R.R v P.D. and Others
| Jurisdiction | Ireland |
| Judge | Johnson P. |
| Judgment Date | 30 July 2007 |
| Neutral Citation | [2007] IEHC 252 |
| Court | High Court |
| Date | 30 July 2007 |
[2007] IEHC 252
HIGH COURT
AND
STATUTE OF LIMITATIONS S11(2)
STATUTE OF LIMITATIONS S48A(1)
STATUTE OF LIMITATIONS (AMDT) ACT 2000 S2
THE HEALTH BOARD v C (B) & THE LABOUR COURT 1994 ELR 27 1994/3/911
HEUSTON SALMOND & HEUSTON ON THE LAW OF TORTS 21ED 1996 443
MCINTYRE v LEWIS 1991 1 IR 121
TROTMAN v NORTH YORKSHIRE CO COUNCIL 1999 LGR 584
BAZLEY v CURRY 1999 174 DLR (4TH) 45
JACOBI v GRIFFITHS 1999 174 DLR (4TH) 71
LISTER v HESLEY HALL LTD 2002 1 AC 215 2001 2 WLR 1311 2001 2 AER 769
DELAHUNTY v SOUTH EASTERN HEALTH BOARD & ORS 2003 4 IR 361 2004/12/2759
O'K (L) v H (L) & ORS UNREP DE VALERA 20.1.2006 2006/46/9881 2006 IEHC 13
TORT
Limitation of actions
Sexual abuse - Post traumatic stress disorder - Whether post traumatic stress disorder can constitute psychological injury of such significance that substantially impairs will or ability to make a reasoned decision - Vicarious liability - Vicarious liability of employer - Test applicable - Factors to be considered in establishing whether or not act within course and scope of employment - Notice - Whether employer on notice of abuse - Onus of proof - McIntyre v Lewis [1991] 1 IR 121, Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] AC 215, Delahunty v South Eastern Health Board [2003] 4 IR 361, LO'K v LH [2006] IEHC 13 (Unrep, de Valera J, 20/1/2006), Bazley v Curry [1999] 174 DLR(4th) 45 and Jacobi v Griffiths [1999] 174 DLR(4th) 71 followed; Health Board v BC [1994] ELR 27 and Trotman v North Yorkshire County Council [1999] LGR 584 distinguished - Statute of Limitations 1957 (No 6), s 48A - Claim dismissed (2001/9296P - Johnson P - 30/7/2007) [2007] IEHC 252
R(R) v D(P)
Johnson P. delivered on the 30th day of July, 2007.
This judgment is circulated in redacted form to avoid identification of the parties.
This case arises out of allegations made by the plaintiff, whilst serving in the army that he was sexually assaulted by the first named defendant on approximately eight occasions between 1989 and 1994 or 1995. The nature of the assaults were that, whilst attending on the first named defendant in his capacity as sergeant major, the first named defendant fondled his private parts and subsequently exposed himself and exposed the plaintiff.
The plaintiff claims that as a result of these assaults he has suffered greatly and in particular has suffered post traumatic stress disorder, has had a breakdown in his family life and has had a complete change in the manner in which he conducts himself due to the trauma which he suffered.
The first named defendant did not appear and does not contest the allegations in this Court. I have been informed that a compromise has been achieved between the first named defendant and the plaintiff.
The plaintiff claims that the other defendants are (a) vicariously liable for the actions of the first named defendant and/or (b) that they had sufficient notice of the proclivities of the first named defendant to have taken steps to ensure that he did not have any contact with the plaintiff and thereby save the plaintiff from the assaults and the effects thereof.
Firstly the defendants plead that the claim is statute barred by reason of the Statute of Limitations. Secondly they plead that the vicarious liability does not apply in this particular case and thirdly that they had no notice of the proclivities of the first named defendant.
