Wallace -v- Creevey & ors,  IEHC 294 (2016)
|Docket Number:||2012 11522P|
|Party Name:||Wallace, Creevey & ors|
THE HIGH COURT[2012/11522P]
GARY CREEVEY, JOHN KEVIN MULLAN, THE BOARD OF MANAGEMENT NORTH MONASTERY PRIMARY SCHOOL, EDUMND RICE SCHOOLS TRUST LIMITED, JOHN BUCKLEY AND BY ORDER, THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERALDEFENDANTS
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.
22nd 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.
17th October, 2012 – the plaintiff instructed solicitors.
31st October, 2012 – the Personal Injuries Assessment Board issued an authorisation to the plaintiff in relation to the first five defendants.
14th November, 2012 – a personal injuries summons was issued against the first five defendants.
28th January, 2014 – the European Court of Human Rights delivered judgment in Louise O’Keeffe v Ireland (2014) 59 E.H.R.R. 15.
16th July, 2014 – the Personal Injuries Assessment Board issued an authorisation to the plaintiff in relation to the State defendants.
20th January, 2015 – Order of the Master joining the State defendants.
11th February, 2015 – an amended personal injuries summons was served on the State defendants.
O’Keeffe v. Hickey  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
In the amended personal injuries summons served on the State defendants on 11th February, 2015, in addition to alleging that the State defendants are guilty of both primary and vicarious negligence arising from the abuse of the first defendant, the plaintiff also alleges that the State defendants are in breach of the European Convention on Human Rights, the Constitution and other international conventions. Particulars of alleged breaches are given.
The Evidence Before the Court on this Application.
The affidavit grounding this motion was sworn by the solicitor for the State defendants, Joseph O’Malley. He avers that the State defendants had no involvement in the day to day management of the school attended by the plaintiff nor was it under their auspices, direction or control. He avers that the school was under the patronage of the Bishop of Cork and was managed by the Christian Brothers and the State defendants had no contractual relationship with any members of staff nor had they any responsibility for recruitment, supervision or management of staff. None of this is in dispute.
A replying affidavit was sworn by the plaintiff. On the issue of the Statute of Limitations, he avers (at paras. 2-4 ):
“…I say and believe that the said abuse caused your deponent to suffer severe personal injuries, trauma, upset and interference with my life, which continued into my adulthood and continues to this day, to the extent, inter alia, that I had been psychologically incapacitated to such an extent that he (sic) had been unable to make a formal complaint to the Gardai in relation thereto until on or about the 22nd November, 2010.
I say and believe that as a result of a criminal prosecution on foot of that complaint, the first named defendant was ultimately convicted by the District Criminal Court of the offences pertaining to the said abuse perpetrated on the plaintiff. I say that one of the effects of the said successful conviction of the first named defendant was to free your deponent from certain psychological inhibitions about pursuing the within claim for civil redress for the abuse and harm he had suffered.
I say that until that time your deponent had been suffering from a psychological injury caused by the said abuse and that it was of such significance that my will and ability to make a reasoned decision to bring the within proceedings was substantially impaired as a result. I say that the only objective medical evidence on this issue before the Court is to the same effect. In this respect, I beg to refer to copies of the report and letter of Dr. Mairead O’Leary, consultant psychiatrist…”
Although not specified in the plaintiff’s affidavit, in the course of the hearing of this application, it emerged that the first defendant’s conviction occurred in the first week of October, 2012. In the exhibited letter from Dr. O’Leary dated 28th July, 2014, she says:
“I have no doubt therefore that the nature of the sexual abuse that Mr. Creevey perpetrated on Mr. Wallace affected his ability to make a reasoned decision to bring an action against him until the time he heard that his...
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