Connellan v Saint Joseph's Kilkenny and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Diarmuid B. O'Donovan
• Judgment Date: 21 March 2006
• Neutral Citation: [2006] IEHC 119
• Docket Number: [No. 13984 P/1997]
• Court: High Court
• Date: 21 March 2006

CONNELLAN v SAINT JOSEPH'S KILKENNY & ORS

BETWEEN

DAVID CONNELLAN

PLAINTIFF

AND

SAINT JOSEPH'S KILKENNY, SOUTH EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, MINISTER FOR HEALTH, MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2006] IEHC 119

[No. 13984 P/1997]

THE HIGH COURT

DAMAGES

Award

Physical and sexual abuse - Statute of limitations - Whether elements of claim not particularised until trial were statute barred - Whether plaintiff need identify every incident of abuse in advance of his action before he was entitled to rely on it in support of his claim - Where damages are claimed under headings of negligence, breach of duty, assault and breach of and failure to vindicate constitutional rights award of damages has to comprehend each of those headings - Whether aggravated damages should be awarded - General and aggravated damages awarded (1997/13984P - O'Donovan J - 21/3/2006) [2006] IEHC 119

Connellan v Saint Joseph's Kilkenny

The plaintiff sought damages for personal injuries suffered as a resident of a residential orphanage where he alleged he was subject to assault, abuse and ill treatment after being placed in care whilst three weeks old. The defendant’s conceded liability and the proceedings proceeded by way of assessment only.

Held by O’Donovan J. that whilst certain of the evidence of the plaintiff was accepted and that the tragic death of the plaintiff’s son contributed to some of his emotional difficulties, the plaintiff was entitled to aggravated damages. The plaintiff was awarded EUR200,000 general damages, a further EUR50,000 general damages to purchase anti-depressant medication and counselling and EUR50,000 aggravated damages.

Reporter: E.F

STATUTE OF LIMITATIONS ACT 1957

NOCTOR v IRELAND & ORS 2005 1 IR 433

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002

CONWAY v IRISH NATIONAL TEACHERS ORGANISATION 1991 2 IR 305

SWAINE v COMMISSIONERS OF PUBLIC WORKS 2003 1 IR 521

PHILIP v RYAN 2004 4 IR 257

Mr. Justice Diarmuid B. O'Donovan

1 The plaintiff in this case, David Connellan, comes to court seeking damages by way of compensation for alleged personal injury, loss, damage and expense suffered by him a result of treatment to which he was subjected while a resident in the first named defendant's orphanage at Kilkenny in the County of Kilkenny. In this regard, in a statement of claim delivered herein on the 3rd day of March, 1998, the plaintiff alleges that, during the course of his detention at the said orphanage, he was repeatedly assaulted, abused and ill treated by employees of the defendants and, in particulars included in the said statement of claim, the nature of the alleged assaults, abuse and ill treatment was identified as are the employees of the defendants who are alleged to have committed that wrongdoing. Those employees are named in the statement of claim as Therese Connolly, David Murray and Breffney O'Rourke. While a full defence was delivered on behalf of the defendants in which (inter alia) it was claimed that the plaintiff's claim herein is statute barred by virtue of the provisions of the Statute of Limitations 1957, as amended, when the case commenced before me on Friday, 2nd December, 2005, I was advised by counsel for the plaintiff that liability had been fully conceded on behalf of all the defendants and that the case would proceed before me as an assessment of damages only. However, in the course of the plaintiff's evidence, counsel for the defendants complained that, while the defendants had conceded liability in the case, they had done so in the light of the allegations contained in the statement of claim delivered on behalf of the plaintiff on the 3rd day of March, 1998 and, specifically, in the light of the particulars which were included in that statement of claim; no further particulars of the plaintiff's claim having been delivered on his behalf. However, counsel submitted that, in the course of his testimony, the plaintiff had given evidence with regard to six areas of alleged assault and abuse, which were not included in the particulars contained in the statement of claim and, of which, the defendants had no notice. Accordingly, counsel for the defence submitted that the defendants were not in a position to meet the case which was presented on the plaintiff's evidence in the witness box. In this regard, counsel for the defence identified the matters in respect of which the plaintiff had given evidence but which were not included in the statement of claim as follows:

2 (1) that a person called Sally Hogan physically beat the plaintiff,

3 (2) that Therese Connolly falsely imprisoned the plaintiff in a cupboard,

4 (3) that David Murray attempted sexual abuse of the plaintiff on three occasions,

5 (4) that Breffney O'Rourke physically beat the plaintiff on 20 occasions,

6 (5) that the plaintiff was physically abused by boys in Beech Park and

7 (6) that the plaintiff was racially abused in the CBS, Kilkenny.

