Supreme Court dismisses appeal upholding s.48A Statute of Limitations Act 1957 for sexual abuse victim.

THE SUPREME COURT

[Appeal No. 303/2011]

Murray J.

O’Donnell J.

Laffoy J.

BETWEEN:

DANA DOHERTY (A PERSON OF UNSOUND MIND NOT SO FOUND BY INQUISITION) SUING BY HER NEXT FRIEND FINTAN

GALLAGHER

RESPONDENT/PLAINTIFF

V. MICHAEL QUIGLEY

APPELLANT/DEFENDANT

JUDGMENT of Mr. Justice John Murray delivered the 24th day of June, 2015

1. In these proceedings the above named plaintiff, who is the respondent in this appeal, was awarded €400,000 damages by the High

Court for sexual assault and unlawful sexual intercourse with her by the appellant, which persisted over many years commencing when

the respondent was 12 years old. The respondent was born in April, 1970, and the sexual assault and abuse commenced in 1982. It is

common case that the last assault occurred in 1989. So far as these proceedings are concerned, a letter of claim was issued by the

plaintiff in September, 2006, and she received authorisations from the Personal Injuries Assessment Board (PIAB) on 22nd February,

2007. The plenary summons initiating these proceedings was issued on 16th September, 2007.

2. It is also common case that the respondent’s claim against the appellant is statute barred by virtue of the provisions of the

Statute of Limitations Act, 1957, unless the respondent was entitled, as the High Court so held, to benefit from the provisions of

s.48A of that Act, as inserted by s.2 of the Statute of Limitations Amendment Act, 2000, as being a person whose ability to bring

proceedings was substantially impaired by reason of the sexual abuse committed on her by the appellant.

3. The appellant appealed against the decision of the High Court on the grounds that the learned trial judge erred in fact and in law in

holding that the respondent was entitled to rely on s.48A of the Act of 2000, by reason of which these proceedings were not statute

barred. This Court dismissed the appeal at the conclusion of the hearing in July, 2014, having stated that it was satisfied that the

learned High Court judge’s decision was correct in law and justified by the evidence which was before him. This judgment contains the

detailed reasons for the Court’s dismissal of the appellant’s appeal.

4. In this appeal, the appellant did not raise any issue concerning the liability, as such, of the appellant to the respondent for the

sexual assault and abuse committed on her, nor the quantum of damages. The sole issue raised by the appellant in the appeal is

whether, having regard to the facts of the case, the learned trial judge was correct in law in holding that the provisions of s.48A of

the Statute of Limitations Act, 1957, as amended, applied to the claim as brought by the respondent and, therefore, the action was

not statute barred. The core contention of the appellant in the appeal is that the entire of the plaintiff’s claim was statute barred by

virtue of the provisions of the Statute of Limitations Act, 1957, as amended.

The Legal Issue

5. It is common case that the respondent’s civil claim for damages against the defendant would, ordinarily, be statute barred by

virtue of the provisions of the Statute of Limitations Act, 1957, as amended, because the respondent brought her proceedings well

outside the limited statutory period for bringing such a claim.

However, the respondent had relied, in answer to any plea that her claim was statute barred by the effluxion of time, on s.48A of the

Act of 1957, which had been inserted in that Act by s.2 of the Statute of Limitations (Amendment) Act, 2000. That inserted a new

provision providing for an exception to the normal limitation period on the grounds of the disability of persons for the purpose of

bringing certain actions arising out of acts of sexual abuse. The relevant provisions of that section are as follows:

“2. The Statute of Limitations, 1957, is hereby amended by the insertion of the following section after section 48:

48A. (1) A person shall, for the purpose of bringing an action –

(a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she

had not yet reached full age, or

(b) against a person (other than the person who committed that act), claiming damages for negligence or breach

of duty where the damages claimed consist of or include damages in respect of personal injuries caused by such

act,

be under a disability while he or she is suffering from any psychological injury that -

(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned

act, and

(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action

is substantially impaired.”

