Cassidy v Provicialate
 IECA 74
COURT OF APPEAL
Personal injuries – Vicarious liability – Inordinate and inexcusable delay – Defendant seeking to have proceedings dismissed on grounds of delay – Whether there was a risk of an unfair trial
2014/1232 - Peart Irvine Mahon - Court of Appeal - 16/4/2015 - 2015 IECA 74
Facts: The plaintiff, Mrs Cassidy, by personal injuries summons issued in May, 2012, commenced proceedings claiming damages for personal injuries allegedly suffered by her by reason of assault, abuse, rape and false imprisonment on the part of a man, PD, between the years 1977 and 1980. The plaintiff maintained that the unlawful conduct on the part of PD occurred as a result of the negligence and breach of duty on the part of the defendant, the Provincialate, in, inter alia, allowing him to have ongoing unsupervised contact with young children such as herself, and she maintained that the defendant, as his employer, was vicariously liable in respect of all of the wrongdoing alleged. The plaintiff advised that she first disclosed her abuse to her AA sponsor in November, 2009, and approximately six months later to her husband. She first reported the events in question to the Gardai in December 2011. The defendant maintained that the plaintiff”s claim was statute barred by reason of the Statute of Limitations 1957, but reserved its right to bring an interlocutory application to have the proceedings dismissed on the grounds of inordinate and inexcusable delay. It denied that it ever employed PD and further denied all allegations of wrongdoing, negligence and/or vicarious liability. The personal injuries pleaded were also denied in full. In its judgment in February, 2014, the High Court declined the defendant”s application to dismiss the claim on the grounds of delay. The High Court concluded that while the plaintiff”s delay in instituting the proceedings had been inordinate it could be excused by reference to her upbringing, the fact that her abuser had had dominion over her and by reason of the fact that she had been subjected to many misfortunes of the nature advised by her in the personal injuries summons. The High Court concluded that there was no real or serious risk that, if the claim was allowed to proceed, the defendant would be at risk of an unfair trial. The High Court was satisfied that the death of PD did not offer a solid basis for reaching such a conclusion. Further, he was satisfied that the defendant was in a position to call in aid of its defence evidence from a former staff member who had worked in the defendant”s private nursing over the period 1977 to 1980. The defendant appealed against the judgment and order of the High Court, submitting that the trial judge had made a number of findings that were unsupported by the evidence. The defendant referred to the prejudice arising from death of the plaintiff”s alleged abuser and some eighteen other potential witnesses, the unavailability of a further number of witnesses, and a gap of some thirty or more years since the events in question. The plaintiff submitted that there was nothing unusual about substantial pre-commencement delay in cases of alleged sex abuse and maintained that the defendant had not discharged the burden of proof which rests with the moving party on an application to dismiss proceedings based upon prejudicial delay.
Held by Irvine J that, having considered the tests in Primor plc v Stokes Kennedy Crowley  2 IR 459 and O”Domhnaill v Merrick  IR 151, she was satisfied that the death of PD had visited the grossest imaginable prejudice upon the defendant. In that regard she disagreed with the conclusion of the High Court judge on the issue. Irvine J was satisfied that the death of PD alone was of such prejudicial magnitude that it warranted the court determining the balance of justice issue against the plaintiff. Accordingly, she was satisfied that the defendant had established on the evidence adduced that the balance of justice warranted the dismissal of the proceedings. Irvine J rejected the submission of the plaintiff that the defendant”s application should fail because it has taken insufficient steps to establish the whereabouts of four of the potential twenty nine witnesses that might have been available to the defendant as those witnesses were so peripheral in the content of the enormous prejudice caused by the death of PD.
Irvine J held that the defendant was entitled to have the action dismissed in the exercise by the Court of its jurisdiction as per the O”Domhnaill test.
JUDGMENT of Ms. Justice Irvine delivered on the 16th day of April 2015
1. This is an appeal against the judgment and order of the High Court (Barrett J.) made on 28 th February, 2014, whereby he refused the defendant's application to dismiss the proceedings, pursuant to the inherent jurisdiction of the court, on the grounds of inordinate and inexcusable delay.
