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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kelly v. O'Leary [2001] IEHC 218 (22 June 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/218.html Cite as: [2001] IEHC 218 |
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1998/No 3790p
PLAINTIFF
DEFENDANT
JUDGMENT of Mr. Justice Kelly, delivered the 22nd day of June 2001
INTRODUCTION
The Plaintiff is in her seventieth year. She was married fifty years ago and has nine children all of whom are over twenty one years old. She brings these proceedings seeking damages in respect of events alleged to have occurred between 1934 and 1947. This action began on the 26th March, 1998 over fifty years from the last wrongful act alleged.
Given the remove in time between the acts alleged and these proceedings the defendant seeks to invoke the inherent jurisdiction of the court to dismiss this action at this stage. Both sides agree that the case is unprecedented in one respect. Never before has a court in this jurisdiction been asked to deal with an application of this type in circumstances of such a remove in time between the acts alleged and the commencement of proceedings.
THE ALLEGATIONS
The plaintiff was born in September 1931. She alleges that she was placed in Goldenbridge orphanage in 1934 and remained there until 1947. That orphanage was run by the Sisters of Mercy. The defendant is sued in a representative capacity in respect of the Goldenbridge convent.
The plaintiff alleges that "throughout the period 1934 to 1947 but in particular from the year 1936/1937 onwards the Defendant failed grossly in its duty to care for and protect the Plaintiff in that it, it's servants and agents, inflected (sic) serious physical and mental injuries on the Plaintiff."
The plaintiff makes no allegations of any form of sexual abuse having been perpetrated upon her.
In the statement of claim which was delivered, particulars of the alleged physical and mental abuse allegedly suffered by the plaintiff whilst she was in the care of the Sisters of Mercy are set out as follows
"(a) the Plaintiff was subject to systematic beatings by Sr Bernadine and Sr Xaviera with implements being used, on occasion, to inflect (sic) further pain and injury. These implements included, inter alia, a large bunch of keys and a leather strap;
(b) the Plaintiff was kept in solitary confinement by Sr Xaviera from time to time and deprived of food and sustenance;
(c) the Plaintiff was stripped of her clothes and her hair was shorn by Sr Xaviera and forced to wear rages (sic) and was humiliated publicly;
(d) the Plaintiff was forced to remain kneeling by Sr Xaviera for prolonged periods in front of a statue in the big corridor;
(e) the Plaintiff was told constantly throughout her period of residence at the orphanage by Sr Xaviera that her family was bad and that she was a bad person, not worthy of love and care, and that she had to be punished;
(f) the Plaintiff was caused by Sr Xaviera to strike her head off a fixed column thereby splitting open an area over her left eye causing permanent scarring and disfiguration (sic). No medical treatment was given to the Plaintiff at that time;
(g) the Plaintiff was left so damaged and intimidated and so overborne with fear of the Defendant that she was mentally and emotionally incapable of coping with the damage or with any criminal or civil claim arising therefrom until counselling facilities were made available to her in 1997".
The statement goes on to allege that as a result inter alia of the abuse alleged the plaintiff suffered personal injury, loss and damage. It is said that those injuries were caused by the negligence, breach of duty and breach of statutory duty of the Sisters of Mercy. The particulars of negligence and breach of duty read as follows
"The Defendant, its servants or agents, were negligent and in breach of duty in that it (sic);
(a) failed to provide proper or adequate or reasonable care to the Plaintiff;
(b) failed to provide competent or suitable staff to care for the Plaintiff;
(c) failed to have any or any adequate system of inspection to ensure that the Plaintiff was being properly and competently cared for;
(d) permitted the Plaintiff to suffer and be damaged in the manner pleaded at paragraph 4 above;
(e) acted contrary to and in breach of Section 12 of the Children Act, 1908 as amended".
The particulars of personal injuries read as follows.
