O'D. -v- Minister for Education and Science & Ors, [2009] IEHC 227 (2009)

Docket Number:2001 17320 P
Party Name:O'D., Minister for Education and Science & Ors
Judge:Dunne J.
 
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THE HIGH COURT2001 17320 PBETWEENJ. O'D.PLAINTIFFANDTHE MINISTER FOR EDUCATION AND SCIENCE, IRELAND, THE ATTORNEY GENERAL AND DENIS MINIHANEDEFENDANTSJUDGMENT of Ms. Justice Dunne delivered on the 13th day of May, 2009 The plaintiff herein issued proceedings by way of plenary summons against the defendants on 27th November, 2001. The plenary summons was served on the first, second and third named defendants on 10th April, 2003. It is not entirely clear when the plenary summons was served on the fourth named defendant but an appearance was entered on his behalf on 7th May, 2003, by Messrs. O'Flynn, Exhams & Partners, solicitors. O'Flynn, Exhams & Partners took over the defence of these proceedings on behalf of the first, second and third named defendants ("the State defendants") on 24th July, 2006. A notice of change of solicitors was filed on that day. Thereafter, O'Flynn, Exhams & Partners have represented all of the defendants herein. The fourth named defendant herein is sued as the nominated representative of the Presentation Brothers, having been nominated for the purpose of these proceedings.Following the entry of appearances by the defendants, a statement of claim was delivered herein on 13th November, 2003. The statement of claim herein alleges, inter alia, as follows:"At all times material to these proceedings and in particular from the years 1968 to 1970, the plaintiff was a pupil at the above described school, and while therein, was subjected to a number of ongoing assaults of both a physical and sexual nature, which said assaults were carried out by members of the fourth named defendant's school and/or by lay teachers under its direction and control, with the result that the plaintiff has suffered and continues to suffer severe personal injury, loss and other damage."The school in question is described elsewhere in the statement of claim as G. School, otherwise G. Industrial School/St. J's School.The liability of the State defendants is said to derive from their responsibility for the welfare of children within the State and, in particular, the welfare of children who were placed in institutions such as that operated by the fourth named defendant herein. Thus, it was alleged that the State defendants were vicariously responsible to the plaintiff for the alleged personal injuries, loss and damage. It was also pleaded against the State defendants that the allegations against them arising out of the same facts gave rise to a constitutional tort for which they were also liable in damages.Following the delivery of the statement of claim, a defence was delivered on behalf of the fourth named defendant on 5th January, 2004. An exchange in respect of particulars took place between the plaintiff and the fourth named defendant between 5th January, 2004, and 10th May, 2005. A reply to the defence was furnished on 10th May, 2005.A defence was delivered on 12th January, 2006, on behalf of the State defendants and particulars were also raised by them.A notice of motion was issued herein on 16th May, 2008, on behalf of all the defendants, grounded on an affidavit of Richard Neville, solicitor. The relief sought in the notice of motion included the following:"(a) An order dismissing the plaintiff's claim for failure to commence the proceedings within the time limits provided for by the Statute of Limitations;(b) an order pursuant to the inherent jurisdiction of the honourable court, dismissing the plaintiff's claim by reason of his inordinate and inexcusable delay in prosecuting the same;(c) in the alternative, an order pursuant to the inherent jurisdiction of this honourable court, dismissing the proceedings by reason of the fact that the matters at issue between the parties cannot now be fairly tried;(d) further, or in the alternative, an order pursuant to the inherent jurisdiction of this honourable court, striking out the plaintiff's claim as against the first, second and third named defendants, by reason of the fact that it is unsustainable and/bound to fail."As can be seen from the notice of motion, three distinct points are made by the defendants against the plaintiff, namely: (i) the proceedings are statute barred;(ii) the matters at issue cannot now be fairly tried by reason of the inordinate and inexcusable delay in the prosecution of the action and by reason of the fact that the matters at issue cannot now be fairly tried;(iii) the action as against the State defendants is bound to fail. So far as the last of these points is concerned, it was conceded by counsel on behalf of the plaintiff that the claim against the State defendants would not be pursued following the decision of the Supreme Court in the case of Louise O'Keeffe v. Leo Hickey, unreported, 19th December, 2008.Mr. Gleeson S.C., on behalf of the plaintiff, made one other concession during the course of the hearing. He accepted that insofar as the plaintiff's claim was for damages for physical abuse as opposed to sexual abuse, that element of the claim is statute barred.It is now necessary to look more closely at the details of the plaintiff's claim as set out in the statement of claim and the replies to particulars and to consider the affidavit of Richard Neville grounding this application and the replying affidavits of Eugene Murphy sworn herein on behalf of the plaintiff.As mentioned previously, the plaintiff's claim is stated to arise out of assaults of a physical and sexual nature whilst he was a pupil at the school run by the Presentation Brothers. The assaults were alleged in the statement of claim to have occurred from 1968 to 1970. In the particulars of personal injuries set out in the statement of claim, some detail is given of the nature of the assaults and the abuse alleged. It is the plaintiff's case that he was a pupil at the school over a two-year period.The details of the abuse can be summarised as follows:The plaintiff was subject to a wholly unacceptable and abusive regime.He was not provided with adequate food and was constantly hungry.He worked in the fields and was so hungry that he would eat raw potatoes.He was abused by a Brother C.He was buggered by Brother C. on a number of occasions and touched inappropriately.He was abused by two other teachers, a Brother E. and an unnamed Brother.He alleged that he was beaten on a number of occasions and has outlined one particular beating by Brother C. with a billiard cue.He complained of a lack of education.He complained of a number of issues surrounding the death of his mother whilst he was a pupil at the school. The plaintiff went on to describe difficulties in his later life which he attributed to the sexual and physical abuse alleged to have occurred during the two years he was a pupil at the school.Particulars were raised in respect of the matters alleged in the statement of claim. The plaintiff was unable to furnish information in respect of the dates, details, times and places in relation to the alleged assaults, save in respect of a limited number of specific incidents. Even then, the amount of information provided was not such as to enable dates for any alleged incident to be ascertained save for one date which is said to have occurred two days after the plaintiff arrived at the school. Some further information was given as to the "unnamed" Brother and it appears that the plaintiff is of the view that this Brother may have been a Brother V.In a subsequent letter of 19th August, 2004, the plaintiff's solicitors furnished particulars of further physical and sexual abuse, including an incident of buggery, alleged to have been perpetrated by Brother C. and to a lesser extent, particulars of abuse alleged against Brother E. No dates were provided in relation to the alleged incidents. Finally, supplemental particulars of injury dated 10th May, 2005, were delivered. Nothing of significance turns on these.Richard Neville, in the affidavit grounding this application, pointed out a curious feature of the plaintiff's case. This was the description of the school herein as "an industrial school" and the fact that the plaintiff was of the view that he spent two years at the school. In fact, there was an industrial school at that location, but the industrial school closed in 1959, long before...

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