Wallace v Creevey

JudgeMr. Justice Noonan
Judgment Date01 June 2016
Neutral Citation[2016] IEHC 294
CourtHigh Court
Docket Number[2012/11522P]
Date01 June 2016

[2016] IEHC 294


Noonan J.







Tort – Damages & Restitution – Personal Injury – Sexual Abuse – Practice & Procedures – O.15, r. 13 of the Rules of the Superior Courts – Joinder of parties – O. 19, r. 28 of the Rules of the Superior Courts – Dismissal of claim – European Convention on Human Rights Act 2003 – S.48A of the Statute of Limitations 1957 as inserted by s. 2of the Statute of Limitation (Amendment) Act, 2000 – Statute of Limitations (Amendment) Act 1991

Facts: The sixth, seventh and eight named defendants (‘State defendants’) sought an order for setting aside the order of the Master of the High Court for joining them as parties to the present claim for personal injury and negligence. The plaintiff had initially instituted a personal injury claim against the first to fifth named defendants after being authorized by the Personal Injuries Assessment Board (PIAB) following the conviction of the first named defendant/abuser pursuant to a complaint of sexual abuse filed by the plaintiff against that abuser. The plaintiff, after dismissal of his appeal by the Supreme Court, against the order of the High Court dismissing the said claim against the State, served an amended personal injuries summons on the State defendants upon authorization from PIAB for negligence and vicarious liability in the light of the judgment of the European Court of Human Rights (ECtHR) in O'Keeffe v. Ireland (2014) 59 E.H.R.R. 15, wherein it was held that the State of Ireland had failed to fulfil its positive obligations to protect the sexually abused victims. The State defendants contended that the present complaint should be dismissed for want of cause of action against them and being time barred. The plaintiff contended that the State defendants were guilty of negligence and thus vicariously liable for the acts of the first named defendant.

Mr. Justice Noonan set aside the order of the Master of the High Court for joining the State defendants as parties to the plaintiff's claim and thus, struck out the claim against the said defendants. The Court held that the breach of some provision of the European Convention on Human Rights Act, 2003, by the State of Ireland could not ipso facto give birth to justifiable rights under domestic law of the State. The Court being bound by the dicta of the Supreme Court in O'Keeffe v. Hickey [2009] 2 I.R. 302, held that the Act of 2003 could not be applied retrospectively. The Court noted that reliance by the plaintiff on s.48A of the Act of 1957 without any factual basis would be of no avail. The Court held that a party's date of knowledge as required under s. 2(1) of the Statute of Limitations (Amendment) Act, 1991, for enlargement of the limitation period could not be reckoned by reference to a judge-made law. The Court opined that the State could not be held vicariously liable for the criminal acts done by an individual in an institution which was neither managed, owned nor controlled by the State.

JUDGMENT of Mr. Justice Noonan delivered on the 1st day of June, 2016.

This application is brought by the sixth, seventh and eighth defendants (‘the State defendants’) for an order setting aside the joinder of those parties as defendants on the grounds that the plaintiff's claim is statute barred as against the State defendants and/or discloses no reasonable cause of action against them.

Background and Chronology.

The plaintiff was born on the 31st October, 1960. As a young boy, he attended a primary school owned and managed by the Christian Brothers and known as North Monastery School, Cork. The first defendant was a Christian Brother and a teacher at the school at the material time. The plaintiff alleges that in or about 1970, he suffered sexual abuse at the hands of the first defendant. The second defendant is the nominated representative of the Congregation of Christian Brothers. The third defendant is the board of management of the school and the fourth defendant the owner and manager of the school. The fifth defendant is a Catholic bishop allegedly responsible for overseeing the school.

Unknown date prior to the 22nd November, 2010 – the plaintiff became aware that a relative of his brother-in-law was accused of sexually abusing children.


nd November, 2010 – the plaintiff made a formal complaint to An Garda Síochána.