"7 (a) due to the regime of terror and abuse enforced and permitted by the Defendant, its (sic) servants or agents, and inflected (sic) on the Plaintiff during her 13 year stay, between the ages of 13 (sic) and 16, at the Defendants institution, the Plaintiff has suffered and continues to suffer serious adverse sequelae;
(b) the psychological trauma perpetrated on the Plaintiff had caused her to suffer a series of nervous breakdowns. Due to the Plaintiff being constantly told that her family as bad and constituted a negative force she had been unable to form any meaningful relationships with family members;
(c) the Plaintiff was unable to form any close friendships with members of her own sex or any relationships with members of the opposite sex as a result of the damage and abuse inflected (sic) upon her;
(d) the Plaintiff's marital relationship, and her relationships with her children, have been seriously adversely affected by the damage sustained by her during her stay ".
Following the delivery of the statement of claim a searching Notice for Particulars dated the 9th November, 1998 was served upon the plaintiff
Amongst other things these particulars alleged:
(a) That the beatings allegedly carried out by Sr Bernardine and Sr Xaveria occurred in a significant number of cases in an area known as "the cubby-hole" which was described as a small dark room off the dressing-room. However, beatings occurred at any time and at any location.
(b) A lot of the beatings were carried out in the presence of other unnamed children.
(c) The beatings took place on a daily basis and the plaintiff was kept in solitary confinement in the cubby-hole on average twice a week over a period of thirteen years.
(d) The plaintiff was stripped of her clothes on regular basis by Sr Xaveria who was at times assisted by a Miss Gorry. The plaintiffs head was shorn by Sr Xaveria assisted at times by Miss Gorry on a regular basis without any prior warning.
(e) The plaintiff was humiliated on a daily basis. In particular on the occasion of the plaintiffs confirmation she spilled food on her confirmation dress. Sr Xaveria pulled the plaintiff by the ear down the corridor and stripped her clothes off. She then forced her to wear rags for a few days and encouraged other children to laugh at the plaintiff.
(f) The plaintiff was ordered to kneel at the statue of the Sacred Heart for hours at a time on a regular basis. A Fr Barry who regularly visited the orphanage saw the plaintiff there and spoke to her.
(g) On one occasion when Sr Xaveria was attempting to strike the plaintiff with a large bunch of keys, the plaintiff in an effort to avoid the blow, fell and struck her head on a column in the main hall. A permanent scar developed at the site of that injury.
The plaintiff in response to a question posed in the Notice for Particulars indicated that medical evidence will be called at the trial to the effect that she suppressed memories of what was described as the "appalling mental and physical torture inflicted on her during her time at Goldenbridge". This evidence it is said will show how counselling assisted the plaintiff recalling her past and dealing with it for the first time. The plaintiff also disclosed that she has suffered nervous breakdowns on three occasions. When asked how she alleged that she was unable to form a close relationship with a member of the opposite sex she indicated that that would be the subject of evidence at the trial. She disclosed her marriage as having taken place in 1951. She also disclosed that she has nine children all over the age of twenty one years.
A request for further particulars dated the 5th February, 1999 was responded to on the 1 st March of that year. It disclosed that the plaintiff suffered her first nervous breakdown approximately thirty three years ago and was admitted as a patient at St James's Hospital for approximately three weeks under the care of Prof Noel (sic) Browne. Three or four years later she suffered a second nervous breakdown and was treated by Prof Browne as an out-patient. She subsequently suffered a third nervous breakdown but was unable to provide details at that time. The plaintiffs solicitor confirmed that Prof Ivor Browne attended the plaintiff in respect of these illnesses but that his records no longer exist.
A full defence was delivered on the 27th May, 1999. In addition to a denial of all of the allegations a number of special defences were raised including the preliminary objection which is the subject matter of this ruling.
The Evidence on this Application
Four affidavits were sworn in respect of this application. The principal affidavit grounding the application is sworn by Paul McDonald a solicitor representing the defendant. In that affidavit he points out that the plaintiff alleged that she suffered a nervous breakdown on three occasions. However he says she declined to give full particulars of the personal injuries but stated that medical reports were awaited and that further details would be furnished when they came to hand. No such medical details had been furnished as of the date of swearing of his affidavit which was the 12th May 2000. He said that detailed investigations were carried out into the allegations made by the plaintiff and in particular into the evidence available to the defendant to deal with them. He then asserts that it will not be possible for the defendant to have a fair trial of these allegations and that grave prejudice has ensued as a result of what is described as a "quite unique delay" in the institution of the proceedings.
