X.Y. v Shine
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 29 January 2020 |
| Neutral Citation | [2020] IECA 23 |
| Docket Number | Appeal No. 2019/130 |
| Court | Court of Appeal (Ireland) |
| Date | 29 January 2020 |
AND
[2020] IECA 23
Birmingham P.
Baker J.
McGovern J.
Appeal No. 2019/130
THE COURT OF APPEAL
Personal injuries – Intentional trespass to the person – Courts Act 1988 s. 1 – Respondent seeking damages for personal injuries – Whether the actions against the appellants were properly to be characterised as a cause of action in respect of intentional trespass to the person
Facts: The second appellant appealed to the Court of Appeal from the order of Ní Raifeartaigh J of 8 February 2019, made after delivery of a written judgment on 25 January 2019, [2019] IEHC 64, by which she determined that the plaintiff/respondent was entitled to have his claim tried by a judge sitting with a jury. The question at issue in the appeal concerned the meaning and effect of s. 1 of the Courts Act 1988 which entitles a plaintiff to a trial by a judge sitting with a jury in civil actions where the action seeks damages for false imprisonment or intentional trespass to the person, or both. The issue before the High Court was whether the actions against the second defendant and first appellant, Dorian McEvoy, and the third defendant and second appellant, the Health Service Executive, were properly to be characterised as a cause of action in respect of intentional trespass to the person within the meaning of the exception contained in s. 1(3)(b) of the 1988 Act. This judgment concerned the appeal of the first appellant only as, after the appeal was heard, but before judgment was delivered, the Court was informed that the proceedings against the second appellant had been compromised. The second defendant was sued in a representative capacity on behalf of the Medical Missionaries of Mary, a religious congregation (the Congregation).
Held by Baker J that the appeal of the Congregation, the first appellant, should be dismissed, as whilst the action against the Congregation was for damages based both on vicarious liability and in direct negligence for the assault and intentional trespass pleaded against the first defendant, Michael Shine, it was closely connected with the “core” claim for assault in the manner identified in the authorities.
Baker J held that the appeal would be dismissed.
Appeal dismissed.
This is the appeal of the second appellant from the order of Ní Raifeartaigh J. of 8 February 2019, made after delivery of a written judgment on 25 January 2019, X. Y. v. Shine [2019] IEHC 64, by which she determined that the plaintiff was entitled to have his claim tried by a judge sitting with a jury. The question at issue in the appeal concerns the meaning and effect of s. 1 of the Courts Act 1988 (“the 1988 Act”) which entitles a plaintiff to a trial by a judge sitting with a jury in civil actions where the action seeks damages for false imprisonment or intentional trespass to the person, or both. The issue before the High Court was whether the actions against the second defendant and first appellant, Dorian McEvoy, and the third defendant and second appellant, the Health Service Executive (“HSE”) were properly to be characterised as a cause of action in respect of intentional trespass to the person within the meaning of the exception contained in s. l(3)(b) of the 1988 Act.
This judgment concerns the appeal of the first appellant only as, after the appeal was heard, but before judgment was delivered, we were informed that the proceedings against the second appellant had been compromised.
The plaintiff's claim arises from events pleaded to have occurred in 1975, when he claims he was sexually abused by the first defendant, Mr Michael Shine. Mr Shine has taken no part in the proceedings or in the motions which gave rise to the order and judgment of Ní Raifeartaigh J. and it is the manner in which the trial against the second defendant is to be prosecuted that falls for consideration here.
The plenary summons issued on 17 April 2014 claims damages for personal injuries by reason of what is described as the “wilful assault and battery, trespass to the person, negligence and breach of duty (including breach of statutory duty, breach of trust and breach of the plaintiff's constitutional right to bodily integrity) by the first defendant his servants or agents”. That claim taken alone is one which a plaintiff is entitled to have tried by a civil jury.
The second defendant is sued in a representative capacity on behalf of the Medical Missionaries of Mary, a religious congregation (“the Congregation”) which at all material times operated Our Lady of Lourdes Hospital in Drogheda, County Louth (“the Hospital”) in which it is pleaded that Mr Shine was employed as a consultant surgeon. The Congregation denies that it employed Mr Shine in the Hospital and, without prejudice to its general denials, further denies that the events complained of happened in the Hospital premises, or in part of the Hospital in its ownership, control, or supervision.
Whether the plaintiff is entitled to have his claim tried by a civil jury is to be assessed on an analysis of his pleaded cases, as no argument was made that the claim was not reasonably pleaded on that basis.
Section 1 of the 1988 Act removes the previous entitlement of a plaintiff to elect to have a claim for damages for personal injury caused by negligence, nuisance or breach of duty tried by a judge and jury. The Act provides for a general rule that a civil trial is to be conducted by a judge sitting alone, save with regard to those actions for which exception is made in s. 1(3), which provides as follows:
“Subsection (1) of this section does not apply in relation to—
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court, on the application of any party, made not later than 7 days after the giving of notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both, as the case may be, in respect of that act or omission, or
(c) a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespass to the person or both, as the case may be, in respect of the act or omission concerned.”
The issue for determination in the present appeal is whether the action against the Congregation falls within the exception in s. l(3)(b) of the 1988 Act, that is whether the plaintiff's action against the Congregation is one for damages for intentional trespass to the person or for “another cause of action in respect of the same act or omission”.
The test, as Ní Raifeartaigh J. said, is if the claim is for damages “for another cause of action in respect of the same act or omission”.
The claim against the Congregation is pleaded as arising by reason of its vicarious liability for the acts of Mr Shine and in negligence. The issue paper prepared after case management identifies the material issues as whether the Congregation was vicariously liable for the pleaded acts of assault by Mr Shine, and whether it was negligent for allegedly allowing...
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