Submissions of the Appellant

6. Central to the appellant’s appeal was his contention that the learned High Court judge erred in fact and in law in holding that

s.48(A) of the 2000 Act applied, and specifically as regards his conclusion that the will or ability of the respondent to bring

proceedings “was so impaired as to prevent her bringing a civil claim”.

7. It was submitted that the learned trial judge, in his analysis of this issue, ignored such matters as the fact that the respondent

had reported the abuse to a local G.P. in 1990, had confronted the appellant himself on two occasions between 1990 and 1992, and

had made a formal complaint to the gardaí in August, 1993, which led to the questioning of the appellant. Also, it was submitted she

was the principal prosecution witness in the prosecution of the appellant in the year 2000 and in the year 2007. She had been

examined on behalf of the D.P.P. on two occasions in 1998 and 2001 by Dr. Steven Clarke, who compiled reports. She had issued a

press release after the second prosecution failed stating that she would prosecute a civil claim against her abuser. It was also

submitted that the learned trial judge erred in fact in accepting the conclusions of Professor Browne, particularly when Dr. Clarke, on

behalf of the D.P.P., had prepared a report in early 1998 in which he concluded, inter alia, that she was controlled and insightful, but

at times could go into a temporary state of dissociation and fear, and suffering from intrusive memories. It is alleged that these

reports, being contemporary documents in 1998, should have been relied upon, rather than Professor Browne’s assessment in and

around the time of the trial. It is not entirely clear as to whether the reports of Dr. Clarke were received in evidence in the High

Court, although the contents and conclusions were put to Professor Browne in cross-examination. It was also submitted that the

learned trial judge should not have found as he did, since Professor Browne had admitted that the respondent did not come within the

terms of s.48(A).

8. Finally, it was submitted that the trial judge was wrong in law in applying a subjective test for the purposes of determining whether

the respondent’s ability to bring proceedings had been substantially impaired; that he should have applied an objective test, and on

any objective test she was not so impaired, during at least a substantial part of her life between 1998 and the initiation of these

proceedings in 2007.

9. In support of this submission, the appellant relied upon Whitely v. Minister for Defence [1998] 4 I.R. 442, and Bolger v. O’Brian 2

I.R. [1999] 431, which concerned the interpretation of s.2 of the Statute of Limitations (Amendment) Act, 1991.

Submissions of the Respondent

10. The essential submissions of the respondent can be succinctly summarised. First of all, and primarily, it is submitted that the

learned trial judge, in coming to a conclusion that the respondent was substantially impaired in her capacity to bring proceedings, was

fully entitled to do so on the basis of the evidence given at the trial, and which he concluded was credible evidence. In particular, the

learned trial judge was entitled to accept and rely upon the evidence of Professor Browne as regards the nature and effects of the

psychological injury suffered by the respondent. In this respect, the appellant relied on the decision of this Court in Hay v. O’Grady

[1992] I.R. 210. It was also submitted that insofar as the learned trial judge made a subjective assessment of the degree of

impairment of the respondent’s ability to bring proceedings prior to 2007, he was correct in doing so.

Background Facts Concerning the Respondent

11. While the appellant has not put in issue in the appeal the findings of fact which led to the trial judge concluding that the

respondent had been sexually assaulted and abused by the appellant, the appellant does take issue with certain of the inferences or

conclusions of the trial judge regarding facts relevant for the purposes of his determination that the provisions of s.48A of the Act of

1957 applied to the respondent’s claim. (Similarly, much of the evidence concerning the respondent’s career and course of conduct

subsequent to the period of sexual assault and abuse up to the commencement of these proceedings are largely not in issue in this

appeal, although again the appellant argues they give rise to inferences or conclusions from which the trial judge ought to have

concluded that s.48A did not apply to the respondent’s claim).

12. For the purpose of putting the issue of law in this appeal in context, and which was necessarily also the context in which the

learned trial judge decided this matter, it is necessary to refer to the facts generally relating to the series of assaults and sexual

abuse which the respondent endured over many years at the hands of the appellant. This can best be done by referring to the

summary of the respondent’s evidence in the High Court, as set out in the judgment of the High Court, as well as extracts from the

particular findings of fact in this regard by the trial judge. The purpose is to set the factual context in which the trial judge came to

consider the medical evidence and determine whether s.48A applied to the respondent’s claim, and in particular whether she is a

person whose ability to bring proceedings was substantially impaired by reason of the assault and abuse committed by the appellant.

