Kelly v O'Leary

• Jurisdiction: Ireland
• Judge: Mr Justice Kelly,
• Judgment Date: 22 June 2001
• Neutral Citation: [2001] IEHC 218
• Docket Number: [1998 No. 3790P]
• Court: High Court
• Date: 22 June 2001

[2001] IEHC 218

THE HIGH COURT

1998/No 3790p

KELLY v. O'LEARY

BETWEEN

ELLEN KELLY

PLAINTIFF

AND

MARIE O'LEARY

DEFENDANT

Citations:

CHILDREN ACT 1908 S12

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

SOUTHERN MINERAL OIL LTD V COONEY 1997 3 IR 549

STATUTE OF LIMITATIONS (AMDT) ACT 2000 S3

STATUTE OF LIMITATIONS ACT 1957

O'DOMHNAILL V MERRICK 1984 IR 151

TOAL V DUIGNAN (NO 1) 1991 ILRM 135

GUERIN V GUERIN 1992 2 IR 287

SHEEHAN V ALMOND 1982 IR 235

Synopsis:

CRIMINAL LAW

Delay

Sexual abuse - Allegations regarding orphanage - Whether action should proceed in interests of justice - Whether delay inordinate and inexcusable - Whether serious risk of unfair trial - Statute of Limitations (Amendment) Act, 2000 (1998/3790P - Kelly J - 22/6/01) [2001] 2 IR 526

Kelly v O'Leary

The plaintiff had initiated proceedings relating to acts allegedly carried out by the defendant at the Goldenbridge orphanage. The alleged acts dated back to a period between 1934 and 1947. The defendant sought to have the action dismissed. Mr. Justice Kelly was satisfied that the delay in bringing the proceedings was inordinate and inexcusable. The plaintiff's claim would be dismissed.

1 JUDGMENT of Mr Justice Kelly,delivered the 22nd day of June 2001

INTRODUCTION

2 The Plaintiff is in her seventieth year. She was married fifty years ago and has nine children all of whom are over twenty one years old. She brings these proceedings seeking damages in respect of events alleged to have occurred between 1934 and 1947. This action began on the 26th March, 1998 over fifty years from the last wrongful act alleged.

3 Given the remove in time between the acts alleged and these proceedings the defendant seeks to invoke the inherent jurisdiction of the court to dismiss this action at this stage. Both sides agree that the case is unprecedented in one respect. Never before has a court in this jurisdiction been asked to deal with an application of this type in circumstances of such a remove in time between the acts alleged and the commencement of proceedings.

THE ALLEGATIONS

4 The plaintiff was born in September 1931. She alleges that she was placed in Goldenbridge orphanage in 1934 and remained there until 1947. That orphanage was run bythe Sisters of Mercy. The defendant is sued in a representative capacity in respect of the Goldenbridge convent.

5 The plaintiff alleges that "throughout the period 1934 to 1947 but in particular from the year 1936/1937 onwards the Defendant failed grossly in its duty to care for and protect the Plaintiff in that it, it's servants and agents, inflected (sic) serious physical and mental injuries on the Plaintiff."

6 The plaintiff makes no allegations of any form of sexual abuse having been perpetrated upon her.

7 In the statement of claim which was delivered, particulars of the alleged physical and mental abuse allegedly suffered by the plaintiff whilst she was in the care of the Sisters of Mercy are set out asfollows

8 a " (a) the Plaintiff was subject to systematic beatings by Sr Bernadine and Sr Xaviera with implements being used, on occasion, to inflect (sic) further pain and injury. These implements included, inter alia, a large bunch of keys and a leather strap;

9 (b) the Plaintiff was kept in solitary confinement by Sr Xaviera from time to time and deprived of food and sustenance;

10 (c) the Plaintiff was stripped of her clothes and her hair was shorn by Sr Xaviera and forced to wear rages (sic) and was humiliatedpublicly;

11 (d) the Plaintiff was forced to remain kneeling by Sr Xaviera for prolonged periods in front of a statue in the bigcorridor;

12 (e) the Plaintiff was told constantly throughout her period of residence at the orphanage by Sr Xaviera that her family was bad and that she wasa bad person, not worthy of love and care, and that she had to bepunished;

13 (f) the Plaintiff was caused by Sr Xaviera to strike her head off a fixed column thereby splitting open an area over her left eye causing permanent scarring and disfiguration (sic). No medical treatment was given to the Plaintiff at that time;

14 (g) the Plaintiff was left so damaged and intimidated and so overborne with fear of the Defendant that she was mentally and emotionally incapable of coping with the damage or with any criminal or civil claim arising therefrom until counselling facilities were made available to her in 1997".

