Harpur v Brogan
|Mr. Justice Barr
|14 November 2019
| IEHC 770
|[2017 No. 3289 P.]
|14 November 2019
 IEHC 770
THE HIGH COURT
[2017 No. 3289 P.]
Personal injury – Damages – Delay – Plaintiff seeking damages – Whether the defendants could get a fair trial
Facts: The defendants, Ms Brogan, Ms Brennan and Ms Callaghan, were the trustees of a registered charity and religious society known as Saint Joseph’s – Daughters of the Heart of Mary (the congregation). The plaintiff, Ms Harpur, claimed damages against the defendants in respect of sexual, physical and emotional abuse which she alleged she suffered while a resident in an orphanage run by the order of nuns in Dún Laoghaire, County Dublin in the years 1965 to 1969. The plaintiff’s proceedings against the defendants were commenced by personal injury summons issued on 10th April, 2017. The defendants applied to the High Court seeking an order pursuant to the inherent jurisdiction of the Court, dismissing the plaintiff’s claim on grounds of inordinate and inexcusable delay in and about the commencement and pursuit of these proceedings. In the alternative, the defendants sought an order pursuant to the inherent jurisdiction of the Court dismissing the action due to the alleged impossibility of the defendants obtaining a fair trial by reason of the lapse of time between the events the subject matter of the proceedings and the time at which the proceedings were likely to come to trial.
Held by Barr J that, in circumstances where the primary perpetrators were either unidentified, or had died in the intervening years, the defendants could not get a fair trial at this remove. Barr J held that the action came within the test set down in O’Domhnaill v Merrick  IR 151 and the circumstances were of sufficient similarity to the decisions in Cassidy v The Provincialate  IECA 754, Kelly v O’Leary  2 IR 526 and McNamee v Boyce  IECA 19 that the Court was satisfied that it was appropriate to dismiss the action on grounds of delay, due to the fact that as a result of such delay the defendants could not get a fair trial.
Barr J held that the plaintiff’s action against the defendants would be dismissed.
The defendants are the trustees of a registered charity and religious society known as Saint Joseph's – Daughters of the Heart of Mary (hereinafter “the congregation”). In this action the plaintiff claims damages against the defendants in respect of sexual, physical and emotional abuse which she alleges she suffered while a resident in an orphanage run by the order of nuns in Dún Laoghaire, County Dublin in the years 1965 to 1969. The plaintiff's proceedings against the defendants were commenced by personal injury summons issued on 10th April, 2017.
In this application, the defendants seek an Order pursuant to the inherent jurisdiction of the Court, dismissing the plaintiff's claim on grounds of inordinate and inexcusable delay in and about the commencement and pursuit of these proceedings. In the alternative, the defendants seek an Order pursuant to the inherent jurisdiction of the Court dismissing the action due to the alleged impossibility of the defendants obtaining a fair trial by reason of the lapse of time between the events the subject matter of the proceedings and the time at which the proceedings are likely to come to trial.
It is useful at this juncture to set out a chronology of the events that are relevant to the determination of this application, which is as follows:
1958 – Plaintiff is born.
1965/1969 – Period of alleged abuse while a resident in the defendants' orphanage. The plaintiff was aged between 7 and 11 years during this period.
10/4/2017 – Personal injury summons issued by the plaintiff.
2/5/2017 – Appearance filed on behalf of the defendants.
22/5/2017 – Notice for particulars raised by the defendants.
31/8/2017 – Plaintiff furnishes replies.
5/12/2018 – Defence filed on behalf of the defendants.
5/12/2018 – Notice of motion grounding this application is filed, based on a grounding affidavit sworn by the first defendant on 4th December, 2018.
4/2/2019 – Motion comes on in the non-jury list; a direction is given that the plaintiff may furnish a replying affidavit within a period of six weeks.
21/9/2019 – A notice of intention to proceed is served by the plaintiff.
14/10/2019 – Replying affidavit filed on behalf of the plaintiff.
22/10/2019 – Hearing of this application.