The appellant, of course, hotly disputed the allegations of the respondent in the High Court, but as will be seen from the relevant

extracts, the learned High Court judge accepted the account given by the respondent as credible, rejecting the evidence of the

appellant in this respect, and these finding of fact have not been put in issue in the appeal.

13. The learned High Court judge recorded the plaintiff’s account in the following terms:

“a. the plaintiff’s evidence of abuse 1982-1989

The plaintiff was born on the 30th April, 1970 and she grew up in Letterkenny as one of a family of eight children. She

and her sisters were keen Irish dancers from a very early age. The defendant was a very well known teacher of Irish

dancing in the locality and he was very highly regarded. The events with which this case is concerned began when the

plaintiff was twelve, but she was a pupil of the defendant for a number of years before that. She went to classes that

he held in her home town of Letterkenny and remembered going to those classes from age six and upwards. There were

other pupils at the classes and the plaintiff recalled that the defendant was a very physical and tactile person who was

demonstrative and outgoing and apparently affectionate. She did not make a complaint that there was anything

offensive about this conduct but it obviously took on a somewhat sinister aspect when viewed in retrospect in light of

her complaints, assuming that those complaints are indeed justified. During this early period before the plaintiff was

aged twelve years, she was thus in the care of the defendant as a teacher on a fairly frequent and regular basis when

she took her lessons with the other children of her age in the classes in Letterkenny. The plaintiff remembered in

particular that the defendant would ask the children to “come and give Mickey a kiss” before they left the class. But she

emphasised that that was done quite openly and in the presence of parents and nothing was thought of it at the time.

The plaintiff described how from the age of twelve until she was nineteen there was a gradual development of offensive

sexual intimacy by the defendant in which he exploited the relationship of teacher and pupil as between her and him. It

would nowadays be described as a process of grooming. She specified incidents that she recalled but she also said that

sexual abuse was actually more general and was not confined to the specific episodes.

The first instance she described was in August 1982. The plaintiff was attending a class given by the defendant at the

Commercial Centre in Letterkenny. He had arranged for another teacher named Peader Matthews who was expert in one

aspect of Irish dancing to assess his pupils and that included the plaintiff as one of his star pupils. When the assessment

had taken place the plaintiff was upstairs in the Centre and the defendant took her onto his knee and stroked the area of

her breasts and spoke about how her body was developing. She was unhappy and uncomfortable about that but she was

reassured when a few days later she met the defendant’s wife and Mrs. Quigley said something about the plaintiff

growing up or developing and she plaintiff took this to be a sort of reference back to her conversation with Mr. Quigley

at the Commercial Centre. In the result the plaintiff was reassured as to the propriety of the incident that had made her

uncomfortable. The defendant and his wife denied that any such incident occurred with either of them. Mr. Quigley

described the arrangements in the upstairs part of the Commercial Centre, the location specified by the plaintiff, and

said that it was practically impossible for the incident to have occurred as the plaintiff described because there was no

unoccupied and unlocked room available in which the episode as described could have taken place. As for Mrs. Quigley,

she did not recall any conversation about the child’s development such as the plaintiff had said happened and went

further and said it did not happen.

The plaintiff recalled an occasion in December 1982 that happened on the way back from Ramelton in Co. Donegal. She

attended classes in Letterkenny on a regular basis and they were always given by Mr. Quigley. But he was in great

demand and drove to other parts of the county where he gave lessons as well and it was customary for him to bring the

plaintiff and other pupils – girls – to these additional classes. One of these was Ramelton where he gave a class on

Friday nights. He drove there after he had taught at Letterkenny. The plaintiff said she recalled this occasion because at

the time her sister Catriona was usually in the car as well when they went to Ramelton but not his time because it was

her birthday and the plaintiff was on her own with the defendant. When the class at Ramelton finished they were on

their way home. She said that the defendant turned off the road and kissed her and groped her upper body. The

defendant flatly denies that anything of this kind happened.

