement, and (ii) the allocation of legal costs.
These proceedings are subject to an order pursuant to Section 27 of the Civil Law (Miscellaneous Provisions) Act 2008. The order precludes the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the plaintiff. This precludes, for example, the publication of (i) the names or addresses of the plaintiff and the two remaining defendants; and (ii) details of the general area where the parties now reside or had resided at the time of the sexual abuse.
The personal injuries action had initially been pursued against three defendants, namely the plaintiff's father, her uncle and the Health Service Executive (“ HSE”). The claim as against the Health Service Executive was settled prior to the substantive hearing. The settlement was brought to the attention of the High Court (Cross J.) and an order was made striking out the proceedings against the Health Service Executive on 11 May 2021.
As appears from paragraphs 79 to 86 of the principal judgment, consideration of the implications of the settlement for the remaining defendants was deferred to allow the parties an opportunity to make submissions to the court. To this end, a short hearing was convened on 28 October 2022. The plaintiff was represented by solicitor and counsel. The plaintiff's father and uncle did not have legal representation. The father made submissions on his own behalf. The uncle addressed the court too, and I also allowed his sister to make a short submission on his behalf in accordance with Practice Direction HC 72 (McKenzie Friends).
Counsel on behalf of the plaintiff accepted that, having regard to the broad definitions provided for under the Civil Liability Act 1961, the Health Service Executive is properly regarded as a “ concurrent wrongdoer” for the purpose of determining the legal effect of the settlement. It was further accepted that the damages payable by the two remaining defendants should be reduced by the settlement sum of €130,000.
The plaintiff's father, the second named defendant, indicated that he was agreeable to the approach suggested by counsel on behalf of the plaintiff.
The position adopted on behalf of the plaintiff's uncle, the third named defendant, was very different. The uncle submitted that the Health Service Executive should be treated as liable for the entire of the damages suffered by the plaintiff in circumstances where the uncle alleged that he had been wrongfully convicted of child sexual abuse.
With respect, it is not open to a defendant, in the context of a hearing to finalise the form of order following upon the delivery of a reserved judgment, to seek to reopen the substantive proceedings. This is especially so in the present case where judgment had been entered against the uncle in default of appearance as long ago as 21 October 2013. No application was ever made to set aside the default judgment. The only issue outstanding at the hearing in May 2022 had been the assessment of damages. Moreover, the plaintiff's uncle has been convicted of the rape and sexual assault of the plaintiff by a jury in the Central Criminal Court. The conviction was upheld on appeal by the Court of Criminal Appeal, Director of Public Prosecutions v. J.S. [2013] IECCA 41. There is no basis, therefore, for the plaintiff's uncle to seek to resist the consequential orders arising out of the principal judgment by asserting that he is innocent of the child sexual abuse.
The concept of “ concurrent wrongdoers” is defined as follows at Section 11(1) of the Civil Liability Act 1961:
“For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.”
Section 11(2) provides, relevantly, that it is immaterial whether the acts constituting concurrent wrongs are contemporaneous or successive.
The term “ damage” is defined as including “ personal injury”; the latter term is defined as including any impairment of a person's physical or mental condition. The concept of “ same damage” is not separately defined under the Civil Liability Act 1961.
It is apparent from the personal injuries summons—and from the further and better particulars furnished on 29 January 2021—that the plaintiff's case had been that the Health Service Executive bears some responsibility for the personal injuries suffered by her. More specifically, the plaintiff's claim is that, as a result of the consecutive wrongs of the second and third defendants, and the Health Service Executive, respectively, she has suffered a significant psychological injury in the form of post-traumatic stress disorder. It is not, of course, suggested that the Health Service Executive has any liability for the criminal acts of the two other defendants. Rather, the gravamen of the...
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