Mr McDonald says that according to the defendant's archives the plaintiff was admitted to Goldenbridge Industrial School on the 20th July 1934 and was ordered to be detained there until the 15th September 1947. Of the two sisters against whom allegations are made one, Sr Bernadine, is dead having passed away in October 1990. The second, Sr Xaviera, is now 82 years of age and has long since retired. The defendant has been unable to identify any Ms Gorry as ever having worked in Goldenbridge. There was at one stage a Ms Guirey but only from 1954 onwards. He points out that in fact Ms Guirey was in Goldenbridge when the plaintiff voluntarily sent three of her children into care in that institution in 1960. Ms Guirey was the applicant named on the detention order referring to the plaintiffs children.
Mr McDonald says that the death of Sr Bernadine, the inability to trace any Ms Gorry and the age of Sr Xaviera has prejudiced the defendant in the defence of the these proceedings. He points out that Sr. Xaviera would have had hundreds of children under her control during the twenty one years in which she was involved in Goldenbridge. He says there are obvious difficulties for Sr Xaviera in attempting to deal with the allegations at such a remove in time and particularly having regard to the number of children under her care. The Fr. Barry who is mentioned in the plaintiffs replies to particulars as someone who regularly visited the orphanage, saw the plaintiff and spoke to her died in November 1973. It is asserted that he would have been a very important if not essential witness.
Finally it is pointed out that the plaintiff alleges that she suffered a nervous breakdown on three occasions. The first was approximately thirty three years ago followed by a second one three or four years later. On each occasion she was treated by Professor Ivor Browne. She subsequently suffered a third nervous breakdown but is unable to say when that took place. Mr McDonald asserts that the circumstances of those breakdowns and the details and causes thereof are critical in defending the Plaintiffs allegation. However as the records in relation to them are no longer available potentially vital sources of evidence have been lost to the defendant
The plaintiff swore the sole replying affidavit to this application on the 22nd September 2000. Having alluded to the defendant's delay in delivering its defence on the 27th May 1999 the plaintiff points out that her solicitor sought voluntary discovery on the 2nd September 1999. That request was not complied with and so a motion to compel the making of discovery was issued but has been adjourned pending my decision on this application. The defendant did however obtain an order for discovery against the plaintiff on the 30th July 1999 but that had not been complied with by the time the plaintiffs affidavit was sworn in response to this application.
Amongst the letters exhibited in the plaintiffs affidavit are two from her solicitors. The first is a request to the Records Department at St. Brendan's Hospital, Grangegorman seeking her records whilst a patient there. The letter makes it clear that she may have been a patient at that hospital following a breakdown after the birth of some of her children between the years 1952 and 1975. Another addressed to the Records Department of the Coombe Hospital makes it clear that the plaintiff suffered severe trauma on the birth of two of her children. There is also a letter to a Mr David Sweeney at St. James's Hospital which makes it clear that the plaintiff suffered what is described as "a severe psychological breakdown " after the birth of her last child who was born on the 10th March 1966.
The plaintiffs affidavit goes on to point out that the Sr. Bernadine who in the statement of claim was alleged to have subjected her to systematic beatings never at any time mistreated her. In fact she describes Mother Bernadine as "a very kind and gentle person ". The fact that this allegation was made in the Statement of Claim is said to be due to an error on the part of the plaintiffs solicitor. She reiterates her complaints against Sr. Xaviera and then goes on to say that there was indeed a Ms Gorry at Goldenbridge during the time that the plaintiff was there. She expressly says that she did not confuse Ms Gorry with Ms Guiry.
