Delahunty v South Eastern Health Board

JurisdictionIreland
Judgment Date30 July 2003
Date30 July 2003
Docket Number[1997 No. 14022P]
CourtHigh Court

THE HIGH COURT

[1997 No. 14022P]

BETWEEN
MARTIN DELAHUNTY
PLAINTIFF
AND
THE SOUTH EASTERN HEALTH BOARD AND ST JOSEPH'S INDUSTRIAL SCHOOL KILKENNY AND THE MINISTER FOR EDUCATION AND SCIENCE
DEFENDANTS
Abstract:

Tort - Personal injury - Negligence - Sexual assault in school in 1976 - Delay and fairness of trial - Whether unjust to allow case to proceed - Vicarious liability - Whether acts committed in scope of employment - Whether Minister had non-delegable duty of care to plaintiff - Whether defendants liable in negligence - Whether Minister failed to discharge statutory and constitutional duties

Facts: The plaintiff sought damages for personal injuries arising out of a sexual assault in 1976 in a school in Kilkenny. The defendants contended that the delay was such as to make it unfair on the defendants to proceed with the case. The defendants also contended that the doctrine of vicarious liability did not apply because the assaults were not committed within the scope of employment. The Plaintiff contended that the defendants were negligent and that the Minister had a non-delegable duty of care to the plaintiff.

Held by O'Higgins J. in awarding damages in the sum of €75,000 to encompass pain and suffering to date and into the future that the delay was not such as to warrant the action being dismissed. The vicarious liability of the second defendant to the plaintiff had not been established. The Minister had no control over any aspect of the life of the plaintiff and the plaintiff was not owed a non-delegable duty of care. The second defendant was liable in negligence due to its lack of action. The Minister could not be made liable for the assault. The proceedings against the first defendant were struck out with no order by agreement between the parties.

Reporter: R.W.

1

Judgment of Mr. Justice O'Higgins dated the 30 day of July, 2003.

2

This case comes before the Courts in the following circumstances. The plaintiff is a 38 year old married man presently residing in Spain. In May, 1976 he was visiting a friend in St. Joseph's Industrial School in Kilkenny when he was sexually assaulted by a house parent in that institution. While the assault was not in the most serious of categories of sexual abuse to come before the Courts the plaintiff claims to have suffered severe consequences to which I will refer later. The plaintiff claims that he was not aware of how serious the sequelae of the incident were for many years. Although he was aware that he had psychiatric and psychological problems, he was not aware that those problems were at least partly attributable to the assault until 1996, despite the fact that he had seen many doctors and psychologists prior to that time.

3

The plaintiff was at no time a resident of the institution and therefore does not meet the criteria necessary for consideration for compensation outside the Court framework.

4

There is agreement between the parties that the proceedings against the first named defendant be struck out with no order as to costs.

5

1. The assault and its effects

6

The plaintiff was born in Kilkenny on 24th October, 1964 and was one of family of six. His childhood and his relationships with his family and friends were quite normal up to the time of the incident. He was friendly with a boy called James Donoghue who was his classmate at the national school and sat at the same table as the plaintiff. That boy lived in St. Joseph's Industrial School which was called the orphanage. He sometimes visited the plaintiff's home for a few weeks and sometimes for a day or a weekend. Children from the school frequently came to play in the plaintiff's home and it was also normal for the plaintiff to go to play pool in the orphanage or play around the grounds. It was the policy of the school to encourage such visits. In the course of his visits to the school he would sometimes go on walks by the river with Myles Brady, who was the house parent in charge of the house where James Donoghue lived.

7

In May, 1976 on the occasion giving rise to these proceedings the plaintiff, Mr. Brady and James Donoghue had been out on an excursion. When they returned to St. Joseph's, the house where James Donoghue lived appeared to be empty. The plaintiff, James Donoghue and Mr. Brady went to Mr. Brady's room. Mr. Brady sent James Donoghue out to make some tea and to bring some biscuits. After James Donoghue left, Mr. Brady locked the door and he referred to the fact that the plaintiff was wearing a scout belt. He said he also had one and took it out and showed it to the plaintiff. He looked at the plaintiff's belt and proceeded to open the plaintiff's belt and trousers and zipper. He took out the plaintiff's penis and started to fondle it and look at it. After that he asked the plaintiff to lie down on the bed and the teacher lay down beside him or behind him. He then started to hug the plaintiff and kiss his face. This went on for two or three minutes. After that James Donoghue came back and asked to get back into the room. That was the end of the incident.

