McDonagh v O'Shea
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 02 October 2018 |
| Neutral Citation | [2018] IECA 298 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA |
| Date | 02 October 2018 |
[2018] IECA 298
THE COURT OF APPEAL
Baker J.
Peart J.
Hogan J.
Baker J.
Neutral Citation Number: [2018] IECA
Appeal No. 2016/394
AND
Fair trial – Lapse of time – Sexual abuse – Appellant seeking damages for assault and battery, for physical, sexual, and psychological abuse, and for negligence and breach of duty – Whether the respondent was unable to obtain a fair trial
Facts: The plaintiff/appellant, Mr McDonagh, was a day pupil in a primary school run by the religious order of the Brothers of Charity at Renmore, Galway, between the ages of 8 or 9 and 12 years. The plaintiff alleged physical and sexual assault by a member of staff known to him only as "Brother Jim". From the affidavit evidence it appeared reasonably likely that the relevant person was a Brother G, who died on 2 September 2011. The plaintiff also alleged that he was physically assaulted and mistreated by another identified member of the school staff who was the principal of the school. The first defendant/respondent, Mr O'Shea, was a representative defendant nominated for the purposes of representing the Congregation of the Brothers of Charity in the proceedings. The claim was for damages for assault and battery, for physical, sexual, and psychological abuse, and for negligence and breach of duty, inter alia, arising from a failure to have any effective supervision investigation of mistreatment within the school and failure to operate a school where the safety and bodily integrity of the plaintiff would be protected. On 27 July 2016, the High Court (Twomey J) determined that the action against the first defendant be dismissed on the grounds that the first defendant was unable to obtain a fair trial by reason of the lapse of time between the alleged events the subject matter of the proceedings and arising from the death and consequent unavailability of Brother G, a critical witness. The plaintiff appealed to the Court of Appeal against Twomey J's order.
Held by Baker J that the application to dismiss should be dealt with on the basis that the claim should be dismissed only insofar as it related to the alleged sexual abuse by Brother G, but that the balance of the case was to proceed. Baker J considered that, on the application of the O'Domhnaill v Merrick [1984] IR 151 test, the first defendant had established a sufficient degree of prejudice regarding that defendant's ability to fairly defend the claimed sexual abuse, but that a different consideration existed regarding the balance of the claim.
Baker J held that she would allow the appeal to the extent set out in this judgment.
Appeal allowed.
This is an appeal from an order of Twomey J. of 27 July 2016, where he determined that the action against the first defendant be dismissed on the grounds that the first defendant was unable to obtain a fair trial by reason of the lapse of time between the alleged events the subject matter of the proceedings and arising from the death and consequent unavailability of a critical witness alleged to have sexually abused the plaintiff.
The facts may be briefly stated. The plaintiff was a day pupil in a primary school run by the religious order of the Brothers of Charity at Renmore, Galway, between the ages of 8 or 9 and 12 years. The plaintiff alleges physical and sexual assault by a member of staff known to him only as 'Brother Jim'. The plaintiff also alleges that he was physically assaulted and mistreated by another identified member of the school staff who was the principal of the school.
The first defendant is a representative defendant nominated for the purposes of representing the Congregation of the Brothers of Charity in the proceedings.
The statement of claim pleads that the plaintiff was physically and sexually assaulted on two particular occasions by a member of staff identified as 'Brother Jim'. From the affidavit evidence it appears reasonably likely that the relevant person was a Brother G., who died on 2 September 2011. The trial judge determined that the Brother Jim to which the pleadings refer was Brother G., the person identified by the affidavit evidence of the first defendant, and that finding was one made following an analysis of the facts and is, in my view, a reasonable inference from those facts. There being no other alternative candidate to fit the description of the alleged sexual abuser, I consider that Twomey J. was correct to deal with the application on the basis that the alleged assailant is the person so identified and that he died in September 2011, approximately ten years after the proceedings commenced.
