Sweeney v Board of Management of Ballinteer Community School

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 24 March 2011
• Neutral Citation: [2011] IEHC 131
• Docket Number: [No. 1936 P/2008]
• Court: High Court
• Date: 24 March 2011

[2011] IEHC 131

THE HIGH COURT

[No. 1936 P/2008]

Sweeney v Board of Management of Ballinteer Community School

BETWEEN

BRIDGET SWEENEY

PLAINTIFF

AND

THE BOARD OF MANAGEMENT OF BALLINTEER COMMUNITY SCHOOL

DEFENDANTS

EMPLOYMENT EQUALITY ACT 1998 S15

BARRY & LANE UNDERSTANDING MENTAL HEALTH 2006 CHAP 2 P 27

MULLALLY v BUS EIREANN 1992 I ILRM 722

KELLY v HENNESSY 1996 ILRM 321

SAFETY HEALTH AND WELFARE AT WORK ACT 2005

QUIGLEY v COMPLEX TOOLING & MOULDING LTD 2009 1 IR 349

MATTHEWS v KUWAIT BECHTEL CORP 1959 2 QB 57

CONWAY v INTO 1991 2 IR 305

EDUCATIONAL COMPANY OF IRELAND & ANOR v FITZPATRICK & ORS 1961 IR 345

KENNEDY & ORS v IRELAND & AG 1987 IR 587

ALLEN (CLAIMENT) v DUNNES STORES LTD JAN 1995 1996 ELR 203

HEALTH BOARD v BC & LABOUR COURT JAN 1994 ELR 27

MAHER v JABIL GLOBAL SERVICES LTD 2008 1 IR 25 2005 ELR 233 2005/37/7677 2005 IEHC 130

MCGRATH v TRINTECH TECHNOLOGIES LTD 2005 4 IR 382

O'KEEFE v HICKEY & ORS 2009 1 ILRM 490

EDUCATION

School

Bullying and harassment - Vicarious liability of defendant - Categories of duty of care owed by defendant - Foreseeability - Causation - Damages - Principles to be applied in awarding aggravated damages - Whether bullying or harassment - Whether foreseeable mental injury would be caused - Whether negligence, breach of statutory duty and breach of contract - Whether exemplary damages or aggravated damages appropriate - Mullally v Bus Éireann [1992] ILRM 722; Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57 approved - Kelly v Hennessy [1995] 3 IR 253; Quigley v Complex Tooling and Moulding Ltd [2005] IEHC 173, [2008] IESC 44, [2009] 1 IR 349; Conway v Irish National Teachers Organisation [1991] 2 IR 305; Educational Company of Ireland Ltd and Another v Fitzpatrick and Others (No 2) [1961] IR 345 applied; Kennedy v Ireland [1987] IR 587; Allen (Claimant) v Dunnes Stores Ltd [1996] ELR 203; The Health Board v BC & The Labour Court [1994] ELR 27; Maher v Jabil Global Services Ltd [2005] IEHC 130, [2008] 1 IR 25; McGrath v Trintech Technologies Ltd [2004] IEHC 342, [2005] 4 IR 382; O'Keeffe v Hickey & Others [2008] IESC 72, [2009] 2 IR 302 considered - Employment Equality Act 1998 (No 21), s 15 - Safety, Health and Welfare at Work Act 2005 (No 10) - Damages including aggravated damages awarded (2008/1936P - Herbert J - 24/3/2011) [2011] IEHC 131

Sweeney v Board of Management of Ballinteer Community School

Facts: The plaintiff was a senior member of a teaching staff and several decisions had been taken by Dr. C as principal teacher affecting her. The decisions were found not to have established bullying or harassment in an investigation by an Investigation Officer. The issue arose as to whether the plaintiff had established on the balance of probabilities that she had been bullied and intimidated as well as subjected to surveillance. She alleged that she had suffered a psychiatric illness as a result and that it was foreseeable that this injury could have been avoided by the exercise of reasonable care by Dr. C and the Board of Management.

Held by Herbert J. that the failure of the Board of Management to act as a reasonably careful and prudent employer in permitting the bullying to continue to the point that it resulted in her suffering from depression. The Board of Management was in breach also of the direct duty of care which it owed to the plaintiff as her employer. The plaintiff suffered a serious depressive illness for a period. She was subjected to deliberate and continuous bullying as a direct consequence of which she suffered mental injury. The behaviour towards the plaintiff of Dr. C was oppressive and arrogant and it was appropriate for the Court to mark its abhorrence by awarding aggravated damages. The Court would award damages in the sum of Eur 60,000 of which Eur 5,000 represented the increased amount of compensatory damages. Additional damages in the sum of Eur 15,000 would be awarded for personal injuries that might be suffered in the future and Eur 13,625 agreed special damages.