The plaintiff then goes on to say that the death of Mother Bernadine has no bearing on the proceedings in the light of the information now disclosed in the affidavit. The plaintiff says that there is no evidence before the court that Sr. Xaviera does in fact have difficulty dealing with the allegations or in recalling the incidents or indeed the plaintiff herself. She does not agree that Fr. Barry would be an important and essential witness. This is so notwithstanding the fact that in the replies to particulars he was identified as someone who saw the plaintiff kneeling at the statue of the Sacred Heart for long periods and spoke to her. The plaintiff points out that there is no suggestion that Sr. Xaviera is unfit or unable to attend the court hearing.
The plaintiff says that Professor Browne is alive and has prepared a medical report for the purposes of the hearing of the proceedings. She says that the absence of the accompanying records regarding the treatment given by Professor Browne represents a difficulty for her as much as it does for the defendant.
In a replying affidavit Mr McDonald contends that the defendant has been deprived of the reasonable possibility of investigating the nature and cause of the Plaintiffs present complaints by the absence of any evidence of the treatment which she is alleged to have received between 1947 and 1998. He says that the absence of the relevant medical records has deprived the defendant of examining and testing the plaintiffs claim. The proposed exchange of medical reports prepared in contemplation of the proceedings, he says, cannot assist the defendant in respect of the medical records which have been lost. He points out that the plaintiff has been unable to identify the nature and extent of the medical treatment which she received from 1947 and which is material to her claim. In particular he points out that in the case of the one medical adviser who has been identified by her, his contemporaneous notes of his treatment of the plaintiff are missing. He says that on the basis of the evidence supplied it appears that the plaintiff developed mental difficulties following the birth of her last two children some twenty years after leaving Goldenbridge. He points out that it is unclear as to whether or not postnatal depression was an element or indeed the major feature in the clinical picture at that stage. He says that the plaintiffs admission that the absence of Professor Browne's accompanying records creates a difficulty for her is an express acknowledgment by her that the defendant has been prejudiced in the conduct of her defence.
He then goes on to deal with a number of specific matters by reference to the plaintiffs allegations. He points out that the plaintiff has alleged that the assaults upon her took place throughout her period of detention and in particular from the year 1936 and 1937 onwards. Sister Xaviera did not enter Goldenbridge until 1942. The plaintiff has alleged that she was kept in solitary confinement in a location described as a cubbyhole on average twice a week over a period of thirteen years. For eight of those years Sr. Xaviera was not at Goldenbridge. The nun who was in charge at the time was a Sr. Fidelma and she is now dead. The staff of Goldenbridge during the period in respect of which allegations have been made by the plaintiff included a Ms Lowe, a Ms Rainsfort, both of whom are now deceased. Srs. Leonard Lane, Cyprian Farrell and Louis Daniel were the Superiors in Goldenbridge during the period the plaintiff was detained in the Industrial School and were also the resident managers of it. All of them are dead. Sr. Fidelma was in charge of the Industrial School until Sr. Bernardine and Sr. Xaviera arrived. She is also dead. Dr. Dillon, the doctor who looked after the children in the Industrial School and who would have called on a regular basis is long since deceased. All of these persons were potentially significant witnesses for the defence in this action it is said and are now not available. He says that to the best of his knowledge the Ms Gorry referred to by the plaintiff in the proceedings was not employed at Goldenbridge Industrial School at any time between 1942 when Sr. Xaviera arrived there and 1947 when the plaintiff left. She was not the sewing mistress at that time or any other time. She is unknown to any of the surviving nuns and does not appear in any of the records.
He notes that the plaintiff has now resiled from the allegations made against Sr. Bernardine. However he says that it seems extraordinary that not only could have there have been confusion between the plaintiff and her solicitor at the time of the drafting of the statement of claim but that that confusion could have persisted at the time when the plaintiff was providing the information for the purposes of replying to particulars. He says the fact that such an error, if it was an error, has crept into the plaintiffs claim in these proceedings reflects the dangers confronting the defendant when dealing with allegations made against Sr. Xaviera in relation to the same period of time when Mother Bernardine was involved in the management of Goldenbridge Industrial School. Mother Bernardine was the Resident Manager and many years senior to Sr. Xaviera in the Sisters of Mercy. She would accordingly have been a most important witness as it was she and Sr. Xaviera who ran the Industrial School assisted by the other staff. The death of Mother Bernardine prior to the institution of the proceedings and the plaintiffs persistence in making allegations against a person who was never employed at the school and who cannot be traced represents he says a grave and substantial prejudice to Sr. Xaviera's ability to deal with the plaintiffs allegation. The situation which now obtains is that Sr. Xaviera and the defendant, it is said, find themselves in a situation where they may be subjected to a trial in relation to grave allegations and circumstances where they will not be in a position to call any independent evidence to support their defence.
