T.M v J.H & Ors, [2006] IEHC 261 (2006)

Docket Number:1998 9749P
Judge:Johnson J.
 
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THE HIGH COURT [1998 No. 9749P]BETWEEN/

T. M.

PLAINTIFF

J. H., J. M.

THE MINISTER FOR EDUCATION AND SCIENCE

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment delivered on the 18th day of July, 2006 by Mr. Justice Johnson

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

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

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.

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.

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.

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

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.

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, 2000 whereby under s. 40 s. 2 an amendment is introduced to s. 48 of the Statute of Limitations, 1957 as follows:

"48(a)(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

(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 by 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.(2) This section applies to actions referred to in sub-section (1) whether the cause of...

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