L. O'K v L.H and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice de Valera
• Judgment Date: 20 January 2006
• Neutral Citation: [2006] IEHC 13
• Court: High Court
• Docket Number: [1998/10555 P]
• Date: 20 January 2006

[2006] IEHC 13

THE HIGH COURT

[1998/10555 P]

O'K (L) v H (L) & ORS

BETWEEN

L. O'K.

PLAINTIFF

AND

L. H. THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND, AND THE ATTORNEY GENERAL

DEFENDANTS

STATUTE OF LIMITATIONS (AMDT) ACT 1991

STATUTE OF LIMITATIONS (AMDT) ACT 2000 S3

STATUTE OF LIMITATIONS ACT 1957 S48AJ

O'C v DPP 2000 3 IR 478

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

MARTIN DELAHUNTY v SOUTH EASTERN HEALTH BOARD & ORS 2003 4 IR 361

LISTER v HESLEY HALL LTD 2002 1 AC 215 2001 2 WLR 1311 2001 2 FLR 307

W (H M) (ORSE F) v IRELAND & AG 1997 2 IR 141

NEGLIGENCE

Vicarious liability

PRACTICE AND PROCEDURE

Limitation of actions

Liability of State for diocesan-owned and managed school - Sexual assault by principal on pupil at school - Whether vicarious liability arose where assailant's salary paid by Department of Education and teachers therein subject to departmental inspections -Whether State vicariously liable - Delahunty v South Eastern Health Board [2003] 4 IR361 applied; Lister v Hesley Hall Limited [2001] UKHL 22, [2002] 1 AC 215 distinguished - Claim dismissed(1998/10555P - de Valera J - 20/1/2006)[2006] IEHC 13O'K(L) v H(L)

Facts: the plaintiff claimed damages against the defendants for personal injuries as a result of sexual abuse perpetrated by the first defendant who was the headmaster of a school which was managed by a religious order but where the teacher’s salaries were paid by the remaining defendants. The plaintiff had obtained judgment against the first defendant by default. The remaining defendants applied to have the plaintiff’s claim against them dismissed on the basis that they had no case to answer in respect of the allegations of negligence arising out of the State’s purported failure to put in place appropriate procedures to detect and prevent sexual abuse.

Held by De Valera J in dismissing the plaintiff’s claim as against the second, third and fourth defendants that the functions of the remaining defendants were not management functions as the ownership and management of the school was in the hands of the religious order who ran the school. The fact that the school was used by the State as a means of fulfilling its constitutional obligations towards some of the children therein did not automatically make the school an agent of the State.

Reporter: P.C.

Mr. Justice de Valera

1 In this action the plaintiff claims damages against the defendants for personal injuries suffered by her, subsequent to sexual assaults inflicted upon her by the first defendant in 1973, when the first defendant was the principal and the plaintiff a pupil at D. School, K., Co. C..

2 Prior to the hearing of this action, judgment (in default) was obtained by the plaintiff against the first named defendant and the plaintiff did not seek to appear, nor was he represented at the subsequent hearing between the plaintiff and the second, third and fourth defendants.

3 At the conclusion of the plaintiff's case an application was made for a direction nonsuiting the plaintiff and this was granted insofar as it was held that the Minister had no case to answer in respect of the allegations of negligence arising out of the State's purported failure to put in place appropriate measures and procedures to detect and prevent sexual abuse by the first defendant.

4 The plaintiff's plenary summons was issued on the 29th September, 1998. In her evidence, which was not contested on this point, the plaintiff stated that the acts of sexual assault, of which she complained occurred between January, 1973, and, at the latest, September, 1973, after which time she was withdrawn from attendance at the school until such time as the first named defendant was removed from his position.

5 The time difference, therefore, between the last act complained of and the initiation of proceedings is, approximately, twenty-five years.

6 In their defence the second, third and fourth defendants (hereinafter "the defendants") at paragraph 9 assert that the plaintiff's claim is barred by virtue of the provisions of the Statute of Limitations Act,1957 and/or the Statute of Limitations Act, 1991.

7 I am satisfied, on the plaintiff's own evidence, and on the evidence of her general practitioner, Dr. O'Neill, and her psychiatrist, Dr. O'Leary, that it was not until the events of June, 1998, at the trial in the Circuit Criminal Court of the first defendant that the plaintiff realised that the psychiatric and psychological problems of which she complained could be attributed to the actions of the first defendant in the winter, spring and summer of 1973. The plaintiff's state of knowledge, pursuant to the provisions of the Statute of Limitations (Amendment) Act,1991 is, therefore, June, 1998. In these circumstances the plaintiff's claim is not statute barred.

8 At paragraph 10 of the defence the defendants claim that because of unreasonable and undue delay it was unreasonable to expect the defendants to defend the plaintiff's proceedings.

9 In their submissions the defendants point out that the Statute of Limitations (Amendment) Act,2000 provides, at s. 3:

"Nothing in section 48A of the Statute of Limitations, 1957 (inserted by section 2 of this Act), shall be construed as affecting any power of a...