15 The statement goes on to allege that as a result inter alia of the abuse alleged the plaintiff suffered personal injury, loss and damage. It is said that those injuries were caused by the negligence, breach of duty and breach of statutory duty of the Sisters of Mercy. The particulars of negligence and breach of duty read as follows

" The Defendant, its servants or agents, were negligent and in breach of duty in that it (sic);"

(a) failed to provide proper or adequate or reasonable care to the Plaintiff;

(b) failed to provide competent or suitable staff to care for the Plaintiff;

(c) failed to have any or any adequate system of inspection to ensure that the Plaintiff was being properly and competently caredfor;

(d) permitted the Plaintiff to suffer and be damaged in the manner pleaded at paragraph 4 above;

(e) acted contrary to and in breach of Section 12 of the Children Act, 1908 as amended".

16 The particulars of personal injuries read as follows.

17 a "7(a) due to the regime of terror and abuse enforced and permitted by the Defendant, its (sic) servants or agents, and inflected (sic) on the Plaintiff during her 13 year stay, between the ages of 13 (sic) and 16, at the Defendants institution, the Plaintiff has suffered and continues to suffer serious adverse sequelae;

18 (b) the psychological trauma perpetrated on the Plaintiff had caused her to suffer a series of nervous breakdowns. Due to the Plaintiff being constantly told that her family was bad and constituted a negative force she had been unable to form any meaningful relationships with family members;

19 (c) the Plaintiff was unable to form any close friendships with members of her own sex or any relationships with members of the opposite sex as a result of the damage and abuse inflected (sic) uponher;

20 (d) the Plaintiff's marital relationship, and her relationships with her children, have been seriously adversely affected by the damage sustained by her during her stay".

21 Following the delivery of the statement of claim a searching Notice for Particulars dated the 9th November, 1998 was served upon theplaintiff

22 Amongst other things these particulars alleged:

23 (a) That the beatings allegedly carried out by Sr Bernardine and Sr Xaveria occurred in a significant number of cases in an area known as "the cubby-hole" which was described as a small dark room off the dressing-room. However, beatings occurred at any time and at anylocation.

24 (b) A lot of the beatings were carried out in the presence of other unnamed children.

25 (c) The beatings took place on a daily basis and the plaintiff was kept in solitary confinement in the cubby-hole on average twice a week over a period of thirteen years.

26 (d) The plaintiff was stripped of her clothes on regular basis by Sr Xaveria who was at times assisted by a Miss Gorry. The plaintiff's head was shorn by Sr Xaveria assisted at times by Miss Gorry on a regular basis without any prior warning.

27 (e) The plaintiff was humiliated on a daily basis. In particular on the occasion of the plaintiff's confirmation she spilled food on her confirmation dress. Sr Xaveria pulled the plaintiff by the ear down the corridor and stripped her clothes off. She then forced her to wear rags for a few days and encouraged other children to laugh at theplaintiff.

28 (f) The plaintiff was ordered to kneel at the statue of the Sacred Heart for hours at a time on a regular basis. A Fr Barry who regularly visited the orphanage saw the plaintiff there and spoke to her.

29 (g) On one occasion when Sr Xaveria was attempting to strike the plaintiff with a large bunch of keys, the plaintiff in an effort to avoid the blow,fell and struck her head on a column in the main hall. A permanent scar developed at the site of that injury.

30 The plaintiff in response to a question posed in the Notice for Particulars indicated that medical evidence will be called at the trial to the effect that she suppressed memories of what was described as the "appalling mental and physical torture inflicted on her during her time at Goldenbridge". This evidence it is said will show how counselling assisted the plaintiff recalling her past and dealing with it for the first time. The plaintiff also disclosed that she has suffered nervous breakdowns on three occasions. When asked how she alleged that she was unable to form a close relationship with a member of the opposite sex she indicated that that would be the subject of evidence at the trial. She disclosed her marriage as having taken place in 1951. She also disclosed that she has nine children all over the age of twenty one years.

31 A request for further particulars dated the 5th February, 1999 was responded to on the 1st March of that year. It disclosed that the plaintiff suffered her first nervous breakdown approximately thirty three years ago and was admitted as a patient at St James's Hospital for approximately three weeks under the care of Prof Noel (sic) Browne. Three or four years later she suffered a second nervous breakdown and was treated by Prof Browne as an out-patient. She subsequently suffered a third nervous breakdown but was unable to provide details at that time. The plaintiff's solicitor confirmed that Prof Ivor Browne attended the plaintiff in respect of these illnesses but that his records no longer exist.

32 A full defence was delivered on the 27th May, 1999. In addition to a denial of all of the allegations a number of special defences were raised including the...