G.F.B. v T.B.

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 16 February 2016
• Neutral Citation: [2016] IEHC 97
• Docket Number: [2011 No. 7290 P.]
• Court: High Court
• Date: 16 February 2016

[2016] IEHC 97

THE HIGH COURT

Barr J.

[2011 No. 7290 P.]

BETWEEN

G. F. B.

PLAINTIFF

AND

T. B.

DEFENDANT

Tort – Damages & Restitution – Quantum of damages – Sexual assault – Gravity of injury

Facts: The plaintiff sought an order for general and exemplary damages against the defendant for sexually abusing the plaintiff for several years. The plaintiff contended that the defendant being the former living partner of his mother had sexually abused the plaintiff on various occasions due to which the plaintiff had suffered in his studies as he had to attend a lot of counselling sessions in that regard. The defendant alleged that the allegations made by the plaintiff were false and misleading.

Mr. Justice Barr granted an order for general as well as exemplary damages to the plaintiff. The Court held that in order to award damages for sexual assault, three things had to be kept in mind, namely fairness to the plaintiff, fairness to defendant and proportionality to the legal scheme of award. The Court observed that exemplary damages were awarded in situations where the injury of the plaintiff was aggravated by malice or discourtesy. The Court found that though there was no specific claim for any psychiatric injury, yet the plaintiff was traumatised by the conduct of the defendant and thus, the plaintiff should be awarded general damages. The Court held that denial of liability by the defendant was no ground to award aggravated damages. The Court found that the defendant though denying any allegations made by the plaintiff had filed a counter claim against the father of the plaintiff for negligence and breach of duty and thus, the conduct of the defendant warranted that an order for aggravated damages should be awarded to the plaintiff. The Court granted an order for the dismissal of the counter claim filed by the defendant.

JUDGMENT of Mr. Justice Barr delivered on the 16th day of February, 2016

Introduction

1 The plaintiff in this case is a young man, having been born on 26th April, 1994. He alleges that he was sexually abused by the defendant, who was in loco parentis towards the plaintiff in his early years. It is alleged that the abuse was carried out on a frequent basis from the time that the plaintiff was approximately seven years of age until he was ten years of age. It is alleged that the defendant assaulted the plaintiff by inserting his hand under the plaintiff's clothing and touching him on the penis. It is alleged that the abuse took place in the defendant's car and in the living room in his house. In order to understand the background to this case, it is necessary to set out briefly the somewhat unusual family circumstances of the plaintiff.

2 The plaintiff's mother, M.B., had been in a relationship with the defendant from circa 1975 to 1985. Although they were not married, they lived together as man and wife. They resided in the defendant's home in Co. Kilkenny. During this relationship they had two daughters, S.B. and B.B. In 1985, the plaintiff's mother left the defendant and moved to a village in Co. Kerry. The plaintiff's mother then started a relationship with Mr. M.F., the plaintiff's father. She knew M.F. for years, as he had been married to one C.F., who lived near the plaintiff in Dublin.

3 The plaintiff's mother and M.F. had two children, a girl, J.F.B., and the plaintiff. It appears that the plaintiff's mother continued to reside in Co. Kerry. The plaintiff's father, who had moved to a house in Co. Kildare, used to travel down to Kerry a number of times each week to be with the family. The rest of the time he worked as a taxi driver in Kildare and Dublin.

4 During the school holidays, the plaintiff's mother used to bring the plaintiff and his older sister to live with the defendant in Co. Kilkenny. The plaintiff's mother, the plaintiff and his sister used to reside in the house, where the defendant lived with his mother during the holiday periods. The defendant worked in a bakery owned by a member of his family and also in a company which manufactured medical equipment. On occasion, the defendant used to deliver medical equipment, including beds and bed parts, to hospitals and nursing homes. It is common case that the defendant used to allow the plaintiff to accompany him when making deliveries of medical products and deliveries from the bakery.

5 The defendant maintains that the allegations of sexual abuse made by the plaintiff are a total fabrication. He alleges that the allegations have been made up by the plaintiff at the behest of his father, who was jealous of the good relationship which the defendant had with the plaintiff's mother, even after their relationship had ended. He also alleges that the allegations are an attempt to wrongfully extract money from him, as the plaintiff and his father know that he received money from a road traffic claim.