The plaintiff described an event that occurred when she was twelve or thirteen years old. This happened again at a time

when she was in the defendant’s car travelling from an Irish dancing lesson. The incident happened at a place named

Windy Hall, near Glencar in Co. Donegal. Again the car was stopped and the defendant engaged in lewd conversation. He

asked the plaintiff had she ever seen a grown man’s penis. She was frightened and reacted and he backed off. The

plaintiff did not suggest that he showed her his penis on this occasion but that he asked about it. She said that she

wrote something into her diary that she was keeping at the time about this and one of her sisters saw it and the plaintiff

was afraid as a result that her parents might hear about it and she destroyed the page. She mentioned this to Mr.

Quigley when they next met and he, according to her account, did not take the matter seriously but merely said that

she should or could say that she had a crush on him and that would account for the entry.

Another incident is alleged to have taken place on a Friday night following the class in Ramelton, not on the journey from

Ramelton to Letterkenny but later that night after the Late Late Show, when the defendant was driving the plaintiff from

his home to her’s. The defendant drove off the road to a quarry area and stopped the car. He reclined the plaintiff’s

passenger seat, opened her jeans and groped her pubic hair. She said that on the way back from there they passed a

public house where she noticed her father’s car outside and, when she got home, she mentioned to her mother that she

had seen her father’s car. Her mother asked why they had been going that way which would not have been the normal

direct route and the plaintiff said that they had to do an extra message and thus covered up the defendant’s diversion

to the quarry. The defendant denied this outright. A significant issue arose in relation to the lessons in Ramelton and

more particularly the journey home from there. The plaintiff described how it would often happen on a Friday night that

they would set off for Ramelton – she and the defendant – in the defendant’s car. After the lesson had taken place they

would return to Letterkenny. She said that it was quite common for the defendant to bring her to his home where he

would watch the Late Late show and then he would leave for her home after the show. Mr. Quigley and his wife denied

that this had ever happened. They said that he would drive the plaintiff home first and then come home and watch the

Late Late show on a Friday night. They said that it would not have been appropriate nor would it have been accepted by

the Doherty parents that their daughter would be out until after the Late Late show on a Friday night. It followed,

therefore, on the Quigley’s account that the incidents described by the plaintiff that took place on the Ramelton Friday

nights could not have taken place as she described.

The next occasion of abuse as described by the plaintiff was when she was babysitting the defendant’s daughter Alison.

She said that when the Quigley’s came home and went to bed, Mr. Quigley came into the small front bedroom that she

was occupying and engaged in sexual activity. She specified an occasion when she was about thirteen years of age when

he did this – he came into the bedroom and took her hand and put it on his penis. She said that he came into her room

on a number of occasions and gradually the sexual activity increased to the point where he would put his fingers in her

vagina. Then he would return to his own bedroom. On some occasions a niece of Mrs. Quigley, Caroline McKelvey – who

also gave evidence in the case – would stay over at the same time as the plaintiff. The plaintiff and Caroline slept in the

double bed in the front room. On one such occasion the defendant came into the room at a time when the girls were

sleeping and he groped the plaintiff under the blankets feeling about her vagina and she described how he appeared to

be enjoying the discomfort that she was experiencing because Caroline was asleep beside her in bed.

According to the plaintiff, the level of sexual activity continued increased. When she was around fifteen years or sixteen

years of age, on a summer morning when Mrs. Quigley, a national teacher by occupation, was doing a course away from

home and Alison Quigley was in the garden playing, Mr. Quigley locked the back door and took the plaintiff upstairs and

engaged in sexual activity that led to him masturbating and ejaculating over the plaintiff whom he then told to have a

shower and clean up. This again is totally rejected by the Quigley’s. Alison Quigley gave evidence that it did not happen

and could not have happened. Mr. and Mrs. Quigley said the same. They said that there was no way that Mr. Quigley

would lock the back door in any circumstances when Alison was outside. Alison was a bad asthmatic and might have

suffered an attack at any time and therefore she needed to be under constant supervision. Therefore this incident

simply could not have happened because there was not way that Mr. Quigley would or could have locked the back door

in the circumstances.

