O'Dwyer v Daughters of Charity of St Vincent de Paul and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 21 October 2015
• Neutral Citation: [2015] IECA 226
• Docket Number: [C.A. No. 99 of 2015]
• Court: Court of Appeal (Ireland)
• Date: 21 October 2015

O'Dwyer v Daughters of Charity of St Vincent de Paul & Ors

ELIZABETH ANNE O'DWYER

Plaintiff/Appellant

- AND -

THE DAUGHTERS OF CHARITY OF ST. VINCENT DE PAUL

Defendants/Respondents

AND

THE SISTERS OF OUR LADY OF CHARITY OF REFUGE

Defendants

AND

HEALTH SERVICE EXECUTIVE

Defendants

[2015] IECA 226

Finlay Geoghegan J.

Peart J.

Hogan J.

Appeal No. 99/2015

THE COURT OF APPEAL

Damages - Breach of constitutional rights - Inordinate delay - Appellant seeking damages for personal injury and psychological and mental distress arising from negligence, breach of duty and breach of constitutional rights - Whether case can be brought within the concealed fraud exception

Facts: The appellant, Ms O'Dwyer, claimed that while in the care of an institution operated by the second respondent, the Sisters of Our Lady of Charity of Refuge, in 1968, she was raped by a person unknown and became pregnant. She claimed that she was sent to reside at a 'mother and baby home' known as St. Patrick's, Navan Road, Dublin 7, allegedly managed and operated by the first respondent, the Daughters of Charity of St. Vincent de Paul. She gave birth to a son at St. James' Hospital in March 1969 and shortly thereafter returned to St. Patrick's. She alleged that she was separated from her son and was only allowed to see him for the purposes of feeding. She claimed that in May 1969 the Daughters of Charity informed her that her son was being put up for adoption, a course of action to which she said that she was steadfastly opposed. She furthers said that her son was taken from her in July 1969 and that she was not afforded an opportunity to say goodbye. The appellant subsequently obtained documents under the Data Protection Acts which appeared to indicate that she signed various consent documents in May and October 1969. After signing the first of the consent forms the appellant returned to the second respondent in Drumcondra where she continued working in the 'Magdalene laundries'. Some months later, she maintained that she was presented with the final adoption papers and was informed by a Sister Columba that should she fail to sign them she would be "put out on the street". The appellant contended that due to the undue influence and duress she was placed under, she felt compelled to sign the adoption papers. In 2013, she claimed damages for personal injury and psychological and mental distress arising from the negligence, breach of duty and breach of constitutional rights arising from the adoption of her son. She further pleaded that she was entitled to rely on ss. 71 and 72 of the Statute of Limitations 1957 as the respondents were guilty of conduct of a fraudulent nature. The High Court struck out her claims against the first respondent on the grounds that they were statute-barred and also by reason of inordinate and inexcusable delay ([2015] IEHC 68). The appellant appealed to the Court of Appeal against this decision while also seeking to adduce new evidence on this appeal. She claimed that those involved in the adoption process impliedly represented to her that what was happening was routine, regular and lawful when, viewed objectively, they ought to have realised that the practice was irregular and unlawful. She claimed that the failure to address her legal rights in the manner alleged amounted to concealed fraud such as would postpone the running of time for the purposes of s. 71 of the Statute of Limitations 1957.

Held by Hogan J that, having applied the test for the admission of new evidence pursuant to the special leave of the appellate court in Murphy v Minister for Defence [1991] 2 IR 161, and having considered the particularly unfortunate circumstances of the appellant, he proposed, as an exceptional measure, to treat the new evidence sought to be adduced as part of the relevant evidence for the purpose of determining the appeal. Having considered whether the case could be brought within the concealed fraud exception provided for in s. 71, referring to Kitchen v Royal Air Forces Association [1958] 1 WLR 563, Hogan J held that the evidence before the High Court did not establish that there was concealment by or on behalf of the first respondent of the wrongful conduct alleged against it in relation to the cause of action pleaded; there was equally no evidence that the first respondent failed to disclose relevant facts known only to it which, if disclosed, would have founded the cause of action pleaded.

Hogan J held that the appellant's claim is statute-barred as against the first respondent. He upheld the decision of the High Court to dismiss the appellant's claim.