Reporter: E.F.

Mr. Justice Herbert

1 Between September 2005 and September 2006, a series of decisions affecting the plaintiff, approximately six in number were taken by Dr. C. as principal teacher of a large community college (hereinafter referred to as B.C.C.), in which the plaintiff was a senior member of the teaching staff. It is not for this Court in these proceedings to decide whether these decisions were correct or incorrect, justified or unjustified. A report of an Investigating Officer appointed pursuant to the provisions of the Code of Practice of March 2003, for "dealing with complaints of bullying and harassment of staff in community and comprehensive schools", subscribed to and relied upon the plaintiff as a member of the Teachers Union of Ireland and, by the Board of Management of B.C.C. found that the plaintiff had not established that these decisions amounted to bullying or harassment of her by Dr. C.. This finding was sustained by an Appeal Board duly constituted under and in accordance with the terms of the Code of Procedure, on foot of the plaintiff's appeal dated the 9^th March, 2010, from the decision of the Investigating Officer. I have already ruled during the course of this action that to the extent that these decisions of Dr. C. were the subject of inquiry by the Investigating Officer and subsequently by the Appeal Board, this Court would not permit the plaintiff to challenge these findings in the instant case and, would accept the finding that these decisions taken by Dr. C. did not amount to bullying or harassment of the plaintiff.

2 However, these decisions and the facts surrounding them have a residual importance to the present case. The plaintiff did not accept these decisions of Dr. C. and, in each case, to re-echo her own words under cross examination, "went beyond and outside him". In so doing she knew that she was taking, what she herself described, as a "drastic step". She accepted in evidence that on the 2^nd September, 2005, she told Dr. C. that unless she received what she believed was promised funding from B.C.C. for the second year of her four year degree course in counselling and psychotherapy, "she would do something drastic". In cross examination the plaintiff denied that she had threatened to take sick leave for a year and insisted that by saying that she "would do something drastic" she meant that she would, "go beyond and outside him".

3 It is not for this Court to decide in the present case whether or not the plaintiff was entitled to "go beyond and outside" Dr. C. in relation to these decisions or, even if such recourse existed whether she employed correct procedures in availing of it.

4 However, what is important in my judgment to the proper understanding and determination of this action is that these decisions of Dr. C. and the plaintiff's reaction to them resulted, I find, in escalating mutual distrust between them as disagreement followed disagreement. Eventually, I find that the plaintiff came to believe that every action or omission on the part of Dr. C. whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.

5 These most regrettable circumstances caused her on the 4^th October, 2006, to make a formal complaint of bullying and harassment through a firm of solicitors to the Rev. Chairman of the Board of Management of B.C.C.. I accept the evidence of the Rev. Chairman that this was the first he had heard of the allegation. He was very shocked and he took legal advice before acknowledging this letter by a letter dated the 16^th October, 2006. He accepted that he had been aware since October 2005 that the plaintiff and Dr. C. had not been speaking to each other but he told the court that this was not at all unusual amongst teachers. I find that prior to this, in May and June 2006, three teachers on the staff of B.C.C. who were the then serving committee of the Teachers Union of Ireland in B.C.C. had attended a number of meetings with Dr. C. in which they had put to him the plaintiff's concerns about his behaviour towards her. I am satisfied that at least one of these meetings Dr. C. behaved very aggressively towards a female teacher almost resulting in physical intervention by the two male teachers present. It is not necessary for the purpose of deciding the present action to determine whether Dr. C. is correct in his recollection that no express allegation of bullying or harassment by him of the plaintiff was raised at any of these meetings and accordingly that the contents of the letter of the 4^th October, 2006, came as a very great surprise to him. By a letter dated the 7^th November, 2006, Dr. C. denied these accusations and furnished particulars to the Board of Management of B.C.C. of what he alleged was bullying of him by the plaintiff.

6 Following a considerable exchange of views in correspondence, which on occasion became unnecessarily acrimonious, on the 13^th November, 2006, a practising junior counsel with extensive experience and with an area of specialisation in the Law relating to Education in Ireland was appointed under the Code of Practice as "Investigating Officer" to inquire into these very serious complaints by the plaintiff of bullying and harassment on the part of the Dr. C.. In furnishing very belated details of her claim to the Investigating Officer and to Dr. C. in April 2007, the plaintiff claimed that she had been bullied and harassed by Dr. C. since 1992. However, at the hearing of the instant case, she accepted that this alleged behaviour on the part of Dr. C. only commenced in October 2005, following her appeal against the filling of four "A" posts of responsibility in B.C.C.. The Investigating Officer furnished her report on the 26^th October, 2007 and a...