Donegan v Min for Education and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Neill
• Judgment Date: 16 March 2007
• Neutral Citation: [2007] IEHC 119
• Court: High Court
• Date: 16 March 2007

[2007] IEHC 119

THE HIGH COURT

[No. 5200 P/2004]

DONEGAN v MIN FOR EDUCATION & ORS

BETWEEN

ELIZABETH DONEGAN

PLAINTIFF

AND

THE MINISTER FOR EDUCATION AND SCIENCE IRELAND AND THE ATTORNEY GENERAL THE NORTH EASTERN HEALTH BOARD AND BY ORDER NOREEN O'SHEA AND THE MINISTER FOR HEALTH AND CHILDREN

DEFENDANTS

HEALTH ACT 1970

HEALTH AUTHORITIES ACT 1960

HEALTH ACT 1970 S4(1)

HEALTH ACT 1970 S6

HEALTH ACT 1970 S34

HEALTH ACT 1970 THIRD SCHED S2(1)

HEALTH ACT 1970 S36

HEALTH ACT 1970 S37

HEALTH AUTHORITIES (DISSOLUTION) ORDER 1971 SI 117/1971

HEALTH ACT 1970 S37(5)

MCGRATH v MCDERMOTT 1988 IR 258

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998 16 5907

HEALTH AUTHORITIES ACT 1960 s15(1)

HEALTH AUTHORITIES ACT 1960 s15

O'DOMHNAILL v MERRICK 1984 IR 151

TOAL v DUIGNAN (NO 2) 1991 ILRM 140

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

MACH (J) v M (J) & ORS 2004 3 IR 385

R (J) v MIN FOR JUSTICE & ORS UNREP SUPREME 1.2.2007 2007 IESC 7

1 JUDGMENT of Mr. Justice O'Neill delivered on the 16th day of March, 2007

2 Before the court were two motions brought by the fourth and fifth named defendants. The fourth named defendant in its motion seeks an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff's claim on the grounds that it fails to disclose any cause of action against the fourth named defendant, alternatively an order dismissing the plaintiff's claim against it on the grounds of inordinate inexcusable delay in instituting these proceedings which delay has prejudiced the fourth named defendant and would be an infringement of the fourth named defendant's right to a fair trial. The fourth named defendant also makes the case that the plaintiff's claim is state barred.

3 The fifth named defendant in her motion seeks an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff's claim against the fifth named defendant on the grounds of inordinate and inexcusable delay in the institution of the proceedings and on the grounds that to allow the action to proceed to trial would be a breach of the fifth named defendant's right to a fair trial.

4 The plaintiff in her statement of claim claims damages against all defendants for personal injuries, distress, trauma, loss and damage and expense caused by the negligence and breach of duty (including breach of statutory duty), breach of fiduciary duty and breach of duty owed to her to protect her constitutional rights and to uphold her human rights as protected by the European Convention on Human Rights.

5 The plaintiff claims that after she became pregnant out of wedlock when she was about 20 years of age and had a son, she was detained in an Unmarried Mothers Home which was owned and managed by the fifth named defendants at Dunboyne in the County of Meath. She claimed to have been detained in this institution from 1953 to 1955 and from 1955 until 1974. She alleges she was detained in a similar home owned and operated by the fifth named defendants in Co. Cork. She alleges that continuously during her aforesaid detention and committal in these institutions she was subjected to abuse, intimidation, inhuman and degrading treatment, false imprisonment, trespass to the person, breach of her constitutional rights including her right to bodily integrity; that she was physically neglected and forced to do degrading and laborious tasks not fit for her and required to work to extreme degrees for which she received no payment. In addition she claims that the defendants facilitated the removal of her children from her and the placing of them for adoption with third parties without her consent.

6 In response to a request for particulars from the fifth named defendant, the plaintiff stated she was admitted to the fifth named's institution in Cork on the 26th March, 1960 and left it in or about July of 1964. She stated that she was admitted to the fifth named defendant's institution in Dunboyne on or about the 17th June, 1969 and left it on or about the 18th August, 1972.

7 The plaintiff stated in this reply that she could not specifically identify the nuns from the fifth named defendant's congregation against whom allegations were made, but that she could recall two nuns whose names she could not recall who used to make her cook in a hot kitchen for a 100 to 150 people and if they believed that what she doing was not correct she would be pushed out of the kitchen and pushed to the top of the stairs where she would have to stay for the day without anything to eat or drink.