2. By personal injuries summons issued on 1 st May, 2012, the plaintiff, a housewife and mother of four children, commenced proceedings claiming damages for personal injuries allegedly suffered by her by reason of assault, abuse, rape and false imprisonment on the part of a man, who I will refer to as PD, between the years 1977 and 1980. Given that the plaintiff was bom in 1965, she would have been aged between twelve and sixteen years at the time of the alleged abuse.
3. The plaintiff claims that PD was an employee of the Religious Sisters of Charity, the defendant to this action, who owned certain premises at Donnybrook in Dublin consisting of a convent, a private nursing home and a laundry.
4. As appears from the personal injuries summons, the plaintiff maintains that the majority of the abuse alleged took place while she was visiting a friend who lived in a gate lodge at one of the entrances to the defendant's premises. The abuse is alleged to have been carried out in a hut and sometimes in a somewhat larger shed within the grounds. At other times it is maintained that the abuse occurred at locations well removed from the defendant's premises.
5. The plaintiff maintains that the unlawful conduct on the part of PD occurred as a result of the negligence and breach of duty on the part of the defendant in, inter alia, allowing him to have ongoing unsupervised contact with young children such as herself, and she maintains that the defendant, as his employer, is vicariously liable in respect of all of the wrongdoing alleged.
6. The plaintiff asserts that the events in question had a devastating effect on her childhood. Her academic performance, self esteem and ability to enjoy normal relationships were all allegedly adversely affected. She maintains that she has suffered from recurring depression, alcoholism, feelings of guilt and suicidal ideation. The plaintiff claims that she developed post-traumatic stress disorder, that this is ongoing, and that her psychological condition has adversely impacted on her ability to act in relation to the abuse. By affidavit of verification dated 21 st May, 2012, the plaintiff deposed to the truth of all of the allegations referred to in her personal injuries summons.
7. An appearance was entered by the defendant on 11 th May, 2012, and a notice for particulars delivered on 21 st May, 2012. In her replies to particulars of 10 th August, 2012, the plaintiff advised that she first disclosed her abuse to her A.A. sponsor in or around 20 th November, 2009, and approximately six months later to her husband. She first reported the events in question to the gardaí in December 2011.
8. In its defence delivered on 17 th January, 2013, the defendant maintained that the plaintiff's claim was statute barred by reason of the Statute of Limitations 1957, as amended, but reserved its right to bring an interlocutory application to have the proceedings dismissed on the grounds of inordinate and inexcusable delay. It denied that it ever employed PD and further denied all allegations of wrongdoing, negligence and/or vicarious liability. The personal injuries pleaded were also denied in full.
9. The defendant's motion to dismiss the claim on the grounds of delay was issued on 6 th November, 2013. For the purposes of that application Sr. Phyllis Behan, the defendant's Provincial Leader, swore an affidavit on 1 st November, 2013, wherein she, in summary, advised of the following facts:-
(i) that it appeared likely that PD was dead although an ongoing Garda investigation had not yet established that fact with certainty;
(ii) that having gone through the records of the Sisters of Charity she could find no record of PD ever having been in the defendant's employment;
(iii) that two long term caretakers who had been employed at St. Mary's at the time of the plaintiffs alleged complaints had retired in 1982 and 1985 respectively and were both dead;
(iv) that of the five men who had worked in the laundry at the relevant time three were dead and the whereabouts of the other two was unknown;
(v) that of the nineteen Sisters who had lived as part of the community at St. Mary's between 1975 and 1979, thirteen were deceased, three had left the congregation and three had survived. Of the three members of the community still alive, one is mentally unwell and the other two have no recollection of a PD having worked for the defendant.
(vi) that one former staff member had been located who had some recollection of a man by the name of PD who she thought may have worked as a general handyman in Maryville, the private nursing home. She believes that he was there when she arrived in 1977 and left in or around 1979/1980.
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