Kennedy -v- Murray & ors, [2016] IEHC 291 (2016)

Docket Number:2008 5716P
Party Name:Kennedy, Murray & ors
 
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THE HIGH COURT

[2008 No. 5716 P]

BETWEEN

GEORGE KENNEDYPLAINTIFFAND

MICHAEL MURRAY AND BROTHER DRUMMOND AND BY ORDER IRELAND AND THE ATTORNEY GENERAL AND THE MINISTER FOR EDUCATION AND SKILLSDEFENDANTS

JUDGMENT of Mr. Justice Noonan delivered on the 1st day of June, 2016.

Introduction

  1. This application is brought by the third, fourth and fifth defendants (“the State defendants”) for an order setting aside the joinder of those parties as defendants on the grounds that the plaintiff’s claim is statute barred as against the State defendants and/or discloses no reasonable cause of action against them.

    Background and Chronology.

  2. The plaintiff was born on the 26th of September, 1958. As a young boy, he attended the Christian Brothers school at Creagh Lane, Limerick. The first defendant is the nominated representative of the Christian Brothers and the second defendant was a teacher at the school in the 1960s. For a period of approximately three years commencing in 1965, the plaintiff alleges that he suffered sexual and other forms of abuse in the school perpetrated by the second defendant.

    12th of April, 2006 – the plaintiff made a statement to An Garda Síochána in relation to his alleged abuse.

    8th of October, 2007 – the plaintiff attended Dr. M.J. Ledwith, a consultant psychiatrist.

    16th of January, 2008 – the Personal Injuries Assessment Board authorised the plaintiff to bring proceedings against the first and second defendants.

    15th of July, 2008 – a personal injuries summons was issued against the first and second defendants.

    4th of October, 2011 – the plaintiff’s case was struck out of the list for non attendance although it is unclear whether the entire proceedings were struck out or simply the notice of trial as no copy of the order is available.

    28th of January, 2014 – the European Court of Human Rights gave judgment in Louise O’Keeffe v. Ireland (2014) 59 E.H.R.R. 15.

    9th of June, 2014 – the Personal Injuries Assessment Board authorised the plaintiff to institute proceedings against the State defendants.

    7th of October, 2014 – the Master of the High Court made an order joining the State defendants to the proceedings.

    4th of November, 2014 – an amended personal injuries summons was served on the State defendants.

    11th of June, 2015 – the within motion was issued.

    O’Keeffe v. Hickey [2009] 2 I.R. 302.

  3. The plaintiff brought a claim for damages for personal injuries arising out of her sexual abuse by the first defendant when she was a child attending a national school of which the first defendant was the principal. The acts complained of occurred in 1973. Although the school was recognised by the State as a national school, it was owned and managed by the local Catholic Diocese without any involvement by the State. The manager of the school was a Father O’Ceallaigh and in 1971, prior to the abuse suffered by the plaintiff, a parent of another child in the same school complained to Father O’Ceallaigh that this child had also been sexually abused by the first defendant. The plaintiff’s proceedings were against the Diocese and also the State. The High Court dismissed the claim against the State holding that the State was not vicariously liable for the sexual abuse of the first defendant nor had negligence against the State been established. The plaintiff appealed against this finding to the Supreme Court which dismissed the appeal. In the course of his judgment, Hardiman J. said:

    “[75.] Accordingly it seems to me that the State defendants cannot be liable for the first defendant's tortuous and criminal acts on the ordinary and established principles of vicarious liability. The perpetrator was not the Minister's employee; the latter did not employ him or direct him. He was employed by the patron and directed and controlled by the manager.”

    O’Keeffe v. Ireland (2014) 59 E.H.R.R. 15.

  4. Following the failure of the Supreme Court appeal in O’Keeffe v. Hickey, the plaintiff brought proceedings against Ireland before the European Court of Human Rights alleging a breach by the State of various Articles of the European Convention on Human Rights arising from the circumstances which were the subject matter of the earlier domestic litigation. The ECtHR in summarising its conclusions said:

    “[168.] To conclude, this is not a case which directly concerns the responsibility of LH, of a clerical Manager or Patron, of a parent or, indeed, any other individual for the sexual abuse of the applicant in 1973. Rather, the application concerns the responsibility of a State. More precisely, it examines whether the respondent State ought to have been aware of the risk of sexual abuse of minors such as the applicant in National Schools at the relevant time and whether it adequately protected children, through its legal system, from such treatment.