He says that Sr. Xaviera does remember the plaintiff. But she totally rejects the allegations made by the plaintiff in these proceedings. She has difficulty in recalling particular instances more then fifty years later but nonetheless she is absolutely satisfied he says that the allegations made by the plaintiff are untrue. He points out that approximately one thousand children would have gone through Goldenbridge during Sr. Xaviera's time there. This renders it difficult for her to remember specific instances after so many years.
The final affidavit in respect of this motion was sworn by James Lucey a consultant psychiatrist. He is attached to the James Connolly Memorial Hospital and is also the Senior Lecturer in Psychiatry in the Royal College of Surgeons in Ireland.
Dr. Lucey was retained by the defendant in order to assess the plaintiff for the purposes of the proceedings. He avers that he had to inform the defendant that a proper assessment of the nature of the injuries, if any, sustained by the plaintiff and, in particular, an assessment of the cause of those injuries was not possible for a number of reasons. The principal reason is the fact that no notes are available with regard to the alleged bouts of illness on three separate occasions the earliest of which is approximately thirty four years ago. He says that it is not therefore possible to draw conclusions as to the cause and effect or extent of the illnesses without reference to the contemporaneous accounts. He furthermore says that it would be important for the purpose of a diagnosis and evaluation to establish what the plaintiff attributed her difficulties to at the time of the alleged complaints. The contemporaneous notes could confirm whether or not she attributed any symptoms or illness to her time in Goldenbridge or whether she cited some other events as the causes of her difficulties at the time. He says that contemporaneous records commonly include other details of circumstances or history from third parties. These elements of so called collateral history are crucial when clinical assessments are made and are not available at this time. He says that in the absence of any medical records relating to the period he cannot see how it would be possible to come to a proper assessment of the nature, extent and cause of these problems and he therefore has declined to make such an assessment of the plaintiff because the exercise would to use his own words be "meaningless ".
THE LEGAL POSITION
It cannot be doubted but that the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so. (per Hamilton C J. in Primor plc v Stokes Kennedy Crowlev [1996] 2 IR 459 at 475.
Indeed that jurisdiction can be exercised even in circumstances where proceedings have been instituted within the relevant limitation period. In Southern Mineral Oil Limited (in liquidation) v Coonev (1997) 3 IR 549 at 562 Keane J. (as he then was) said:
"/t is clear that the jurisdiction to strike out proceedings where there has been delay can be exercised even though the proceedings were instituted within the relevant limitation period. Where the delay has been so extreme that it would be unjust to call upon a particular defendant to defend himself or herself, the guarantee under the Constitution of fair procedures cannot be defeated by the operation of a particular limitation period".
The legislature has expressly recognised the existence of this jurisdiction in the Statute of Limitations (Amendment) Act, 2000. That Act amended the Statute of Limitations 1957 so as to provide that certain persons are to be treated as under a disability for the purpose of bringing actions relating to acts of sexual abuse committed against them prior to their reaching full age. Notwithstanding the extension of the limitation period for such persons section 3 of the Act provides as follows:
"Nothing in section 48(A) of the Statute of Limitations 1957 (inserted by section 2 of this Act), shall be construed as affecting any power of a court to dismiss an action on the ground of there being such delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant its dismissal".
THE PRINCIPLES APPLICABLE
In the last twenty years the Supreme Court and this Court have had to consider the exercise of this undoubted jurisdiction on quite a number of occasions. In the course of this case I was referred to all of those decisions. Some of the cases deal with delays between the occurrence of the events which have given rise to the proceedings and the institution of the proceedings themselves. Others involve delays in the conduct of proceedings such as a failure to deliver pleadings for lengthy periods of time. Other cases deal with a combination of such events.