8 A detailed request for particulars from the fourth named defendant has not yet been replied to.

9 At paragraph 30 of an affidavit sworn on the 14th December, 2005 by Sr. Noreen O'Shea on behalf of the fifth named defendants the following is said:

10 2 "30. As far as can be ascertained, the vast majority of the sisters which the congregation believes may have been in one or other of the institutions at the time stipulated by the plaintiff and particularly sisters who were in a positions of authority are now dead. To best of the congregation's knowledge, at least 24 sisters have now died. Amongst all of the institutions and timeframe as referred to by the plaintiff, in or about 12 sisters have been identified who may have been there at the time complained of and who are still alive. The majority of the sisters are very elderly at this point, two of the sisters are in their nineties, four of the sisters are in their eighties, four of the sisters are in their seventies and only two of the sisters are in their sixties and one of these sisters will be 70 next May. While two of those sisters have some memory of a person matching the plaintiff's description, there is little or nothing in the way of detailed memory available which could assist in rebutting the plaintiff's claim or any detail of it, (had the plaintiff put in any detail herself)."

11 At paragraph 10 of this affidavit the following is stated:

12 2 "10. While the women would have arrived in Ard Mhuire in similar circumstances, it was the practice that personal details or histories were not discussed in the facility, either amongst the staff, or between the staff and the women.

13 11. As a matter of strict practice, the sister-in-charge in Ard Mhuire and/or the mid-wife/nurse (who was also a Good Shepherd Sister) would have been the only persons who knew of the personal, family or other background of the women. This reality is of particular relevance to the position the congregation finds itself in now in seeking to defend a claim going back five decades."

14 Further on at paragraph 33 the following is said:

15 2 "33. The contemporaneous records in the possession of the congregation are an extract from the admissions register of the facility known as St. Mary's in Cork and a document entitled "admission form"…These appear to confirm that the plaintiff did attend the facilities on different occasions. It also appears to contradict the plaintiff's own assertion that she was detained in St. Mary's in Cork for upwards of 20 years.

16 34. The extract from the admission register suggest that the plaintiff was in Dunboyne in 1960 and was transferred to St. Mary's, Cork from there in that year. The date of transfer appears to be the 26th March, 1960. The records state that the plaintiff was taken out of Cork by her mother in July, 1964 (which suggests she was there for a period of 4 years). It seems that she returned to Cork in 1969 (having been in Dunboyne since April of 1967) and remained in St. Mary's, Cork until 1972. Following that it appears that the plaintiff went to another facility known as the Clifton Convalescent Home, also run by the congregation for about two years. This was a facility in which it appears that the plaintiff worked and, contrary to her assertions, was paid by the congregation for a couple of years. It is understood that the plaintiff left Clifton Convalescent Home, apparently to go to a wedding, and did not return to work in Clifton Convalescent Home. It is also understood that she may have returned to Clifton Convalescent Home to collect her belongings having previously indicated that she had obtained work in Dublin.

17 35. I beg to refer to a true copy of an assessment carried out on the plaintiff upon which marked "No's 3" I have signed my name prior to the swearing hereof. This was compiled by Sr. Eilish Kinnane who was than a Masters student in psychology. This record, insofar as it goes, supports the congregation's view as the plaintiff's history in the various facilities. These documents constitute the extent of the congregation's current knowledge of her tenure therein."

18 At paragraph 38 of this affidavit the following is said:

19 2 "38. Sr. Carmel Higgins was the sister-in-charge of St. Mary's on both of the occasions when (at least in accordance with the attendance record) the plaintiff was present in St. Mary's, Cork. She was also the Superior in Clifton Convalescent Home when the plaintiff was there. Her death is of particular relevance because of the management structure in place at the time. The sister-in-charge was responsible for all decision making in relation to the residents and only she would have had any personal information on the residents or their backgrounds. It would have been Sr. Carmel both in St. Mary's and in the Clifton Convalescent Home that residents would have gone to had they had any issues in relation to their stay, or if they wished to leave the facilities."

20 The following is said at paragraph 42:

21 2 "42. For the sake of completeness there are three persons located by the congregation who have any recollection of the plaintiff.

22 (a) One has a vague recollection of the plaintiff being in Ard Mhuire in Dunboyne. In...