    The court has found that it was an inherent positive obligation of government in the 1970s to protect children from ill-treatment. It was, moreover, an obligation of acute importance in a primary education context. That obligation was not fulfilled when the Irish State, which must be considered to have been aware of the sexual abuse of children by adults through, inter alia, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of the young Irish children to non-State (National) Schools, without putting in place any mechanism of effective State control against the risks of such abuse occurring. On the contrary, potential complainants were directed away from the State authorities and towards the non-State denominational managers (para. 163 above). The consequences in the present case were the failure by the non-State Manager to act on prior complaints of sexual abuse by LH, the applicant’s later abuse by LH and, more broadly, the prolonged and serious sexual misconduct by LH against numerous other students in the same National School.

    [169.] In such circumstances, the State must be considered to have failed to fulfil its positive obligation to protect the present applicant from the sexual abuse to which she was subjected in 1973 whilst a pupil in Dunderrow National School. There has therefore been a violation of her rights under Article 3 of the Convention. Consequently, the Court dismisses the Government’s preliminary objection to the effect that this complaint was manifestly ill-founded.”

  5. The court went on to hold that no effective domestic remedy was available to Ms. O’Keeffe in relation to her complaints concerning a breach of Article 3 of the Convention and this amounted to a violation of Article 13.

    The Pleaded Claim against the State Defendants.

  6. In the amended personal injuries summons served on the State defendants on 4th of November, 2014, the following pleas are made:

    “[6A.] The State and/or the predecessor and/or predecessors in title of the fifth named defendant were at all material times obliged to ensure the protection of children from ill-treatment, especially in a primary education context, through the adoption, as necessary, of special measures and safeguards pursuant to Article 3 of the European Convention on Human Rights and Fundamental Freedoms. The State and/or the predecessor and/or predecessors in title of the fifth named defendant were in breach of the said obligation and that breach caused and/or contributed to the matters herein before set out which at all material times constituted torture and/or inhuman and/or degrading treatment and/or punishment of the plaintiff.

    [6B.] Further or in the alternative the State and/or the predecessor or predecessors in title of the fifth defendant were at all material times responsible for the provision of primary education to children within the State, including the plaintiff, and were responsible for the supervision and/or control of schools and teachers working within the said school and/or vicariously liable for the wrongful acts and/or omissions of the first and/or second named defendants.”

    The Evidence Before the Court on this Application.

  7. The affidavit grounding this motion was sworn by the solicitor for the State defendants, Joseph O’Malley. He avers that the State defendants had no involvement in the day to day management of the school attended by the plaintiff nor was it under their auspices, direction or control. He avers that the school was under the patronage of the Bishop of Limerick and was managed by the Christian Brothers and the State defendants had no contractual relationship with any members of staff nor had they any responsibility for recruitment, supervision or management of staff. None of this is in dispute. In his original summons, the plaintiff pleads that the school was operated by the Christian Brothers and they employed the second defendant as a teacher at the school.

  8. A replying affidavit on behalf of the plaintiff was sworn by his solicitor, Catriona Dwane, rather than by the plaintiff himself. On the issue of the Statute of Limitations, she avers (at para. 5):

    “I say that the plaintiff will make the case, inter alia, that he was under a disability due to psychological injury caused in whole or in part by negligence and/or breach of duty on the part of the State defendants and/or by reason of sexual abuse committed against him by the second named defendant who was at all material times a teacher in a school providing primary education for children in a school on behalf of the State and that disability continued at least until he saw Dr. Ledwith.”

  9. Ms. Dwane goes on to confirm what was averred by Emer Griffin, another solicitor in the same firm whose affidavit grounded the application to join the State defendants, namely that the application was brought following the judgment of the ECtHR in O’Keeffe v. Ireland and arising from it. Ms. Dwane goes on to say that having regard to the fact that both the High and Supreme Courts had accepted the position that the State had no liability in...

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