The plaintiff also pleads that having told the principal of the school of the sexual assault or assaults he was beaten and physically assaulted, and that he was then throughout the balance of his school years, repeatedly 'picked on' by this member of staff and singled out for severe physical abuse. The plaintiff pleads that 'this type of beating' was regular until he left school.
The claim is for damages for assault and battery, for physical, sexual, and psychological abuse, and for damages for negligence, breach of duty, inter alia, arising from a failure to have any effective supervision investigation of mistreatment within the school and failure to operate a school where the safety and bodily integrity of the plaintiff would be protected. The claim, then, is made on account of alleged direct assaults and on account of the vicarious liability of the defendants as owners, operators, or persons responsible for the management of the school.
The claim against the third defendant, the Western Health Board, was discontinued in December 2006. The State defendants are not parties to the motion or this appeal.
The plaintiff was born in 1965 and is married with five children. Between the ages of approximately 8 and 12 years he attended a school in Renmore, Co. Galway, operated by the Brothers of Charity and left at the end of his primary schooling.
The sexual assaults which form part of the subject matter of the proceedings are pleaded to have occurred, therefore, some time before the plaintiff left school in 1980, some 20 years before the plenary summons issued on 18 June 2001. It should be noted for that purpose that the proceedings were instituted shortly after statutory change brought about the insertion of s. 48A to the Statute of Limitations Act 1957 by s. 2 of the Statute of Limitations (Amendment) Act 2000 which extended the limitation period in respect of claims founded on tort in respect of acts of sexual abuse committed against a minor. The present appeal does not concern the question of whether the plaintiff's claim is statute barred but for present purposes I consider it correct that the appeal should be determined on the basis that the plaintiff did move to institute these proceedings within a reasonable time of the commencement of that amending legislation.
An appearance was entered by the various defendants without any obvious delay and a statement of claim delivered on 23 July 2001. No complaint can be made regarding the contents of the statement of claim which plead detailed acts of alleged assault, battery, and trespass, of alleged personal injuries, and of alleged negligence and breach of duty against the first defendant.
The first defendant served his defence almost four years later, on 7 April 2004, two days after serving a notice for particulars on 5 April 2004 which was promptly replied to by the plaintiff, on 20 July 2004.
Twomey J. delivered a considered written judgment on 25 July 2016, McDonagh v. O'Shea [2016] IEHC 428, in which he determined that the proceedings be struck out in reliance on the principles set out in the decision of the Supreme Court in O'Domhnaill v. Merrick [1984] IR 151 as considered by this Court in Cassidy v. The Provincialate [2015] IECA 74.
Twomey J. expressly determined to consider the application on the grounds that the plaintiff had been guilty of inordinate and inexcusable delay, and that the first defendant had suffered extreme prejudice as a result and could not now obtain a fair trial.
Twomey J. struck out the claim of the plaintiff on the grounds that he considered that to allow the trial to proceed would result in the 'grossest imaginable prejudice', quoting Hardiman J. in Whelan v. Lawn [2014] IESC 75, the prejudice arising from the fact that Brother G. is deceased. Twomey J. took the view that there was 'substantial risk of the first named defendant getting an unfair trial or an unjust result if the trial in relation to the alleged sexual abuse against Brother Jim G. and the alleged physical abuse against Mr Carey, were to proceed', at para. 31 of his judgment.
In coming to his conclusion, Twomey J. made the following determinations:
'• The case before this Court is primarily one of rape and serious sexual abuse against an alleged sex abuser.
• It is a case where the basic facts are disputed between the parties as evidenced by the fact that in their defence filed in 2004, the Brothers of Charity have a full denial of all the alleged acts of abuse.
• The alleged sexual abuser is, it seems, dead.
On these grounds alone, it seems to this Court that it would, to quote Hardiman J. be the "grossest imaginable prejudice" for this Court to allow a trial to proceed which would consider whether this man abused the plaintiff. In addition, however, it is relevant to note that:
• It is at least 36 years since the alleged sexual abuse by Brother Jim G and the alleged physical abuse by Mr. Carey took place,...
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