It should be stated that the plaintiff has admitted that at no time did he make any complaint to his superiors or indeed to anyone else regarding the conduct of the first defendant. He explains this by indicating that there was a culture in the army against making complaints and that he had made a previous complaint regarding the behaviour of a superior for an assault and that it had got nowhere. His view was quite clearly that no one would take the word of a gunner over the word of a sergeant major or indeed a battery sergeant. The first time he actually spoke about the incidents was after he left the army, when he met Battery Sergeant W. with whom he was acquainted, who informed him that two other gunners had made complaints against the first named defendant and that they had been disbelieved. As a result of this, the plaintiff indicated to Battery Sergeant W. that he would have believed them and went on to tell him of his experiences with the first named defendant, but swore him to secrecy and an undertaking not to tell anybody. Despite giving such an undertaking, the battery sergeant went to the superior officers with the statement made by the plaintiff and from there on the case developed.
I think it is proper to point out that the plaintiff himself took no steps to do anything to resolve his situation without the assistance or interference of Battery Sergeant W.
The first issue to be decided in this case is the question of the Statute of Limitations.
Before the case started an application was made to have this issue decided separately. This was not agreed and, in my view, correctly so because the evidence upon which the issue of the Statue of Limitations is decided is precisely the same evidence upon which the question of damages would have to be decided.
The assault allegations made by the plaintiff, as I stated above, took place between 1989 and 1995 at the outside. Proceedings in this matter were not issued until the 15 th June, 2001, and quite clearly vis a viz the second, third and fourth named defendants, the action would be barred according to the provisions of s. 11, subs. 2 of the Statute of Limitations, 1957.
The plaintiff claims that he is entitled to the benefit of the provisions of s. 48A(1) of the Statute of Limitations as inserted by s. 2 of the Statute of Limitations (Amendment) Act, 2000, the provision in question being as follows:-
"(1) A person shall, for the purpose of bringing an action-"
(a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached full age, or
a ( b) against a person (other than the person who committed that act), claiming damages for negligence or breach of duty where the damages claimed consist of or include damages in respect of personal injuries caused by such act,
be under a disability while he or she is suffering from any psychological injury that-
(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and
(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired."
Therefore the matters for me to decide in this judgment are (1) whether or not the plaintiff was suffering from any psychological injury caused by the assault on the first named defendant and, (2) if so, whether such injury was of such significance that the ability of the plaintiff to make a reasoned decision by bringing proceedings was substantially impaired.
It is quite clear in this instance that the plaintiff says he could not bring himself to face up to it and indeed it was only when he met Battery Sergeant W. that he mentioned the issue of the matter at all. He gives evidence as to how the incidents had affected his life, namely his drinking, drug taking, his marriage breakdown and other issues which affected him.
The plaintiff relied, in support of his case, on the evidence of R.Y., a clinical psychologist who treated the plaintiff at the time and indeed who continues to treat him, who gave evidence to the effect that she is quite satisfied that the plaintiff suffered from post traumatic stress disorder and indeed continues to suffer from the effects of it and that this would certainly be sufficient to have impaired his capacity to face up to the fact that (a) he had been abused and (b) to bring the case.
The defendants were represented by Professor Patricia Casey who said that, far from having post traumatic stress disorder, the plaintiff suffered and suffers from a personality defect which pre-existed the assaults and she indicated that she had a certain doubt as to whether the assaults took place at all. That was certainly the impression that she managed to create in my mind. She saw the plaintiff on two occasions and for less than two or three hours each time. As already stated, R.Y. not only treated him then but continues to treat him to this present day.
It is quite impossible to reconcile the evidence of R.Y. and Professor Casey. One of the matters which Professor Casey dealt with was the failure of the plaintiff to demonstrate any emotional distress at the situation in which he found himself and at the assaults which he suffered. In this Court the plaintiff had demonstrated a great deal of distress. In fact, on the first day of the case while he was giving evidence, I think I had to rise at least on three occasions to enable him to compose himself.
Under the circumstances, and having regard to the complete conflict of evidence, it...
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