T.M v J.H and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Johnson
• Judgment Date: 18 July 2006
• Neutral Citation: [2006] IEHC 261
• Docket Number: [No. 9749P/1998]
• Court: High Court
• Date: 18 July 2006

M (T) v H (J) & ORS

This judgment is circulated in a redacted form to avoid identification of the parties

BETWEEN/

T. M.

PLAINTIFF

J. H., J. M. THE MINISTER FOR EDUCATION AND SCIENCE IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2006] IEHC 261

[No. 9749P/1998]

THE HIGH COURT

Abstract:

Tort - Personal injuries - Sexual abuse - Whether proceedings statute barred - Vicarious liability - Statute of Limitations 1957, s. 48(A) - Statute of Limitations (Amendment) Act 2000, s. 2

Between the years 1969 to 1971 the plaintiff was sexually abused by the first named defendant. The plaintiff claimed damages against the first named defendant and claimed that the second, third, fourth and fifth named defendants were vicariously liable for the conduct of the first defendant. The defendants contended that the proceedings were statute barred.

Held by Johnson J. in assessing damages against the first named defendant in the sum of Eur300,000 that the plaintiff fell within the provisions of s. 48(A) of the Statute of Limitations 1957. The second, third, fourth and fifth named defendants were not vicariously liable for the actions of the first named defendant.

Reporter: R.W

STATUTE OF LIMITATIONS (AMDT) ACT 2000 S40(2)

STATUTE OF LIMITATIONS 1957 S48

STATUTE OF LIMITATIONS (AMDT) ACT 2000 S48(1)

STATUTE OF LIMITATIONS (AMDT) ACT 2000 S48(2)

PRIMOR PLC (PMPA) v FREANEY & STOKES KENNEDY CROWLEY 1996 2 IR 459

DELAHUNTY v SOUTH EASTERN HEALTH BOARD & ORS 2003 4 IR 361

O'K (L) v H (L) & ORS UNREP HIGH COURT DE VALERA J 20.1.2006 2006/46/9881 2006 IEHC 13

Mr. Justice Johnson

1 The plaintiff was born on 2nd February, 1960 and resides in County Galway.

2 The first defendant is a retired or ex Franciscan Brother who was principal teacher in a national school in the County of Galway.

3 The second named defendant is joined in the proceedings in a representative capacity on the basis that he is a trustee nominee of the Franciscan Order of Ireland and is sued in that capacity.

4 The third named defendant is sued in the capacity and in respect of such supervision as he has over the running of the national school in which the first named defendant taught. The fourth and fifth named defendants are sued together with the third named defendant in that capacity.

5 Between the years 1969 to 1971 the plaintiff was sexually abused and sexually defiled by the first named defendant. The sexual abuse consisted of the first named defendant fondling the plaintiff's penis and testicles and the sexual abuse perpetrated by the first named defendant persisted and continued over a considerable period of time. The plaintiff claims damages as of the first named defendant in respect of this abuse and in respect of the consequences thereof which continues to affect him. The second named defendant it is claimed is liable in negligence and vicariously liable for the conduct of the first named defendant and a similar claim is made against the third fourth and fifth named defendants.

6 The plaintiff on the 25th day of November, 2002 obtained a judgment in default of appearance against the first named defendant.

7 The plaintiff was abused between the years of 1969 and 1972 in the school in County Galway. He took no steps to bring the matter to court or to make any claim against the defendants until after the first named defendant was prosecuted in the Galway Circuit Court for abusing children in or around 26th April, 1998 the plaintiff says and asserts that his knowledge within the meaning of the 1991 Act did not occur until after this date and the plaintiff, even at that stage, felt unable to face the court and his story was relayed to the court by the investigating garda and indeed he was only able to tell him wife of the events which took place shortly before the commencement of this hearing. Proceedings were first instituted against the first and second named defendants on 4th September, 1998 and against the other defendants on 15th May, 2001.

8 Both the second named defendant and the third, fourth and fifth named defendants have filed defences denying liability and pleading (a) the Statute of Limitations and (b) that there was inordinate and unreasonable delay in the prosecution of these proceedings. In dealing with the plea of the statute being quite clear that a long period of time has elapsed between (a) the occurrence of the incidents and (b) the plaintiff having achieved his majority the only way in which the plaintiff can avoid failing by reason of the Statute of Limitations is under the provisions of the Statute of Limitations Amendment Act,2000whereby under s. 40 s. 2 an amendment is introduced to s. 48 of the Statute of Limitations, 1957 as follows:

9 2 "48(a)(1) A person shall, for the purpose of bringing an action —

10 (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

11 (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 —

12 (i) is caused, in whole or in part, by that act, or by any other act, of the person who committed the first mentioned act, and

13 (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.

14 (2) This section applies to actions referred to in sub-section (1) whether the cause of action concerned accrued before or after the passing of the Statute of Limitations Amendment Act,2000, including actions pending at such passing.

15 (3) An action referred to in sub-section (1) that but for this sub-section could not by virtue of this Act, may be brought not later than one year after the passing of the Statute of Limitations (Amendment) Act,2000provided that after the expiration of the period within which such action could by virtue of this Act have been brought but prior to 30th March, 2000

16 (a) a person bringing the action obtained professional legal advice that caused him or her to believe that the action could not, by virtue of this Act, be brought, or

17 (b) a complaint to the Garda Síochána was made by or on behalf of such person in respect of the Act to which the action relates."

18 Under those circumstances it is quite clear that the plaintiff in this case failed to bring action against either or any of the defendants within the time specified by the Statute of Limitations, 1957 and, indeed, the first proceedings were issued in 1998, that is after Circuit Court criminal proceedings against the first named defendant. However he had dealt with the Gardaí prior to the prosecution of the first named defendant in the Circuit Court.

19 And the proceedings were reissued against the defendants and all of them in March of 2000, liberty having been given to join the third, fourth and fifth named defendants and liberty being given to amend the pleadings.

20 Having heard the evidence of the plaintiff wherein he described the trauma through which he went and in enduring the assaults which he described. The further trauma of having his account rejected by his father and parents.

21 The further aspect of the matter being the vilification of his family and himself and the suggestion that they were liars, the glorification of the first named defendant by the local community all served to traumatise him completely so that I am satisfied that he was unable to communicate to anyone the injuries which he had suffered and the trauma through which he went. This view was copper fastened, as far as I am concerned, by the evidence of Dr. Anne Leader, psychiatrist and Mr. Eamonn Murphy, psychologist both make it quite clear that he was psychologically disabled certainly until well after the statutory period had passed. He did complain to the Gardaí the time of the trial.

22 Under those circumstances I find that the plaintiff falls within the provisions of s. 48( 1) and (2) of the Statute of Limitations2000Amendment Act and the pleas on behalf of the defendants in respect of these matters fails.

Delay

23 Each of the defendants have also raised the question of inordinate and inexcusable delay in bringing the proceedings.

...