Court allows civil jury trial for sexual assault damages linked to vicarious liability negligence claims under Courts Act 1988.

THE SUPREME COURT

No. 347/2003

Hardiman J.

Fennelly J.

Macken J.

BETWEEN

RICHARD SHERIDAN

Plaintiff/Appellant

and

PATRICK KELLY and ANTHONY MARK McDONNELL

Defendant/Respondents

JUDGMENT of MR JUSTICE FENNELLY delivered on the 6th day of April, 2006.

1. This appeal concerns the right to a civil jury for a claim for damages for personal injury as a result of sexual assault. It involves

consideration of section 1 of the Courts Act, 1988.

2. The plenary summons issued on 1st November 1999 claims:

1. Damages for assault, including sexual assault, together with punitive, exemplary, and/or aggravated damages in respect of

same.

2. Damages for negligence, breach of duty and breach of fiduciary duty, including aggravated, exemplary or punitive damages.

3. Damages for breach of the Plaintiff’s Constitutional rights…

3. In the statement of claim delivered on 10th April 2000, the plaintiff pleads as follows. The first named defendant is a Christian

Brother and was Principal of Oatlands Junior School, Stillorgan, County Dublin, but with a present address at Arbour Hill Prison. The

plaintiff was a student there from 1983 to 1986. The second named defendant is sued as representative of the Congregation of

Christian Brothers. The central allegation in the statement of claim is:

“Wrongfully, in breach of duty, and breach of fiduciary duty, in breach of the Plaintiff’s constitutional rights to bodily integrity,

and in breach of his rights of religious and moral welfare, the first named Defendant, unlawfully subjected the Plaintiff to gross

sexual assault, trespass to his person, violation of his bodily integrity and diminution of his self-esteem as an individual. The

Plaintiff was subjected to repeated episodes of sexual assault.”

4. There follows a list of particulars of assault and gross indecency upon the plaintiff. It is then pleaded that:

“By reason of the foregoing assaults, the Plaintiff sustained serious personal injuries, trauma, psychological damage, loss and

damage.”

There then follows a plea that the assaults were carried out while the first named defendant “was acting as a servant or agent of the

second named Defendant and that the said conduct amounted to breaches of fiduciary duty, breaches of trust, negligence and

breach of duty ……assault and/or battery and breach of the Plaintiff’s constitutional rights, for which the second named Defendant is

vicariously liable.”

5. That statement of claim then lists particulars of the negligence “in and about their fiduciary duty as religious, moral and civic

educators” alleged against the second named defendant his servants or agents. There is included a number of allegations that the

second named defendant knew or ought to have known that the first named defendant was unsuitable to have unsupervised contact

with children, of failure to scrutinise and monitor his contact with children, and, in particular an allegation that the second named

defendant:

“Failed to have in place procedures or measures appropriate for the regulation and supervisions of members of his

congregation charged with the duty of educating young persons ethically, religiously and secularly.”

6. The defence of the first named defendant is not material to the present appeal. The second named defendant filed a full defence,

stating, inter alia: that it is a stranger to the allegations of sexual assault made against the first named defendant and that he or his

servants or agents are not vicariously liable for the acts alleged against the first named defendant.

7. The plaintiff served notice of trial for a judge and jury. The second named defendant served a notice of motion to have the case

transferred to “the Personal Injuries list to be tried by a judge ……sitting alone.” Kearns J, following an ex tempore judgment, made

an order granting the relief sought, because the plaintiff had joined another cause of action with his claim for damages for “intentional

trespass to the person.” The learned judge ordered that the case be transferred to the non-jury list. The plaintiff has appealed,

claiming that he has the right to trial with a jury.

8. The issue depends on the effect of the provisions of the Courts Act, 1988, which abolished the general right to trial by jury for

actions for damages for personal injury. Only subsections (1) and (3) of section 1 of that Act are relevant to this appeal. They are,

so far as relevant:

“(1) Notwithstanding section 94 of the Courts of Justice Act, 1924 or any other provision made by or under statute, or any

rule of law, an action in the High Court—

(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty

(whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such

contract or any such provision),

(b) [not relevant]

(c) [not relevant]

or a question of fact or an issue arising in such an action, shall not be tried with a jury.

(2) [not relevant]

(3) 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.”

