Reilly v Devereux
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kearns |
| Judgment Date | 24 March 2009 |
| Neutral Citation | [2009] IESC 22 |
| Date | 24 March 2009 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 310 of 2007] |
[2009] IESC 22
THE SUPREME COURT
Denham J.
Kearns J.
Finnegan J.
BETWEEN
AND
DEFENCE FORCE REGS A7
HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502
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
O'KEEFE v HICKEY & ORS UNREP SUPREME 19.12.2008 2008 IESC 72
Tort - Negligence - Vicarious liability - Personal injuries - Allegation by soldier of sexual assault by superior officer - Principles to be applied - Nature of relationship between parties - Whether employee acting in normal course of employment - Whether army vicariously liable for such assault.
Tort - Negligence - Duty of care - Scope of duty - Notice of employee's wrongful acts - Test to be applied - Whether employer on actual or constructive notice of assaults - Whether army as employer liable due to being on notice of assaults.
Practice and procedure - Appeal - Nature of appeal to Supreme Court - Principles to be applied - Inferences drawn from primary findings of fact.
Facts: the plaintiff's claim for damages for personal injuries as against the army as employer arising out of a sexual assault perpetrated by his superior officer was dismissed by the High Court. It found that the army, as employer of the superior officer, was not vicariously liable for his wrongful actions nor was it liable for failing to take appropriate measures to prevent such abuse as it had not been, nor should it have been, on notice of such abuse. The plaintiff appealed to the Supreme Court.
Held by the Supreme Court (Kearns J; Denham and Finnegan JJ concurring) in dismissing the appeal, 1, that, in so far as findings of fact by the High Court were concerned, it was not the function of the Supreme Court to review the evidence and make its own decision on the facts. The Supreme Court was only concerned to ensure that primary findings of fact made by teh trial judge and inferences drawn by him from those findings were supported by the evidence. There was ample evidence to place in the balance against the evidence led by and on behalf of the plaintiff at the court of trial on the question of the army's notice of the superior officer's wrongful acts.
2. That the nature of the employment relationship between the plaintiff and the defendants was not such as would support a finding of vicarious liability given that the nature of the employment was not one which would have encouraged close personal contact where some inherent risks would exist and that there was no intimacy implicit in the relationship between the plaintiff and his superior officer nor was there any quasi-parental role or responsibility for personal nurturing.
Reporter: P.C.
JUDGMENT of Mr. Justice Kearnsdelivered on the 24th day of March, 2009
Judgment delivered by Kearns J. [nem diss]
This is an appeal brought on behalf of the plaintiff whose claim for damages for personal injuries was dismissed in the High Court (Johnson P.) on 30 th July, 2007. In the proceedings the plaintiff, who had been employed as a member of the Defence Forces from November, 1985 until November, 1997, complained that he had been sexually assaulted on divers occasions during the course of his employment by the first named defendant who was a Sergeant Major in the Army and the plaintiff'ssuperior officer. The plaintiff was born on 14 th April, 1966 and is a married man with a family. He was nineteen years of age when he joined the Army, a keen athlete and an accomplished boxer. The sexual abuse which occurred in the office of the first named defendant in McKee Barracks commenced in or around 1989 and continued until 1995. The abuse usually involved handling of the plaintiff's genitals and the rubbing by the first named defendant of his private parts against the plaintiff's body. On other occasions the plaintiff contended that the first named defendant grabbed the plaintiff's hands and forced them down into the first named defendant's private parts.
The plaintiff contends that as a result of these incidents he felt dirty, ashamed and guilty partly because he did not have the courage to go to his superiors and report the matter and partly because he felt they would take the denial of a senior non-commissioned officer over any claim from a mere gunner. Accordingly, when the plaintiff's contract expired in November, 1997, he left the army. Thereafter he started drinking heavily, his marriage broke up and he developed post-traumatic stress disorder.
The whole story of the plaintiff's experience emerged only in 1998 when the plaintiff met another soldier on the street who advised the plaintiff that he was aware of another similar incident involving the first named defendant and another soldier. Thereafter the gardai were notifiedand criminal proceedings were brought against the first named defendant. In so far as the plaintiff's claim against the first named defendant is concerned, some compensation arrangement has been arrived at between the parties and it is not an issue in this appeal.
The plaintiff commenced his proceedings by plenary summons on 15 th June, 2001. While the Statute of Limitations was raised by way of defence on behalf of the various defendants, Johnson P. determined that the psychological injury suffered by the plaintiff was such as to substantially impair his ability to make a reasoned decision to bring the action and thus determined that the plea under the Statute failed. No cross-appeal in respect of this finding has been raised by or on behalf of the defendants in this appeal.
Having determined that the said assaults did take place and that the plaintiff suffered post-traumatic stress disorder as a consequence of those assaults, the learned High Court judge had thus to determine:-
(a) Whether or not the second, third and fourth named defendants were vicariously liable for the assaults perpetrated by the first named defendant.
(b) Alternatively, were those defendants on notice that such assaults were taking place on the plaintiff having regard to the evidence of general chat, rumour and gossip about thefirst named defendant's activities, which it was suggested, were prevalent in the barrack room and the camp.
Having conducted a careful review of the relevant legal authorities, Johnson P. concluded as follows in relation to the issue of vicarious liability at p. 9 of his judgment:-
"All of the above cases were cases which related to young and vulnerable children, which is not the situation in this case. The plaintiff was a married soldier at the time of the first incident and I do not think that the same principles that were applied in the cases of wardens of boarding schools and/or orphanages can be applied to the Army. I have come to this conclusion after a good deal of consideration and some doubt. The doubt was created particularly by the fact of the control which the first named defendant had over the plaintiff, but overall I feel that the balance in this particular case lies against vicarious liability."
In relation to the claim of negligence, the learned trial judge noted that the evidence tendered in relation to the ongoing rumours, chat and gossip within army circles had been denied by all of the defendants' witnesses. Whilst noting the distinction in rank between the plaintiff's witnesses and those called on behalf of the defendants, the learned trial judge nonetheless concluded that all of the witnesses appeared to him to be attempting to tell the truth. He thus concluded that while there mayhave been banter, possibly name calling and general slagging, none of it was or should have been taken seriously given that any of the men, the N.C.O.'s or indeed any other officers who may have heard it may well have considered it to be nothing more than banter of a humorous nature. It is of importance to note in the context of the findings made by the learned trial judge that the plaintiff himself brought forward no complaint whatsoever in relation to the matters complained of. The learned trial judge indicated that he was satisfied that had the Officer Corps any real apprehension as to the behaviour of the first named defendant, they would have given notice of such apprehension through one of the routes laid down in the Army Code. He thus concluded that the level and nature of any remarks which were described to have occurred either in the mess room, the bar or the canteen were not such as would have alerted a reasonable person to take steps to either enquire into or prevent the activities of the first named defendant.
Because it assumed a particular significance in the submissions made on behalf of the plaintiff during the course of the appeal, I am including a further citation from the judgment of the learned trial judge in which he stated at p.10 of his judgment:-
"It is necessary to look at the incidents and at the evidence in light of the times as they then were. These events took place in the 1980's and early 1990's, at a time when the antennae of the ordinary reasonable person were far less acute to the potentials for sexual abuse or sexual assault than they are today. We must remember that, for the last ten years, the country has been subject to continual reports of sexual exploitation, sexual abuse and sexual assaults, all of which have tended to make the population a great deal more sensitive to matters which twenty years ago would not have drawn any attention whatsoever."
In the course of this appeal, counsel on behalf of the plaintiff has suggested that this characterisation of the period...
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