In the present case the defendant does not rely upon delays which have occurred subsequent to the institution of proceedings. The sole complaint in this case relates to the delay between the events giving rise to this action and the commencement of proceedings.
In O' Domhnaill Merrick [1984] IR 151 Henchy J. delivering the majority judgment of the Supreme Court said at page 157:
"The question to be answered in this appeal, therefore, is whether the defendant should be required in the circumstances to seek to rebut an allegation of negligence on her part in an accident that happened virtually a quarter of a century before the trial, and to meet a claim for heavy damages for personal injuries suffered by the plaintiff in that accident, which she first learned of such a claim 16 years after the accident…………..whether the delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In all cases the problem of the court would seem to be to strike a balance between a plaintiffs need to carry on his or her delayed claim against a defendant and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected to defend".
Later in the judgment he said:
"I consider it would be contrary to natural justice and an abuse of the process of the Courts if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial, and a claim for damages of which she first learned 16 years after the accident..... While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons, a trial in 1985 of a claim for damages for personal injuries sustained in a road accident in 1961 would be apt to give an unjust or wrong result, in terms of the issue of liability or the issue of damages, or both. Consequently, in my opinion, the defendant, who has not in any material or substantial way contributed to the delay, should be freed from the palpable unfairness of such a trial.
The parties are agreed that the plaintiff, in bringing these proceedings has kept within the limitation period fixed by the Statute of Limitations, 1957. That agreement is on the basis (which I accept for the purpose of this case) that the period of limitation ran to a date which was three years after the plaintiff became of full age. The proceedings were unquestionably commenced within that period But that does not mean that the proceedings may not be struck out for being an abuse of the process of the Courts.
In ToalvDuienan (No. 1) 1991 (ILRM 135 at 139) Finlay C.J. delivering the judgment of the Supreme Court said:
"In the High Court it was held by Keane J. that the case was governed by the decision of this Court in O' Domhnaill v Merrick [19841IR 151. I am in agreement with that view of the law. It is unnecessary for me to repeat here the principles laid down by this Court in that case, but they may be summarised in their application to the present appeal as being that where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action".
In Primor plc v Stokes Kennedy Crowlev [1996] 2 IR 459 Hamilton C.J. summarised the principles of law relevant to the jurisdiction to dismiss an action for want of prosecution as follows at page 475:
"(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so.
(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to
(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,
(iii) any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business".
Counsel for the defendant suggests that this case was principally concerned with delays which had taken place in the conduct of proceedings which were instituted within the normal limitation period. He says that the court was dealing with delays which took place in the conduct of those proceedings post initiation. In the other cases which I have cited the court was concerned with delays which occurred between the events complained of and the commencement of proceedings. He suggested that this case more closely resembled those and that therefore the threefold test adumbrated by Hamilton C.J. in the Primor case was not applicable but rather the arguably broader approach succinctly summarised by Finlay C.J. in Toal v Duisnan.
He submitted that there are in fact two quite separate tests. One is that suggested in O'Domhnaill -v- Merrick and Tool -v- Duisnan which deals with delays between the acts complained of and the commencement of proceedings. The other is the Primor test which deals with delays post the institution of proceedings.
Counsel for the plaintiff accepts that the O'Domhnaill and Toal cases did not require the establishment of both inordinate and inexcusable delay before considering the balance of justice. But he contends that in accordance with Primor the defendant here must satisfy the more stringent threefold test there prescribed before the order sought could be granted.
I do not propose to answer the interesting question as to whether or not there are two different tests. Rather I will for the purposes of this case apply the Primor test which is the more demanding of the defendant and the more favourable to the plaintiff. It was the test urged by counsel for the plaintiff and is in ease of her. The issue of principle, if there is one, will have to be left to another day.
HAS THERE BEEN INORDINATE DELAY?
Counsel for the plaintiff points out that the defence delivered in the proceedings contains a plea to the effect that the action is time barred pursuant to the provisions of the Statute of Limitations 1957 as amended. The court has not been called upon to adjudicate upon that question. Consequently, it is submitted, the court must assume that the action has been taken within the relevant time in the absence of a determination to the contrary.