First week of October, 2012 – the plaintiff's abuser, the first defendant, was convicted.


th October, 2012 – the plaintiff instructed solicitors.


st October, 2012 – the Personal Injuries Assessment Board issued an authorisation to the plaintiff in relation to the first five defendants.


th November, 2012 – a personal injuries summons was issued against the first five defendants.


th January, 2014 – the European Court of Human Rights delivered judgment in Louise O'Keeffe v Ireland (2014) 59 E.H.R.R. 15.


th July, 2014 – the Personal Injuries Assessment Board issued an authorisation to the plaintiff in relation to the State defendants.


th January, 2015 – Order of the Master joining the State defendants.


th February, 2015 – an amended personal injuries summons was served on the State defendants.

O'Keeffe v. Hickey [2009] 2 I.R. 302 .

The plaintiff brought a claim for damages for personal injuries arising out of her sexual abuse by the first defendant when she was a child attending a national school of which the first defendant was the principal. The acts complained of occurred in 1973. Although the school was recognised by the State as a national school, it was owned and managed by the local Catholic Diocese without any involvement by the State. The manager of the school was a Father O'Ceallaigh and in 1971, prior to the abuse suffered by the plaintiff, a parent of another child in the same school complained to Father O'Ceallaigh that this child had also been sexually abused by the first defendant. The plaintiff's proceedings were against the Diocese and also the State. The High Court dismissed the claim against the State holding that the State was not vicariously liable for the sexual abuse of the first defendant nor had negligence against the State been established. The plaintiff appealed against this finding to the Supreme Court which dismissed the appeal. In the course of his judgment, Hardiman J. said:

‘[75.] Accordingly it seems to me that the State defendants cannot be liable for the first defendant's tortuous and criminal acts on the ordinary and established principles of vicarious liability. The perpetrator was not the Minister's employee; the latter did not employ him or direct him. He was employed by the patron and directed and controlled by the manager.’

O'Keeffe v. Ireland (2014) 59 E.H.R.R. 15 .

Following the failure of the Supreme Court appeal in O'Keeffe v. Hickey, the plaintiff brought proceedings against Ireland before the European Court of Human Rights alleging a breach by the State of various Articles of the European Convention on Human Rights arising from the circumstances which were the subject matter of the earlier domestic litigation. The ECtHR in summarising its conclusions said:

‘[168.] To conclude, this is not a case which directly concerns the responsibility of LH, of a clerical Manager or Patron, of a parent or, indeed any other individual for the sexual abuse of the applicant in 1973. Rather, the application concerns the responsibility of a State. More precisely, it examines whether the respondent State ought to have been aware of the risk of sexual abuse of minors such as the applicant in National Schools at the relevant time and whether it adequately protected children, through its legal system, from such treatment.

The court has found that it was an inherent positive obligation of government in the 1970s to protect children from ill-treatment. It was, moreover, an obligation of acute importance in a primary education context. That obligation was not fulfilled when the Irish State, which must be considered to have been aware of the sexual abuse of children by adults through, inter alia, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of the young Irish children to non-State (National) Schools, without putting in place any mechanism of effective State control against the risks of such abuse occurring. On the contrary, potential complainants were directed away from the State authorities and towards the non state denominational managers (para. 163 above). The consequences in the present case were the failure by the non State Manager to act on prior complaints of sexual abuse by LH, the applicant later abused by LH and, more broadly, the prolonged and serious sexual misconduct by LH against numerous other students in the same National School.

[169.] In such circumstances, the State must be considered to have failed to fulfil its positive obligation to protect the present applicant from the sexual abuse to which she was subjected in 1973 whilst a pupil in Dunderrow National School. There has therefore been a violation of her rights under Article 3 of the Convention. Consequently, the Court dismisses the Government's preliminary objection to the effect that this complaint was manifestly ill-founded.’


The court went on to hold that no effective domestic remedy was available to Ms. O'Keeffe in relation to her complaints concerning a breach of Article 3 of the Convention and this amounted to a violation of Article 13.

The Pleaded Claim against the State Defendants

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