When the plaintiff was sixteen, she said, she was in the garage at the Quigley home and was having a dancing lesson

from the defendant. There were wooden planks on the ground. Mr. Quigley locked the connecting door between garage

and kitchen and felt around her vagina and he also removed her underpants and put them in his pocket. This left the

plaintiff wearing a short dancing skirt and no underwear. Mrs. Quigley came on the scene and criticised the way she was

dancing, which was because the plaintiff was afraid that Mrs. Quigley would see that she had nothing on underneath her

skirt and so was dancing in a very constrained manner. She said that the defendant was getting pleasure out of

witnessing her discomfort in the presence of his wife. This again was the subject of bitter dispute. The Quigley’s said

that the door between garage and kitchen was never locked; indeed, they seemed to suggest that there was not even a

key for it. Mrs. Quigley said that she had never expressed criticism of the plaintiff’s dancing and it is right to say that

that would have been the province of Mr. Quigley and it would not have been Mrs. Quigley’s function to do so. That does

not exclude the possibility that on some occasion a lesser expert might express a view, particularly if that was

somebody like Mrs. Quigley who was also very familiar with Irish dancing even if not as expert as her husband.

The plaintiff said that the abuse progressed to a point where Mr. Quigley got her to give him oral sex, which soon

became a regular occurrence. He would stop the car and bring her head to his penis for oral sex. He could sometimes

behave roughly during these encounters. He sometimes forced her head. Again Mr. Quigley flatly denied the plaintiff’s

evidence.

She said that he abused her every time he was in contact with her, that it became constant, once twice or three times

a week, that oral sex became a regular thing at a usual place in the woods. All this continued to take place until 1989,

when the plaintiff finished school and went to University in Coleraine.

The plaintiff said that her feelings at the time for the defendant were complicated and confused and that a considerable

element of conflicted emotion continues to be part of her life. He was her teacher. He was in loco parentis. He was

expert in Irish dancing and he was widely respected in that field. She was talented and ambitious. She wanted to do well

in this field and he was the means by which she could do it. She was in awe of him and she was subservient and she

trusted him implicitly. She was emotionally involved with him. When he interfered with her, she became sexually

aroused. She felt guilty about this and blamed herself. On her evidence, the defendant encouraged her in this belief and

manipulated and exploited her immature anxiety. He preyed on it. He used her religious scruples to reinforce in her the

feeling that she was unable to control her sexual urges. On the plaintiff’s account, the defendant was a cunning abuser

who exploited the opportunity he had as teacher of Irish dancing with a pupil who had exceptional ability. This gave him

an opportunity to be with her for long periods of time in journeys to different parts of Donegal and elsewhere and he

encouraged or permitted her to become emotionally attached and even dependent on him. He deviously twisted and

exploited her concerns about her physical development, her emotional attachment and her moral compass in order to

satisfy his own sexual desires.

The plaintiff described how she at one time wanted to follow the example of a notorious case in the world of Irish

dancing, in which a teacher and his pupil developed a sexual relationship and lived a new life together away from his wife

and her parents. The plaintiff discussed that with the defendant, who brushed it off.

The plaintiff said that at times she felt deeply uncomfortable and upset about what was going on. She was confused in

her life at school and at home and wanted to talk to somebody but that did not work out. She said that when she was

aged fifteen she told her parents that she was giving up Irish dancing. They did not know anything about the abuse that

was going on and they were very angry. The plaintiff, who was a good student at school, said that she deliberately failed

examinations in December, 1985 and her real rationale for this was that she would thereby be able to give up Irish

dancing. Her parents would think that the dancing was interfering with her studies and would more easily consent to her

giving it up so that she could concentrate on school work. That, according to the plaintiff’s evidence, is what she was

thinking at the time. Mr. and Mrs. Quigley came to the Doherty home and discussed the matter and were very keen that

Dana should continue to do her Irish dancing. The plaintiff said that Mr. Quigley came and spoke to her in her bedroom

and that he cried and said that what was going on would stop. The Quigley’s agreed that they had visited the Doherty’s

on this occasion but denied that Mr. Quigley went to the plaintiff’s bedroom and he denied that he promised as the

plaintiff testified or that he cried on the occasion.”