Notwithstanding that submission, counsel nonetheless did not seriously contest that there has been inordinate delay in this case. Even if he had attempted to do so his task would have been well nigh impossible given that over fifty years elapsed between the last act of wrongdoing alleged and the commencement of the proceedings.
In these circumstances I have no hesitation in answering this question in the affirmative. An inordinate time did elapse before these proceedings were commenced.
HAS THE DELAY BEEN INEXCUSABLE?
Little or no evidence has been placed before the court as to the presence of excusing circumstances concerning the delay in question. The plaintiff has been free of the dominion, if dominion there was, of the Sisters of Mercy for well over fifty years. During that time she married and had a large family. No medical or psychological evidence has been given in her support by way of affidavit although ample time was afforded to enable such an affidavit or affidavits to be sworn.
Heavy reliance was placed by the plaintiffs counsel on the decision of Costello J. in Guerin -v- Guerin [1992] 2IR 287. In that case Costello J. (as he then was) formed the view that an inordinate delay by the plaintiffs parents and by the plaintiff in instituting proceedings should be excused by the court in view of their failure to appreciate that they had a cause of action coming as they did from a socially deprived background.
The facts were that the plaintiff, a thirty two year old unemployed man, suffered severe head injuries when he was injured in a road traffic accident in 1964 at four years of age. The car in which he was a passenger at the time of the accident was owned by the first defendant and driven by the second defendant. At the time of the accident the first defendant was in England but he had left his car and car keys in the custody of his father who could not drive. The first defendant's father had allowed the second defendant to use the car. Following the accident the second defendant was prosecuted for dangerous driving but failed to defend the prosecution and was convicted of careless driving. Because of their disadvantaged social background neither the plaintiffs parents nor the plaintiff realised that they had a cause of action until 1984 when the plaintiff had a fortuitous meeting with a solicitor. The plaintiff instituted proceedings in that year but thereafter delayed in prosecuting them. He claimed that the second defendant was personally liable for his injuries and that the first defendant as owner of the car was vicariously liable having given his implied consent to the second defendant to drive on the occasion of the accident. The defendants filed separate defences denying liability.
The first defendant applied to have two preliminary issues tried. They were (a) whether because of the plaintiffs delay his claim should be stayed and (b) whether the second defendant was the servant or agent of the first defendant when driving his car at the time of the accident.
It is clear from the report that Costello J. heard extensive evidence from the plaintiff, his mother, his brother who was a young boy of twelve on the day of the accident and was in the car when it occurred, another brother Gerard, the first defendant; a friend, William Russell; the second defendant; his wife (the plaintiffs sister) and the solicitor acting for the second defendant in 1984 and since. The judge went on to make a number of findings of fact. As a result of those facts he reached conclusions to the effect that although the delay of over twenty years in instituting the proceedings was an inordinate one it could be excused. The circumstances justifying such excuse were stated as follows:-
"The plaintiffs family lived in one of the poorest sectors of the community, the permanently unemployed. With fourteen children to rear and dependent on welfare payments for their livelihood they must have lived most of their lives at or below subsistence level. Theirs was an economically and socially deprived world from which the world so familiar to lawyers in which people sue and are sued was remote and arcane. If, as I am sure was the case, they did not appreciate that their son might have had a cause of action to compensate him for the injury he had sustained, I do not think they should be blamed for this. Nor should Peter Guerin be blamed when having attained adulthood he failed to seek legal advice. He left school at a young age and has since been mainly unemployed It seems to me that he had accepted his misfortune with considerable fortitude and that it never entered his head until a chance meeting with a solicitor in 1984, that he had a right to seek compensation for what had happened to him. I would excuse both the plaintiffs parents and the plaintiff himself for the failure to institute these proceedings before 1984."
Later in the judgment the judge concludes that no great injustice would be done to the defendants if the claim were allowed to proceed because it had not caused any significant prejudice either on the issue of liability or on the issue of damages.