8 While conceding that the matters complained of by counsel for the defendants were not included in the particulars in the statement of claim delivered herein, counsel for the plaintiff submitted that they could not have taken the defence by surprise given that they were included in medical reports on the plaintiff submitted by Dr. James Morrison, a consultant psychiatrist; reports which had been furnished to the defence and given that David Murray was tried and convicted for sexually abusing the plaintiff. In this connection, however, I had the opportunity of reading Dr. Morrison's reports and, while there is reference in them to Sally Hogan, there is no suggestion that she physically beat the plaintiff and neither is there any suggestion that, included in the ill treatment to which the plaintiff was subjected by Therese Connolly, was the fact that she imprisoned him in a cupboard nor, indeed, does Dr. Morrison say that the plaintiff told him that he had been sexually abused by David Murray. Counsel for the plaintiff did suggest that a Dr. Blennerhassett, who had examined the plaintiff on behalf of the defence, had been told by the plaintiff about sexual advances made to him by David Murray and I accept that to be so. However, I was never furnished with Dr. Blennerhassett's report.

9 While my instincts were to allow the trial to proceed notwithstanding the inadequacy of the particulars furnished on behalf of the plaintiff, viewed in the light of the plaintiff's evidence, I was concerned that the Supreme Court might not agree with me and that the plaintiff might be faced with a retrial which would not be in his best interests. I voiced that concern as a result of which the parties sought a short adjournment to obtain instructions following which it was agreed that I should adjourn the hearing to enable the plaintiff to deliver further particulars of his claim. This was done by notice dated the 9th day of January, 2006 and the trial resumed on the 28th day of February, 2006. On that occasion, counsel for the defence indicated that liability was in issue with regard to matters contained in the particulars dated 9th January, 2006, which were additional to those contained in the statement of claim delivered on 3rd March, 1998 and, moreover, that the defence contended that the plaintiff's claim in respect of those additional matters was statute barred.

10 The circumstances giving rise to the plaintiff's claim, as given in evidence by the plaintiff, are as follows:

11 The plaintiff was born in Saint Marylebone, England, on the 2nd day of June, 1960. His mother was an unmarried lady who had been working as a hairdresser in the city of Dublin where she met his father, a native of Uganda, who was then in Dublin studying for a doctorate, the nature of which the plaintiff is unaware. Following his birth, although she, herself, was a native of the Co. Roscommon, the plaintiff's mother placed him in the care of an institution known as Saint Patrick's Orphanage situate on the Kells Road, Kilkenny in the Co. Kilkenny, which I believe is a sub-institution of the first named defendant. The plaintiff was then only three weeks old. He had no further contact with his mother until some nine years ago when he succeeded in locating her. However, when he met her, while she did not deny that she was his mother, she made it quite clear that she wished to have nothing to do with him because she was then married with a family and expressed the belief that, had her husband learnt that she had had relations with a coloured man, he would divorce her. Since then, the plaintiff has had no further contact with his mother. Moreover, although he has attempted to locate him, he has been unable to make contact with his father. In that regard, the plaintiff has learnt that his father did visit him, once or twice, while he was an inmate at the Saint Patrick's Orphanage but that, if he did, on those occasions the plaintiff was fearful of his father because, apparently, as the plaintiff said, he was "a jet black man". Naturally, the father was upset when it appeared that his child was afraid of him with the result that he ceased to visit him.

12 David Connellan said that his early memories of Saint Patrick's Orphanage are very happy ones. He said that the nuns took very good care of him and, as far as he could recall, he was a very happy child there. He said that he started his schooling in first class at Saint Patrick's. However, in September, 1966, when he was about six and a half years of age, he was transferred to Saint Joseph's which was a residential institution and, at which, the plaintiff also attended school. Apparently, Saint Joseph's was originally intended as a girls” school but, at the time, 20 or 30 boys were transferred there and a play hall was transformed into a dormitory for them. Mr. Connellan told me that he...