Sheridan v Kelly
| Jurisdiction | Ireland |
| Judge | MR JUSTICE FENNELLY |
| Judgment Date | 06 April 2006 |
| Neutral Citation | [2006] IESC 26 |
| Docket Number | [S.C. No. 347 of |
| Court | Supreme Court |
| Date | 06 April 2006 |
[2006] IESC 26
THE SUPREME COURT
Hardiman J.
Fennelly J.
Macken J.
BETWEEN
and
COURTS ACT 1988 S1
COURTS ACT 1988 S1(1)
COURTS ACT 1988 S1(3)
COURTS ACT 1988 S1(1)(A)
COURTS ACT 1988 S1(3)(B)
RSC O.18 r1
PRACTICE AND PROCEDURE Jury Personal injury - Right to trial with jury - Whether acts or omissions can give rise to claims under multiple legal headings - Whether trial by jury available in claim for damages for personal injuries - Whether damages suffered under different legal headings must be identical - Courts Act 1988 (No 14) s 1(1) - Plaintiff entitled to trial by jury (357/2003 - SC - 6/4/2006) [2006] IEHC 26
JUDGMENT of MR JUSTICE FENNELLY delivered on the 6th day of April, 2006.
This appeal concerns the right to a civil jury for a claim for damages for personal injury as a result of sexual assault. It involves consideration of section 1 of the Courts Act, 1988.
The plenary summons issued on 1st November 1999 claims:
1. Damages for assault, including sexual assault, together with punitive, exemplary, and/or aggravated damages in respect of same.
2. Damages for negligence, breach of duty and breach of fiduciary duty, including aggravated, exemplary or punitive damages.
3. Damages for breach of the Plaintiff's Constitutional rights...
In the statement of claim delivered on 10th April 2000, the plaintiff pleads as follows. The first named defendant is a Christian Brother and was Principal of Oatlands Junior School, Stillorgan, County Dublin, but with a present address at Arbour Hill Prison. The plaintiff was a student there from 1983 to 1986. The second named defendant is sued as representative of the Congregation of Christian Brothers. The central allegation in the statement of claim is:
"Wrongfully, in breach of duty, and breach of fiduciary duty, in breach of the Plaintiff's constitutional rights to bodily integrity, and in breach of his rights of religious and moral welfare, the first named Defendant, unlawfully subjected the Plaintiff to gross sexual assault, trespass to his person, violation of his bodily integrity and diminution of his self-esteem as an individual. The Plaintiff was subjected to repeated episodes of sexual assault."
There follows a list of particulars of assault and gross indecency upon the plaintiff. It is then pleaded that:
"By reason of the foregoing assaults, the Plaintiff sustained serious personal injuries, trauma, psychological damage, loss and damage."
There then follows a plea that the assaults were carried out while the first named defendant "was acting as a servant or agent of the second named Defendant and that the said conduct amounted to breaches of fiduciary duty, breaches of trust, negligence and breach of duty ......assault and/or battery and breach of the Plaintiff's constitutional rights, for which the second named Defendant is vicariously liable."
That statement of claim then lists particulars of the negligence "in and about their fiduciary duty as religious, moral and civic educators" alleged against the second named defendant his servants or agents. There is included a number of allegations that the second named defendant knew or ought to have known that the first named defendant was unsuitable to have unsupervised contact with children, of failure to scrutinise and monitor his contact with children, and, in particular an allegation that the second named defendant:
"Failed to have in place procedures or measures appropriate for the regulation and supervisions of members of his congregation charged with the duty of educating young persons ethically, religiously and secularly."
The defence of the first named defendant is not material to the present appeal. The second named defendant filed a full defence, stating, inter alia: that it is a stranger to the allegations of sexual assault made against the first named defendant and that he or his servants or agents are not vicariously liable for the acts alleged against the first named defendant.
The plaintiff served notice of trial for a judge and jury. The second named defendant served a notice of motion to have the case transferred to "the Personal Injuries list to be tried by a judge ......sitting alone." Kearns J, following an ex tempore judgment, made an order granting the relief sought, because the plaintiff had joined another cause of action with his claim for damages for "intentional trespass to the person." The learned judge ordered that the case be transferred to the non-jury list. The plaintiff has appealed, claiming that he has the right to trial with a jury.
The issue depends on the effect of the provisions of the Courts Act, 1988, which abolished the general right to trial by jury for actions for damages for personal injury. Only subsections (1) and (3) of section 1 of that Act are relevant to this appeal. They are, so far as relevant:
2 "(1) Notwithstanding section 94 of the Courts of Justice Act, 1924 or any other provision made by or under statute, or any rule of law, an action in the High Courtù
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),
a (b) [not relevant]
b (c) [not relevant]
or a question of fact or an issue arising in such an action, shall not be tried with a jury.
3 (2) [not relevant]
(3)...
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