Appeal dismissed.

1 1. This is an appeal brought by the plaintiff against the decision of Kearns P. striking out her claim against the first named defendant, the Daughters of Charity, on the grounds that they were statute-barred and also by reason of inordinate and inexcusable delay: see EAO v. Daughters of Charity [2015] IEHC 68. The plaintiff also seeks to adduce new evidence on this appeal. It is important to make clear that the plaintiff's claim against the second and third named defendants remains in being.

2 2. There is no doubt but that the plaintiff's life has been a very difficult one. She was born in 1947 and from the age of six was placed in the care of various institutions and industrial schools. In or about June 1968 the plaintiff contends that she was in the care of an institution operated by the second defendant located at High Park, Drumcondra, Dublin 9 when, while absent from the institution for a time, she was raped by a person unknown and became pregnant. Upon discovering that she was pregnant, the plaintiff claims that she was sent to reside at a so-called 'mother and baby home' known as St. Patrick's, Navan Road, Dublin 7. The plaintiff claims that this institution was managed and operated by the Daughters of Charity, a religious order.

3 3. The plaintiff gave birth to a son at St. James' Hospital on 2 ^nd March 1969 and shortly thereafter returned to St. Patrick's. She alleges that she was separated from her son and was only allowed to see him for the purposes of feeding. She further claims that she was precluded from bonding with her son or developing any natural relationship with him.

4 4. The essence of her claim is that in May 1969 the plaintiff claims that the Daughters of Charity informed her that her son was being put up for adoption, a course of action to which she says that she was steadfastly opposed. The plaintiff furthers says that her son was taken from her at the beginning of July 1969 and that she was not afforded an opportunity to say goodbye. The plaintiff subsequently obtained documents under the Data Protection Acts after these proceedings had been commenced appeared to indicate that the plaintiff signed various relevant consent documents on the 5th May 1969 and the 1st October 1969.

5 5. After signing the first of the consent forms the plaintiff returned to the second defendant in Drumcondra where she continued working in the 'Magdalene laundries'. Some months later, the plaintiff maintains that she was presented with the final adoption papers and was informed by a Sister Columba that should she fail to sign them she would be "put out on the street". The plaintiff contends that due to the undue influence and duress she was placed under, she felt compelled to sign the adoption papers. The plaintiff subsequently left the institution in Drumcondra and went on to marry and have seven other children.

6 6. If the plaintiff's account is correct, then there is no doubt but that she led an extremely difficult life which was beset by tragedy. This is apparently borne out by a psychiatric report prepared by Dr. Maireád O'Leary. In that report Dr O'Leary states that the plaintiff was institutionalised in very harsh environments throughout her life until she was approximately twenty two years old and has limited insight into how appalling her life was. She had no freedom, was physically abused and frightened, and was forced to work very hard for no remuneration.

7 7. The plaintiff states that she feels deeply ashamed and embarrassed by the adoption of her first son and she thinks about him regularly. There is added poignancy in the fact that some time during 2008 the plaintiff, with the assistance of one of her children, set about trying to locate her son. She subsequently discovered that he had passed away in 2004.

8 8. The plaintiff commenced the present proceedings on 30 ^th September 2013. She claimed damages for personal injury and psychological and mental distress arising from the negligence, breach of duty and breach of constitutional rights arising from the adoption of the plaintiff's son. She further pleaded that she was entitled to rely on ss. 71 and 72 of the Statute of Limitations 1957 as the defendants were guilty of conduct of a "fraudulent nature."

9 9. At the time of the institution of the plaintiff's claim, the relevant limitation period for a personal injury action was six years. It is not, I think, really disputed but that, subject to the question of whether the running of time should be postponed, the action is otherwise statute-barred. The first question, therefore, is whether there is any basis on which it could be said that there has been any concealed fraud (in the special sense in which that term is used in s. 71(1 )(b) of the Statute of Limitations 1957)("the 1957 Act") on the part of the first defendant such as would operate to take the present proceedings outside the scope of the limitation period otherwise prescribed by the Statute of Limitation.

Relevant statutory provisions

10 10. For this purpose the plaintiff relies on s. 71 of the 1957 Act. Section 71 relates to the postponement of a limitation period in cases of fraud and...