9. It was common case that subsection (3)(a) does not apply: this is not an action confined to a claim based on “false imprisonment

or intentional trespass to the person or both.” The argument on the appeal has been confined essentially to the correct

interpretation of subsection (3)(b). It is not necessary to decide any broader question. Mr Michael O’Donoghue, Senior Counsel, for

the second named defendant submits that the plaintiff’s action is caught by subsection (1) and that it does not come within the

exception provided by subsection (3). Ms Máire Whelan, Senior Counsel, for the plaintiff submits that the plaintiff’s action is one for

damages for” intentional trespass to the person” and, insofar as it includes a claim for damages for negligence against the second

named defendant is also one for “damages……for another cause of action in respect of the same act or omission.”

10. Since the argument has narrowed down to the question just described, it can be assumed, without so deciding, that the action is

one “claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty……” for the

purposes of subsection (1)(a). At first sight, this seems anomalous, since a claim for damages for “false imprisonment or intentional

trespass to the person…” would not appear to come within the scope of that subsection at all. However, the introductory and

governing words—“an action in the High Court”—appear, when interpreted literally, to apply to an action which merely includes a claim

for damages for negligence, even if it also includes claims of the other kind. This aspect of the section was not the principal object of

the argument on this appeal. It suffices to note this point and to proceed directly to subsection (3).

11. The contentions of the parties were limited to the first five lines of subsection (3)(b) as far as “omission.” Mr O’Donoghue rightly

disclaimed any reliance on the second part of that provision. He did not claim that it was “not reasonable to claim damages for ……

intentional trespass to the person……” Such a claim could not possibly have been justified. It would have prevented the plaintiff from

pursuing any claim for damages for sexual assault, which forms the essential basis for his claim.

12. Returning to the first part of the subsection, it is common case that the action is both an action for damages for “intentional

trespass to the person,” i.e., in simple terms for assault, and for damages for another cause of action. In substance, that other

cause of action is negligence.

13. Mr O’Donoghue argued that the damages were not, however, claimed “in respect of the same act or omission” as the damages in

respect of the assault. To consider this proposition, it is relevant to recall that the statement of claim, as summarised above,

commences by alleging that the first named defendant committed sexual assaults on the plaintiff; then alleges that the plaintiff

suffered personal injury by reason of those assaults and then that the second named defendant was vicariously liable for those

assaults. The personal injuries particularised in the statement of claim are alleged to have been suffered “as a consequence of the

matters complained of herein…” Mr O’Donoghue placed reliance on certain particulars of negligence alleged against the second named

defendant apparently going somewhat beyond a simple allegation of vicarious liability. For example, it is pleaded, as mentioned above,

that the second named defendant “failed to have in place procedures or measures appropriate for the regulation and supervisions of

[its] members…”

14. I do not think that any of these matters take this case outside the scope of subsection (3)(b). It is clear that the core of the

plaintiff’s claim is that he was sexually assaulted by the first named defendant. Everything alleged can be traced back to that key

allegation. Insofar as the claim is simply based on alleged vicarious liability, there is full correspondence between the damages alleged

to flow from the acts of the two defendants. However, the subsection allows a plaintiff, in certain cases, and provided he claims

damages as a result of one of the two specified causes of action, namely “false imprisonment or intentional trespass to the person,”

or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection

requires, however, that these two causes of action be linked by a claim that the damages arose “in respect of the same act or

omission.” The focus is on the damages and the relevant act or omission which causes them. The same act may give rise to a claim

under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute

negligence or trespass. The subsection does not require that the damages be identical. They may be “claimed in addition, or as an

alternative, to the other damages claimed…”

15. In the present case, the plaintiff’s claim is that he suffered personal injury as a result of the assaults committed by the first

named defendant. Any act alleged against the second named defendant is claimed to have led to the same damage. I am satisfied

that this claim comes within section 1, subsection (3)(b) of the Act of 1988. Therefore, the plaintiff is entitled to have his claim heard

by a judge sitting with a jury. I would allow the appeal and substitute an order dismissing the notice of motion of the second named

defendant.

16. Nothing in this judgment affects the normal discretion of the High Court to decide whether the different issues in the case are to

be tried separately or together, whether by the application of Order 18, rule 1 of the Rules of the Superior Courts or otherwise.