Clifford [A person of unsound mind not so found] v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 10 June 2005
• Neutral Citation: [2005] IEHC 288
• Court: High Court
• Date: 10 June 2005

[2005] IEHC 288

THE HIGH COURT

[No. 14536 P/2002]

CLIFFORD v MIN FOR EDUCATION & ORS

BETWEEN

ALAN CLIFFORD A PERSON OF UNSOUND MIND NOT SO FOUND SUING BY HIS MOTHER AND NEXT FRIEND MARY CLIFFORD

PLAINTIFF

AND

THE MINISTER FOR EDUCATION AND SCIENCE, THE MINISTER FOR HEALTH AND CHILDREN, THE SOUTHERN HEALTH BOARD, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

EUROPEAN CONVENTION HUMAN RIGHTS ACT 2003 ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 17

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 18

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 2

RSC O.28 r1

BELL v PEDERSON & SANDOZ RINGASKIDDY LTD 1995 3 IR 511 1996 1 ILRM 290

RUBOTHAM v M & B BAKERIES LTD 1993 ILRM 219

KROPS v IRISH FORESTRY BOARD LTD & RYAN 1995 2 IR 113 1995 2 ILRM 290

CIVIL LIABILITY ACT 1961 S48(6)

RSC O.20 r2

RSC O.20 r3

RSC O.20 r4

RSC O.20 r5

STATUTE OF LIMITATIONS 1957

CROKE v WATERFORD CRYSTAL LTD & IRISH PENSIONS TRUST LTD 2005 1 ILRM 321

WHITE BOOK 1999 370

EUROPEAN CONVENTION HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION HUMAN RIGHTS ACT 2003 S3

HANNON v COMMISSIONERS OF PUBLIC WORKS & ORS UNREP HIGH COURT MCCRACKEN 4.4.2001 2001/11/3168

MCCARTHY v O'FLYNN 1979 IR 127

AIB v ERNST & WHINNEY 1993 I IR 375

RSC O.31 r12(1)

RSC O.31 r12(3)

RSC (NO 2) (DISCOVERY) 1999 SI 233/1999 O.31 r12(4)

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE v PERUVIAN GUANO CIE 1882 11 QBD 55

AQUATECHNOLOGIE LTD v NATIONAL STANDARDS AUTHORITY OF IRELAND (NSAI) & ORS UNREP SUPREME 10.7.2000 2000/1/209

DOWNEY v MIN FOR EDUCATION & ORS UNREP MASTER OF THE HIGH COURT 14.5.2002 2003/12/2699

SINNOTT v MIN FOR EDUCATION & ORS 2001 2 IR 598

CLIFFORD v MIN FOR EDUCATION & ORS UNREP HIGH COURT BUDD 10.6.2005

CONSTITUTION ART 42.4

EDUCATION ACT 1998 S6

EDUCATION ACT 1998 S7

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 42.1

CONSTITUTION ART 42.3.1

CONSTITUTION ART 42.3.2

CHILD CARE ACT 1991 S3

EQUAL STATUS ACT 2000

HEALTH ACT 1970

PRACTICE AND PROCEDURE:

Amendment of pleadings

Leave to amend plenary summons and statement of claim sought - Whether amendments necessary for purposes of determining controversy - Discovery -Documents - Plaintiff's motion for discovery- Whether plaintiff entitled to documentation- Rules of the Superior Courts 1986 (SI15/1986), O 28, r 1 and O 31, r 12 - Liberty to amend plenary summons and statement of claim and discovery granted

Facts: The plaintiff was a profoundly autistic young man with special educational needs. The plaintiff alleged inter alia that the Health Board failed to carry out an adequate assessment of the plaintiff to ascertain his needs and failed to intervene at an early stage and as a result the plaintiff regressed. This judgment concerned three motions, namely: a motion seeking liberty to amend the pleadings to include a claim pursuant to the European Convention on Human Rights Act 2003; and two motions relating to orders for discovery made by the Master.

