D. O'C. v A. M. McD. and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Diarmuid B. O'Donovan
• Judgment Date: 06 October 2006
• Neutral Citation: [2006] IEHC 299
• Docket Number: [No. 9930 P]/2001]
• Court: High Court
• Date: 06 October 2006

[2006] IEHC 299

THE HIGH COURT

[No. 9930 P]/2001]

[No. 3329 P/2003]

O'C & O'S v McD & ORS

BETWEEN

D. O'C.

PLAINTIFF

AND

A.M.McD., THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

AND

BETWEEN

M. O'S.

PLAINTIFF

AND

THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND, THE ATTORNEY GENERAL, M. M. AND D. K.

DEFENDANTS

RSC O.19 r28

CROWLEY v IRELAND & ORS 1980 IR 102

HOLOHAN v MIN FOR DEFENCE & ORS UNREP KINLEN 30.7.1998 1998/21/8098

FOX v HIGGINS 1912 ILGR 222

SCHOOL ATTENDANCE ACT 1926 S5

RULES OF THE NATIONAL SCHOOLS r27

RULES OF THE NATIONAL SCHOOLS r89

RULES OF THE NATIONAL SCHOOLS r12

RULES OF THE NATIONAL SCHOOLS r14(8)

M v IRELAND (NO 2) 1997 2 IR 141

DELAHUNTY v SOUTH EASTERN HEALTH BOARD & ORS 2003 4 IR 361

O'K (L) v H (L) & ORS UNREP HIGH COURT DE VALERA J 20.1.2006 2006 IEHC 13

M (T) v H (J) & ORS UNREP JOHNSON 18.7.2006 2006 IEHC 261

JUDGMENT of

Mr. Justice Diarmuid B. O'Donovan

1 delivered on the 6th day of October, 2006.

2 This judgment is circulated in redacted form to avoid identification of parties

3 The first named plaintiff herein, D. O'C., was a pupil at the Christian Brothers Primary School, in Co. K., during the years 1959 to 1964 inclusive. Mr. O'C. alleges that, during that period, he was assaulted and sexually abused by the principal of the school, one D. H., who was also a member of the Christian Brothers congregation.

4 The second named plaintiff herein, M. O'S., was a pupil at a National School in Co. C., during the years 1962 to 1964 inclusive. Mr. O'S. alleges that, during that period, he was viciously continuously assaulted and/or battered and/or otherwise suffered trespass to his person at the hands of one D. K., the fifth named defendant in the above entitled proceedings at the suit of Mr. O'S., who was a teacher at the said school and a member of the Christian Brothers congregation.

5 In each of the above entitled proceedings, the said plaintiffs claim damages for personal injuries alleged to have been suffered by them as a result of the said alleged assaults against (inter alia) the Minister for Education and Science, Ireland and the Attorney General on the grounds that each of the said defendants are both directly and vicariously liable for the alleged actions of the said D. H. and the said D. K. Each of the said plaintiffs also claim that the assaults and personal injuries allegedly suffered by them were attributable to a deliberate and conscious violation of their constitutional rights on the part of the defendants.

6 While denying all of the matters alleged against them, the said defendants, the Minister for Education and Science, Ireland and the Attorney General (hereinafter referred to as "the State defendants") assert that the matters alleged in these proceedings do not give rise to any cause of action stateable in law against them and, accordingly they have applied to the Court pursuant to the provisions of O. 19 r. 28 of the Rules of the Superior Courts to dismiss the claim of each plaintiff against the State defendants on the grounds that it discloses no cause of action against those defendants or, alternatively, for an order dismissing the claim of each plaintiff against the said defendants on the basis that the proceedings herein against those defendants constitute an abuse of process. This judgment is concerned with those applications.

7 The said applications of the State defendants are grounded, in each of the above entitled proceedings, on an affidavit of Elizabeth Regan, a Higher Executive Officer within the Department of Education and Science, sworn on 22^nd August, 2005, and, insofar as the claim of the said D. O'C. is concerned, a replying affidavit on behalf of Mr. O'C. was sworn by one Patrick O'Riordan, a solicitor in the firm of Lavelle Coleman, Solicitors, who are the solicitors for Mr. O'C., on the 6^th July, 2006 and, insofar as the claim of M. O'S. is concerned, a replying affidavit by one David N. O'Meara, the principal in the firm of David O'Meara and sons, who are the solicitors for M. O'S., was sworn on the 2^nd November, 2005. It is unnecessary, I think, for the purpose of this judgment, to review in detail the contents of those several affidavits. It is sufficient, I believe, that I indicate that, in the light of the contents thereof, I am persuaded of the following facts, namely;

8 (a) That each of the above named plaintiffs was, indeed, a pupil of the said schools during the periods aforesaid and that, during those periods, each of them was subjected to the assaults of which they complain; in the case of D. O'C., at the hands of one D. H., who was the principal of the Christian Brothers Primary School in Co. K. and a member of the Christian Brothers congregation and, in the case of M. O'S., at the hands of D. K., who was a teacher in Co. C. and also a member of the Christian Brothers congregation.

9 (b) That neither of the said schools was owned, managed or operated by the Minister for Education and Science nor did they come within her governance or control.

10 (c) That, at all times material to these proceedings, the overall responsibility for the ownership, management, operation, governance and control of each of the said schools lay in the case of the Christian Brothers Primary School in Co. K. with the patron of the said school who was and is the Bishop of Kerry and, at the time of the events which are alleged to have given rise to Mr. O'C.'s claim, was...