It is suggested that the plaintiff here is in much the same situation as was the plaintiff in the Guerin case. I cannot accept that to be so. There is no evidence put before the court which would suggest that such is the case. There is nothing like the evidence that was adduced in the Guerin case which persuaded Costello J. to make the decision which he did. Although a great deal of time was allowed for the filing of affidavit evidence by the plaintiff in this motion, just a single affidavit was sworn and in my opinion it goes nowhere near establishing facts similar to that in Guerin's case which might excuse this delay.
Neither is there any suggestion of a type which has now become familiar particularly on applications on the judicial review side to stay criminal prosecutions in respect of sexual offences committed against minors many years ago of any form of dominion over the complainant. Here such dominion as was exercised by the Sisters of Mercy ceased well over fifty years ago. The plaintiff went on to marry and rear a large family to adulthood. No evidence has been adduced seeking to explain much less excuse the delay in proceedings here.
True it is that there is an assertion in the particulars delivered that the plaintiff suppressed memories because of the treatment alleged to have occurred whilst in the orphanage. But there is not a single averment by way of sworn evidence in support of that contention.
I have therefore come to the conclusion that this question must, as was the first, be answered in a manner adverse to the plaintiff. I hold that the delay was both inordinate and inexcusable.
That of course, is not an end of the matter. I must now go on to consider whether as a matter of discretion the balance of justice is in favour of or against the case proceeding.
BALANCE OF JUSTICE AND CONCLUSIONS
In considering this issue I bear in mind the decision of the Supreme Court in Primor and the enunciation there of the matters that the court is entitled to take into consideration under this heading.
With discovery issues still outstanding there is no realistic prospect of this action coming to trial before 2002. The effect of that will be that the defendant will be required to defend proceedings in respect of incidents which took place between fifty five and sixty eight years ago. Next year Sister Xaviera will be eighty three years of age. It is part of the human condition that memory fades and on occasion distorts over periods of time. Normal fading and distortion of memory is presumed where long periods are involved (see Sheehan-v-Almond fl9821IR235). The sister cared for approximately 1,000 children over the years that she was in Goldenbridge and it is therefore hardly surprising that there is evidence to the effect that she cannot remember specific incidents. The superior at the relevant time, Mother Bernadine against whom serious complaints were made in these proceedings and were persisted in for a considerable period of time before being withdrawn, is dead. She is not available therefore as a witness for the defendant. Father Barry, who is specifically mentioned by the plaintiff as being a witness to one particular form of alleged abuse, is also dead. Dr Dillon the general practitioner who attended Goldenbridge, has also died. The allegations relate to the period 1934 to 1947. Sr Xaveria was at Goldenbridge from 1942 onwards. All of the sisters who were superiors during the period in question (Srs. Fidelma, Cyprian, Leonard and Louis Daniel) are dead as are Ms Lowe and Rainsfort. Virtually all of the witnesses who might be available to the defendant have died. Non-availability of witnesses is of course a matter that must be taken into account.
Whilst this is not a "documents" case, such as the Primor one, nonetheless documents do play an important role in it. On the evidence before me, the plaintiffs medical records must be relevant in respect of the issue of causation of her medical complaints. Without them the defendant is unable to properly investigate the cause of the plaintiffs mental distress. There is uncontroverted evidence to that effect before me. Indeed the psychiatrist retained by the defendant says that he will not make an assessment of the plaintiff because it would be 'meaningless' to attempt to do so.
I am satisfied that there is here a clear and patent unfairness in asking this defendant to defend this action after the lapse of time involved. Actual prejudice has occurred to the defendant by reason of the delay. The defendant has not contributed to this delay.
There is here a real and serious risk of an unfair trial. As a matter of probability the trial may amount to an assertion countered by a bare denial. Indeed even the ability of this defendant to make a denial is doubtful in respect of a number of allegations. Such an exercise would be far removed from the form of forensic enquiry which is envisaged in the notion of a fair trial in accordance with the law of this State.
Constitutional principles of fairness of procedure require that the action not proceed. To allow the action to go on would put justice to the hazard. The motion is granted. The action is dismissed.
