Naughton v Dummond

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 01 June 2016
• Neutral Citation: [2016] IEHC 290
• Court: High Court
• Docket Number: [2011 No. 1546 P]
• Date: 01 June 2016

[2016] IEHC 290

THE HIGH COURT

Noonan J.

[2011 No. 1546 P]

BETWEEN

GERARD NAUGHTON

PLAINTIFF

AND

SEAN JOHN DRUMMOND

AND

JOHN KEVIN MULLAN

AND

THE MINISTER FOR EDUCATION AND SKILLS, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

Tort – Damages & Restitution – Personal Injury – Sexual Abuse – Practice & Procedures – O.15, r. 13 of the Rules of the Superior Courts – Joinder of parties – O. 19, r. 28 of the Rules of the Superior Courts – Dismissal of claim – European Convention on Human Rights Act 2003 – S.48A of the Statute of Limitations 1957 as inserted by s. 2of the Statute of Limitation (Amendment) Act, 2000 – Statute of Limitations (Amendment) Act 1991

Facts: The third, fourth and fifth named defendants ('State defendants') sought an order for setting aside the order of the Master of the High Court for joining them as parties to the plaintiff's claim. The plaintiff had initially filed a claim for personal injury against the first and second named defendants for sexual abuse suffered by the plaintiff at the hands of the first named defendant. The plaintiff subsequently issued personal injury summons against the State defendants after being authorized by the Personal Injury Assessment Board. The plaintiff, after dismissal of his appeal by the Supreme Court affirming the finding of the High Court dismissing the claim against the State, served an amended personal injuries summons on the State defendants for negligence and vicarious liability in the light of the judgment of the European Court of Human Rights (ECtHR) in O'Keeffe v. Ireland (2014) 59 E.H.R.R. 15, wherein it was held that the State of Ireland had failed to fulfil its positive obligations to protect the sexually abused victims. The State defendants contended that the present complaint should be dismissed for want of cause of action against them and being time barred. The plaintiff asserted that his right to bring the present claim flew from s. 48A of the Statute of Limitations, 1957.

Mr. Justice Noonan set aside the order of the Master of the High Court for joining the State defendants as parties to the plaintiff's claim and thus, struck out the claim against the said defendants. The Court held that the breach of some provision of the European Convention on Human Rights Act, 2003, by the State of Ireland could not ipso facto give birth to justifiable rights under domestic law of the State. The Court being bound by the dicta of the Supreme Court in O'Keeffe v. Hickey [2009] 2 I.R. 302, held that the Act of 2003 could not be applied retrospectively. The Court noted that reliance by the plaintiff on s.48A of the Act of 1957 without any factual basis would be of no avail. The Court held that a party's date of knowledge as required under s. 2(1) of the Statute of Limitations (Amendment) Act, 1991, for enlargement of the limitation period could not be reckoned by reference to a judge-made law. The Court opined that the State could not be held vicariously liable for the criminal acts done by an individual in an institution which was neither managed, owned nor controlled by the State.

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 23rd July, 1959. As a young boy, he attended the Christian Brothers school at Creagh Lane, Limerick. The first defendant was a Christian Brother and a teacher at the school in the 1960's. In the years circa 1967 and 1968, the plaintiff alleges that he suffered sexual and other forms of abuse in the school perpetrated by the first defendant. The second defendant is the nominee of the Congregation of Christian Brothers.

19 th March, 2010 – the plaintiff applied to the Personal Injuries Assessment Board for an authorisation to bring proceedings against the first two defendants and the Minister for Education and Science

11 th October, 2010 – PIAB issued an authorisation in relation to those parties.

18 th October, 2010 – the plaintiff obtained a second authorisation from PIAB this time naming only the first two defendants.

17 th February, 2011 – the plaintiff issued a personal injuries summons against the first and second defendants.

11 th November, 2011 – PIAB issued a third authorisation including the Mininster for Education and Science, Ireland and the Attorney General.

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

24 th October, 2014 – the Master made an order joining the State defendants.

22 nd December, 2014 – PIAB issued a fourth authorisation against the Minister for Education and Skills instead of the Minister for Education and Science.

11 th February, 2015 – amended personal injuries summons served.

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 later abused 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.

In the original personal injuries summons issued on 17th February, 2011, the plaintiff pleaded at para. 1:

'The plaintiff is a person who has been suffering under a severe disability and who is only now capable of bringing these proceedings against the defendants.'

The plaintiff alleges that the State defendants are vicariously liable for the acts of the first defendant...