O'Brien v The Health Service Executive
 IEHC 659
THE HIGH COURT
[2016 No. 8177 P.]
Practice & procedure – Sexual abuse – Historic allegations – Whether claim to be struck on grounds of delay
Facts: The plaintiff alleged she had been subject to sexual assaults by a late employee of the first and second defendants whilst she was in their care. She brought a claim against the defendants which they now sought to have struck out because of delay.
Held by Noonan J, that the application would be granted. The evidence demonstrated that the defendants would be subject to a manifest unfairness in being required to defend such a claim. Cassidy v The Provincial ate  IECA 74, O’Domhnaill v. Merrick  IR 151, Primor Plc v Stokes Kennedy Crowley  2 IR 459 considered.
This application concerns a claim for sexual abuse brought by the plaintiff in which the first and second defendants seek an order dismissing the claim on the grounds of delay.
The plaintiff was born on the 2nd August, 1951. She is a separated mother of four children and resides in County Kilkenny. The second defendant is the regional leader of the Congregation of the Brothers of Charity (‘the Congregation’). The third defendant is the guardian ad litem appointed by the court to represent the estate of the late Dr. Denis Lane O'Kelly, consultant psychiatrist, who died in 2002. In the 1980's and for many decades before that, the Congregation owned and operated a small psychiatric hospital in Waterford known as Belmont Park Hospital. Dr. Lane O'Kelly was employed as a consultant psychiatrist at the hospital between 1956 and 1991 when he retired. The hospital closed down in 1992.
The first defendant is, like the second defendant, alleged by the plaintiff to have been responsible for the control, management and operation of Belmont Hospital. This is conceded by the second defendant but denied by the first defendant which claims to have had no such involvement save for the provision of funding for the hospital.
In the 1980's, the plaintiff suffered from alcohol dependence which resulted in her admission to Belmont Hospital under the care of Dr. Lane O'Kelly on at least two occasions in or around 1988. Following her discharge from these admissions, the plaintiff attended at the outpatients” clinic for follow up by Dr. Lane O'Kelly. During the course of two consultations with Dr. Lane O'Kelly at the outpatients” clinic, the plaintiff alleges that he sexually assaulted her. In the within proceedings, the plaintiff claims damages arising from these alleged events.
1988 – the plaintiff claims to have been assaulted in or around 1988 when she was 37 years of age. It is not alleged that she was unaware of the occurrence of these assaults. Although she made no formal complaint at the time, the plaintiff indicates in replies to particulars that she disclosed the abuse to a fellow patient in the hospital. It would also appear from a medical report put in evidence on behalf of the plaintiff from Dr. Elizabeth Cryan, consultant psychiatrist, that the plaintiff raised the issue with one of the nurses in Belmont Hospital as to whether it was unusual for a psychiatrist to perform an internal examination.
1991 – Dr. Lane O'Kelly retired.
1992 – The hospital closed down.
1997 – The Congregation became aware for the first time of complaints about Dr. Lane O'Kelly.
2002 – Dr. Lane O'Kelly died.
2005 – The plaintiff reported the abuse to a friend who advised her to contact the Rape Crisis Centre and she telephoned the Centre and spoke to a counsellor about the matter.
2011 – RTE screened a documentary entitled ‘Behind the Walls’ which was an exposè of the activities of Dr. Lane O'Kelly. The plaintiff in oral evidence said she saw this programme which acted as a catalyst to her to take action.
2013 – 2014 - the only evidence available to the court as to when the plaintiff first consulted solicitors came from the plaintiff's own direct oral evidence. She was asked how she came to be assessed by Dr. Cryan on the 18th April, 2015 and in reply said that her solicitors referred her to Dr. Cryan one or two years after she consulted them.
18th April, 2015 Dr. Cryan assessed the plaintiff and provided a report to her solicitors a few days later on the 22nd April, 2015 in which she expressed the following view:
‘Clearly, Ms. O'Brien's PTSD had arisen as a direct consequence of her alleged experiences of sexual assault. Due to a sense of deep shame, self-blame and fear that she would not be believed, Ms. O'Brien's capacity to take a legal case had been impaired, up to shortly before her assessment…’
13th September, 2016 – The plenary summons was issued.
19th September, 2017 – The statement of claim was served.
In the affidavit grounding this application, the second defendant deposes to a number of matters which he claims are prejudicial to the Congregation arising from delay. Some of these I have alluded to already, for example the closure of the hospital in 1992 and the death of Dr. Lane O'Kelly in 2002. It should be noted that the plaintiff's case is that she was alone with Dr. Lane O'Kelly when the alleged sexual abuse occurred so because of his death, she is now the only person who can give any relevant evidence of the occurrence of the events complained of.
Brother Corcoran avers that the medical director of the hospital was Dr. Lane O'Kelly himself and there were fourteen members of staff employed at the hospital, four of whom are now deceased. The administrative director of the hospital was Mr. Jim O'Donnell between 1968 and the closure of the hospital in 1992. Mr. O'Donnell died in 2017. Brother Canice Walsh was the brother superior of the Congregation who had overall responsibility for the management...
To continue readingREQUEST YOUR TRIAL