In the plaintiff's personal injury summons issued on 10th April, 2017, the plaintiff alleges that while a resident in an orphanage run by the predecessors of the defendants, she was subjected to severe abuse of a physical, emotional and sexual nature. She described the abuse as occurring in the following manner: younger girls in the orphanage were put in the care of older residents. These older girls were known as “charge girls”. The plaintiff alleges that she was sexually abused by various “charge girls” at bath time, when they would touch her private parts while giving her a bath. She also alleges that they physically abused her by pushing her head under the water in the bath. She alleges that she was further abused by these girls, who would torment her and push her out of bed causing her to urinate on the floor. When this happened, the plaintiff alleges that she was subjected to degrading and prolonged punishment by two named nuns. She alleged that the form of punishment was that she was made to stand or kneel for prolonged periods in the one place. She would not be allowed to use the toilet during this time. As a result, she frequently soiled her clothes. The nuns would make her continue wearing the clothes and send her to class wearing the soiled garments.
The plaintiff further alleged that the “charge girls” would place a large quantity of salt in her food, which would make her get sick. When this happened, the nuns would again punish her in the manner outlined above. The plaintiff also alleges that the nuns inflicted emotional abuse on her by telling her that she was “useless”, “a horrible child” and “evil”. Finally, the plaintiff alleged that on one occasion when she attempted to escape from the orphanage by hiding in her father's car, that upon her discovery by the nuns, she was severely beaten about the body and was forced as a punishment to clean toilets and bathrooms and to make beds.
The plaintiff alleges that as a result of all of this abuse, she was caused to suffer severe and prolonged psychiatric difficulties, which have persisted throughout her life.
It is part of the plaintiff's case that the actions complained of in respect of the “charge girls” were part of a system of supervision that was tolerated or condoned by the nuns, or in the alternative, the nuns failed to exercise any adequate control in respect of the supervision of the younger girls by the older girls. It was alleged that they had effectively outsourced the issue of supervision of the younger children to the care of the older children.
In her replies to the defendants' notice for particulars dated 31st August, 2017, the plaintiff stated that she was unable to identify the names of the other residents in the orphanage whom it was alleged had mistreated and abused her. She was also unable to identify the older girls who were instructed by the nuns to supervise the plaintiff in the bath. She identified two nuns as being the nuns who had been in charge of her supervision generally while in the bath and who had inflicted the degrading punishments on her and who had called her the insulting names, as being Sister Keating and Sister Holmes. In response to the question as to which nuns had punished the plaintiff by making her stand in the corner, she stated that that had been done by all nuns then working in the orphanage and had been done by Sisters Keating and Holmes in particular.
Before leaving this section, it is worth noting that in their defence dated 5th December, 2018, the defendants admitted that the plaintiff had been admitted to Saint Joseph's Orphanage, Tivoli Road, Dún Laoghaire, County Dublin on or about 12th May, 1965. It was alleged by the defendants that she only resided there until 1966. It was admitted that she attended Saint Joseph's National School, which was located within the grounds of the orphanage, until in or about 1971. Other than that, each and every one of the plaintiff's allegations were denied by the defendants.
In an affidavit sworn on 4th December, 2018, the first defendant, who is the provincial leader of the congregation of the Daughters of the Heart of Mary, stated that as a result of the delay of approximately 48 years between the end of the period of alleged abuse and the commencement of the proceedings herein, the defendants have been caused to suffer severe prejudice in relation to their ability to defend the plaintiff's claim at the trial of the action. In particular, Ms. Brogan stated that Sister Keating died on 17th February, 1971, and Sister Holmes died on 10th August, 2013. She further stated that neither of these nuns worked at the orphanage as pleaded by the plaintiff. Both nuns were in fact principal teachers of Saint Joseph's Primary School. The plaintiff had specifically named one further member of the congregation, Sister Delahunty, and had pleaded that it was her who had prevented her from leaving the orphanage with her father. Ms. Brogan stated that Sister Delahunty died on 25th January, 2009.
The first defendant went on to state that the majority of the nuns that worked in the orphanage between 1965 and 1969 were now deceased. She listed four nuns who had died in the period 1969 to 2003. She...
To continue readingRequest your trial