Held by Budd J. in allowing the amendment that, O. 28 was intended to be a liberal rule enabling the real issues between the parties to be determined; and in varying the orders for discovery that, orders for discovery should only be made where they are necessary and the Court should be aware of the effectiveness of discovery as an instrument for extracting documentary evidence of a true situation and also a means to reduce the time spent in trial eliciting what actually occurred. At the same time, the Court had to bear in mind the onerous burden put on a party who has to make discovery on oath.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Declan Budd delivered on the 10th day of June, 2005

2 This case came before this court by way of three motions. The first motion dated 15th February, 2005 was for an order on behalf of the plaintiff seeking liberty to issue and serve an amended plenary summons and statement of claim to include a claim pursuant to the European Convention on Human Rights Act, 2003, together with such further and other consequential orders and directions as to the court might seem fit and proper, including an order as to costs as appropriate vis-à-vis each of the defendants. This application is grounded on the affidavit of Orla Phelan the solicitor acting on behalf of the plaintiff. There are two further motions concerning appeals by the plaintiff and by the third named defendant, the Southern Health Board, which are each in respect of appeals from the order made by the Master of the High Court on 3rd February, 2005 in respect of discovery of documents in the proceedings between the plaintiff and the defendants. For clarity I propose to refer to the Southern Health Board as the third named defendant. At times the Southern Health Board has been referred to previously in the pleadings as the fourth named defendant but now appears as the third named defendant as a notice of discontinuance has been served by the plaintiff in respect of proceedings against the National Educational Welfare Board.

Background

3 The history behind these proceedings is that the plaintiff, who is now aged twenty seven having been born on 12th October, 1977, is a profoundly autistic young man whose parents, when he was aged six years old, were advised and realised that the plaintiff was a child with special educational needs and he was referred by the defendants to a special school at Lixnaw and then subsequently to a specialist provision at Scoil Triest at Lota House. The particulars in the statement of claim allege that early medical and social reports undertaken in February, 1981 suggested that the plaintiff was slightly autistic with some mental retardation. In September, 1981 he was assessed at the facility at Fitton St. and the plaintiff was seen as autistic but it was suggested that there was a "resolution" of this phase and at the time it was conjectured that he might have mild moderate mental handicap. It was confirmed in the psychological assessment in September, 1981 that he was functioning as a child with moderate learning difficulties. When the plaintiff started at Lixnaw (otherwise known as the Nano Nagle School) it is alleged that he was toilet trained and could string three word sentences together and was able to interact in a playful manner with children of his own age by, for example, kicking a ball on the lawn. The plaintiff's parents were advised that there were no staff trained to deal with autistic children at Lixnaw and since it was clear that Alan needed early intervention with specialist staff trained to deal with the autistic he was subsequently brought to Scoil Trieste in Lota. It is alleged that no IEPA (Independent Educational Psychological Assessment) was prepared at Scoil Trieste and that in the absence of the necessary treatment and help the plaintiff regressed and that he became resistant to learning and that his behaviour deteriorated. It is alleged that the placement has been deficient in relation to the provision of appropriate speech and language therapy and in a detailed communication programme and educational provision. From the plaintiff's reply dated 6th November, 2003 to a notice for particulars it is indicated that the plaintiff was started on a PECS programme in January, 2003, a behavioural therapy programme in January, 2003 and a structured programme for him throughout his day again in January, 2003. These are the only therapies that the plaintiff's next friend is aware that he is getting. The Southern Health Board, the third named defendant, is alleged to have failed to defend or vindicate the personal rights of the plaintiff, including the right to bodily integrity and the right not to have his health endangered by the State, his right to communicate, his right to privacy, the right to make the best possible use of his inherent capabilities, physical, mental and moral and the right to have his welfare vindicated by the State in the manner set out in the statement of claim under the headings of "Particulars of Negligence, Breach of Duty including Breach of Statutory Duty against the third named defendant (the Health Board)".

4 No less than forty-nine particulars of negligence are clearly and specifically alleged against the first, second, fourth and fifth named defendants and no less than forty-five particulars of negligence are listed against the third named defendant and it is helpful to have the flavour of such particulars for the purposes of the discovery motions. It is alleged, inter alia, that the third named defendant failed to carry out adequate and proper assessment of the plaintiff to ascertain his needs and failed to carry out an individual care programme (I.C.P.) for the plaintiff and failed to intervene at an early stage to assess the plaintiff's special needs and provide for those needs and failed to provide any adequate and proper speech therapy, occupational therapy, behavioural therapy, physiotherapy, music therapy, and further also failed to retain any adequate and proper number of properly trained personnel to cater for the plaintiff's special needs or to adopt any adequate and proper programme of therapies for the plaintiff. The third named defendant's defence dated 7th September, 2004 is in effect a traverse. While the defence of the first, second, fourth and fifth named defendants does admit parts of the statement of claim nevertheless many of the allegations are denied and thus there are wide issues in dispute with regard to the plaintiff's claims in...