8

The evidence of the plaintiff concerning the facts of the assault and its details is not in dispute. The consequences of the assault however and the liability of the defendants for it are

9

very much at issue in this case. The plaintiff did not tell anyone at home about the assault but the matter came to light a week or two afterwards when his mother saw him sticking pins into and scratching a photograph of Mr. Brady. The witness recalls going up to the orphanage with his parents and meeting a nun and a member of the Gardai. He did not make a written statement at the time.

10

After the incident the plaintiff felt confused and angry. It was common knowledge amongst his friends that Mr. Brady had been dismissed. They also knew that Mr. Brady had assaulted the plaintiff and that the plaintiff had reported the matter. He felt humiliated and rejected by the boys in his class because he had been the one who said something about the event and had broken a taboo about discussing such matters. He told the Court that he felt "angry, distanced from my friends whom I felt would not identify with me or be in my group of friends anymore. I felt basically that I could not talk to these people anymore when I met them in the street. They would not even say hello, I just passed by." The plaintiff claims that there was a barrier of some sort which did not exist before and has lasted until this day. He felt lonely and friendless. Even today the plaintiff feels stressed in social situations and is incapable of proper communication with people. This he claims effects every aspect of his life. The plaintiff said he felt depressed and estranged even from his own family. After leaving school the plaintiff worked in the family business for two years and then went to college to take a course in construction studies. He qualified as an assistant Quantity Surveyor after three years of study at the age of 22.

11

In 1987 about two months after he qualified as a chartered surveyor the plaintiff got a job in England which lasted about three months. He then returned and worked in the family business where he remained until March or April of 1998 when he left for Spain.

12

In 1988 he spent five months in Spain teaching English and visited Spain sporadically between 1998 and 1990.

13

In 1990 the plaintiff married his wife who was Spanish and lived and worked in Ireland from 1990 to 1993.

14

In 1993 the plaintiff moved to Spain permanently to follow his wife and his children who had gone there already.

15

Medical History

16

In 1987 the plaintiff attended Mr. Lambe a psychologist because he was feeling confused and depressed and was looking for guidance. The plaintiff does not believe he told Mr. Lambe about the assault.

17

In 1998 the plaintiff again visited Mr. Lambe who referred him to Dr. Griffin a psychiatrist. Dr. Griffin prescribed medication for depression but the plaintiff gave it up after a month.

18

In 1993 when he was in Ireland the plaintiff was advised by a Dr. Murphy to see Martin Doolan a psychologist in Kilkenny. The reason he sought assistance was that he felt unable to cope with the pressure of work, "unable to relate to people, unable to feel any peace in my work or in my family, I was depressed, I felt very out of place."

19

From 1993 to 1995 when he was living in Spain the plaintiff was working on and off and had days in which he couldn't go to work because he was depressed. He would occasionally phone home to one of the people he had met at prayer meetings to seek advice. However he did not seek medical help in Spain, at that time.

20

In 1995 the year that his father died the plaintiff suffered a lot from depression and didn't go out very much. He was referred to a Mr. Perez, a psychologist. In that year also he was admitted to hospital for an overdose of tablets. This was a suicide attempt because he could not see any solution to his problems

21

and thought he was a failure all round. He was depressed most of the time and could not fit in. Family life was unhappy and there were regular threats of separation. In his evidence the plaintiff said he was not sure who he was or what he was or whether he loved his wife; "I believe that I could not love her because I did not love myself. I did not accept myself and I was very difficult to live with I think as a depressive type of individual."

22

Following his hospitalisation in 1995 the plaintiff was put on medication by a psychiatrist in the hospital, Dr. Manual Gurpegui. He recommended medication and the plaintiff thinks that he rejected it at that stage.

23

The plaintiff was referred to a psychologist Ms. Concha Mediano and visited her over a period of about six months in 1996. The plaintiff believes that she was the first professional he told about what had happened in the...

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