6 It is also noteworthy that the allegations of sexual abuse were first made by the plaintiff in August 2004, to M.F.'s ex-wife, C.F., with whom the plaintiff was staying while his father was out working. This event will be described in more detail later in the judgment. Suffice it to say at this stage, the plaintiff's mother and the defendant seemed to be on good terms even after the break-up of their relationship; similarly, the plaintiff's father and his ex-wife seemed to be on good terms after the break-up of their marriage.

The allegations of sexual abuse

7 The plaintiff stated that he had stayed at the defendant's house, along with his mother and sister, during the Easter, summer and Halloween school holidays. He stated that the defendant worked in a bakery, which was owned by his brother. He also worked in a medical equipment factory nearby. On occasion, the plaintiff stated that he would accompany the defendant in his car, when he was making deliveries of medical products or bakery products. He recalled that at various times, the defendant had a red Golf estate car and a blue Almera.

8 The plaintiff stated that the abuse began when he was going on these delivery runs with the defendant. The plaintiff stated that he would be sitting in the front passenger seat. The defendant would stretch across with his left hand and touch him on the leg. Then he would move his hand up the plaintiff's leg, pull down the zip on his jeans, insert his fingers into the crotch area and touch him on the penis.

9 The plaintiff stated that this activity started when he was seven or eight years of age and lasted until he was approximately ten years of age.

10 The plaintiff recalled one particular occasion when they were in the car making a delivery of bed parts to a nursing home. The plaintiff recalled that the defendant started by rubbing his leg and then moved his hand up, placed his hand under his underpants and began to touch him on the genitals. This lasted for a few minutes, until they were flagged down by a Garda; the defendant received a ticket for speeding. They then continued on their journey and, after a short while, the defendant again started to touch the plaintiff on his genitals. The plaintiff stated that this lasted for a couple of minutes.

11 The plaintiff stated that he also recalled an occasion when he and the defendant travelled to a market in Kildare town. They were bringing bakery products to a man named Colm, who had a stall at the market. On the way to the market, the defendant again touched him on the leg and the genitals. The plaintiff stated that he would be wearing jeans or tracksuit bottoms at the time. The plaintiff stated that this happened on a number of occasions when they went to various markets.

12 The plaintiff also stated that he was abused by the defendant in the living room in the defendant's house. He stated that he would be sitting on the couch in the living room and, when the others had gone to bed, the defendant would move over beside him and touch him on the genitals. He stated that sometimes the defendant ejaculated. He estimated that this took place more than five times.

13 The plaintiff also stated that on occasion the defendant made him touch the defendant's penis. He stated that this happened both in the car and at home in the defendant's house.

14 The plaintiff stated that the abuse came to an end when, on one occasion, the defendant moved over to sit beside him on the couch in the living room. The plaintiff stated that he told the defendant to stop and the defendant asked him ' What's wrong?' The plaintiff said that he told the defendant that he did not want this anymore. He said that he would tell his mother. The defendant said that if he did tell his mother, the plaintiff would be sent away. The plaintiff stated that he was afraid when the defendant said this to him. However, there was no further abuse after that occasion.

15 The plaintiff stated that he disclosed the abuse in the following manner: on 20th August, 2004, he had been at home with his father in the village in Kildare. He telephoned his mother, who he had not seen for a number of weeks, and who was in Kilkenny. She came up in the car to see him and bring him back to Kilkenny. However, when she arrived at the house, the plaintiff said that he would not go with her to Kilkenny. He did not say why he would not go. The plaintiff's mother then got back into the car and headed back to Kilkenny. On the way back, she telephoned the plaintiff and listed off a number of names of people who might have upset him. The plaintiff stated that when she mentioned the defendant's name, he said ' Yes, that's why'. He did not elaborate on this.

16 The plaintiff stated that on that evening, he stayed with his father's ex-wife, C.F., while his father was out working in his taxi. The plaintiff was very upset that evening. He told C.F. how the defendant had abused him; that was why he was so upset. She then rang the plaintiff's father.

17 The plaintiff stated...