O'C v Klh
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 22 June 2006 |
| Neutral Citation | [2006] IEHC 199 |
| Court | High Court |
| Docket Number | [2002 No. 11224P] |
| Date | 22 June 2006 |
[2006] IEHC 199
The high court
Between
and
And
COURTS ACT 1988 S1(1)
COURTS ACT 1988 S1(3)
COURTS ACT 1988 S1(3)(a)
COURTS ACT 1988 S1(3)(b)
SHERIDAN v KELLY & MCDONNELL UNREP SUPREME COURT 6.4.2006 2006 IESC 26
MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 PARA 22.28
WILKINSON v DOWNTON 1897 2 QB 57
WAINRIGHT v HOME OFFICE 2003 3 WLR 1137
Practice and procedure - Mode of trial - Trial by jury - Whether action came within scope of s. 1(3)(b) of Courts Act 1988
The First Named Defendant sought an order setting aside the notice of trial on the basis that the matters in issue in the proceedings were not such as should proceed before a jury. It was contended that the Plaintiff's claim was pursuant to contract and insofar as the right to a jury was based on a claim for assault it was not a matter which should proceed by way of trial by jury.
Held by Dunne J. in setting aside the notice of trial that the matters complained of by the Plaintiff could not be said to be within the scope of s. 1(3)(b) of the Courts Act 1988.
Reporter: R.W.
Judgment of Ms. Justice Dunnedelivered on the 22nd day of June 2006
The first named defendant by notice of motion dated 8th June, 2006, seeks an order setting aside the notice of trial by a judge and jury herein dated 14th March, 2006. The notice of motion herein is grounded upon an affidavit of Caroline Keane solicitor on behalf of the first named defendant.
The basis upon which it is sought to strike out the notice of trial herein is that the matters at issue in these proceedings are not such as should proceed before a jury. As set out in the affidavit of Caroline Keane, it is claimed that the plaintiff's claim herein is pursuant to contract and that insofar as the right to a jury is based on a claim for assault by the second named defendant it is not a matter that should proceed by way of trial by jury. Some correspondence passed between the solicitors for the first named defendant and the plaintiff in regard to this issue which reached no conclusion on the issue but I do not think it is necessary to refer to that correspondence.
A replying affidavit was sworn by the solicitor acting for the plaintiff. Save that the solicitor for the plaintiff Patrick O'Riordan complains of the delay in bringing this application there is nothing else of relevance or of assistance contained in the affidavit to which reference need be made.
Mr. Callanan SC on behalf of the first named defendant referred to s. 1(1) of the Courts Act, 1988. It provides as follows:
1. (i) Notwithstanding s. 94 of the Courts of Justice Act, 1924, or any other provisions made by or under statute, or any rule of law, an action in the High Court
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty, whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision,
(b) under s. 48 of the Civil Liability Act, 1961 or
(c) under s. 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act 1936, or a question of fact or an issue arising in such an action, shall not be tried with a jury.
Section 1(1) therefore abolished the right to a jury in actions for damages for personal injuries caused by negligence, nuisance or breach of duty. A limited saver was provided by subs. 3 which provides as follows:
1 (3) Subsection 1 of this section does not apply in relation to -
2 (a) an action where the damage is claimed consist only of damages for false imprisonment or intention of trespass to the person or both,
3 (b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (where claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court on the application of any party, made not later than seven days after the giving notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both as the case may be, in respect of that act or omission, ...
The action herein is not one which comes within the scope of s. 1(3) (a). At issue between the parties herein is the question of whether the action herein comes within the scope of s. 1(3) (b). Mr. Callanan SC in his submissions stated that the statement of claim herein contained a multiplicity of claims including breach of contract, negligence, breaches of employment law, inter alia. The matters complained of range over not just one incident or one type of incident but consist of claims in respect of other matters as well. Accordingly, a jury would be dealing with a number of separate incidents not just flowing from incidents of sexual assault or assault simpliciter. Accordingly, he submitted that the statement of claim herein ranged too widely from the exception provided by s. 1 (3) (b).
It may be useful to consider the statement of claim herein. Paragraph 5 of the statement of claim sets out in detail the alleged express and or implied terms of the plaintiff's contract of employment. Without going through all of those in detail it would be helpful to refer to the first alleged term namely:
"That the first named defendant, its servants or agent would not subject the plaintiff to sexual assault, sexual harassment, intimidation, victimisation, bullying, harassment, unreasonable and arbitrary treatment."
Para. 6 of the statement of claim outlines details of an alleged sexual assault on the plaintiff by the second named defendant, a co-worker of the plaintiff employed by the first named defendant. It is alleged subsequently that the second named defendant was acting in the course of his duties at the time of the alleged assault and that consequently the first named defendant is vicariously liable for the matter complained of. I think I should also quote paras. 8 and 9 respectively of the statement of claim in full.
2 "8 Further or in the alternative the first named defendant in failing to take any action against the second named defendant and in pre-judging the complaint made by the plaintiff against the second named defendant, subsequently acquiesced in the second named defendant's behaviour and accordingly is estopped from denying responsibility for same.
9 Wrongfully and in breach of the contractual terms set out above, commencing in December, 1998, and continuing until 2001, when the plaintiff was forced to resign from her position with the first named defendant, the plaintiff was subjected to ongoing harassment, victimisation, intimidation and isolation by the defendants and each of them and/or their respective servants or agents. Furthermore and in further breach of the terms set out above the first named defendant, its servants or agents systematically ignored complaints made by the plaintiff and exposed her to an ongoing risk of injury, loss and damage by reason of their deliberate refusal to deal with same."
Thereafter lengthy particulars are furnished as to the matters complained of by the plaintiff. The plaintiff goes on to plead that as a result of the matters complained of she has suffered severe personal injuries, loss and damage and further particulars are then given of the alleged personal injuries, loss and damage. The statement of claim goes on to plead that the said personal injuries, loss and damage were caused by the negligence and breach of duty of the first named defendant, its servants or agents and again particulars are given in regard to that.
Paragraph 12 of the statement of claim relates to the manner in which the first named defendant is alleged to have dealt with complaints made by the plaintiff in respect of the first named defendant and in relation to a loss of statements made by the plaintiff in relation to the said incidents. Again that aspect of the plaintiff's claim is referred to for the purpose of seeking aggravated damages or exemplary damages.
Ms. Donnelly SC appeared on behalf of the plaintiff herein. She argued that the proceedings herein had been mischaracterised by Mr. Callanan. This was not a breach of contract case as he suggested. On the contrary it was an assault case. She referred to the decision of the Supreme Court in the case of Sheridan v. Kelly & McDonnell (Unreported, Supreme Court, 6th April, 2006). That case concerned an allegation of assault including sexual assault against a Christian Brother at a school in which the plaintiff was a student. In that case the plaintiff served a notice of trial for judge and jury. The second named defendant served a notice of motion to have the case transferred to the personal injuries list to be tried by a judge sitting alone. In the High Court, Kearns J. made an order granting the reliefs sought because the plaintiff had joined another cause of action with his claim for damages for "intentional trespass to the person." Ms. O'Donnell placed particular emphasis on a passage from the judgment of Fennelly J. at p. 4 thereof in which it was stated as follows:
"Mr. O'Donoghue argued...
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