14. The learned trial judge then dealt with contacts between the respondent and the appellant post-1989, including making reference

to the career of the respondent in the immediate aftermath of the years of abuse. He also went on to outline the general factual

circumstances concerning her complaints to the gardaí and the garda investigation, as well as the circumstances surrounding the

ensuing criminal trials. It was against all of this factual backdrop that the learned trial judge had to consider whether, on the

evidence, including in particular the medical evidence, the ability of the respondent to bring the civil proceedings had been

substantially impaired within the meaning of s.48A. Counsel for the appellant also relied on important elements of this factual

background, as demonstrating objectively that there were periods or a time at which the plaintiff could not be considered to have

been substantially impaired from bringing such a claim. The learned trial judge’s summary of these elements of the case is set out in

the following paragraphs:

“b. plaintiff & defendant post 1989

The plaintiff went on to third level education at the New University of Ulster at Coleraine where she graduated in 1992

with a degree in Irish studies. During her time as a university student she became increasingly concerned about her

experiences with the defendant. She attended Dr. Maria Murray in Letterkenny and discussed the matter with her over

six sessions. During this time the plaintiff became concerned that what happened to her might well be happening to

other children at the hands of the defendant. She arranged to meet him and this happened in Derry in early 1991. The

plaintiff wanted reassurance from the defendant that he would do something about his condition. He did not agree that

he needed any treatment or counselling. She said or accused that he was a paedophile and that he had sexually

interfered with her. He denied that he had sexually abused her. The plaintiff wanted the defendant to undertake a course

of counselling and he agreed to do so. He further agreed that he would phone Dr. Maria Murray in Letterkenny to

confirm to her that he was indeed attending the counselling that he had discussed with the plaintiff. It is agreed

between the plaintiff and the defendant that this conversation took place and that following the conversation Mr. Quigley

did indeed telephone Dr. Murray and give the confirmation that had been requested by Ms. Doherty.

Ms. Doherty said that Mr. Quigley told her that he had been attending a priest called Fr. Stephen in Derry and he

brought her to meet him. They travelled together to see Fr. Stephen and he had a separate conversation with the

defendant and plaintiff. The defendant gave evidence that the meeting with Fr. Stephen happened not by special

arrangement between him and the plaintiff but rather by chance. His account was that the plaintiff was looking for a lift

home and called into the Derry Journal offices, where he worked, and it was Mr. Quigley’s normal practice to call to Fr.

Stephen for confession on a Friday evening, which this occasion was. The result was that he went to confession with Fr.

Stephen and there was some casual further conversation between Ms. Doherty and Fr. Stephen. The difference is

whether the occasion was pre-arranged and specifically for the purpose of bringing Ms. Doherty to Fr. Stephen for the

purpose of reassurance or otherwise or whether it was merely a relatively fortuitous encounter brought about by the

fact that Ms. Doherty wanted a lift from Derry and it was a Friday evening when it was Mr. Quigley’s usual practice to

go to confession with Fr. Stephen on his way home on a Friday evening.

Whatever the particular arrangements whereby it happened, Ms. Doherty is correct about the visit having taken place to

Fr. Stephen. Mr. Quigley agrees that he discussed with Fr. Stephen the fact that Ms. Quigley was making allegations of

sexual abuse against him. Mr. Quigley agreed to phone Dr. Murray to confirm that he was going to attend a course that

would be suitable for a person who had a history of sexual interference with a child and he followed up on that

agreement by phoning Dr. Murray with the confirmation. The fact that Mr. Quigley did not attend any such course does

not detract from the significance of his agreement to doing so and to confirm that to an independent outsider.

Another incident in 1992 followed a tragedy in the Doherty family when one of the plaintiff’s siblings took his own life. The

defendant and his wife and daughter called to the Doherty home to sympathise but the plaintiff would not permit the

defendant to enter the house and only his wife and daughter went in.

c. the Garda investigation

Between 1992 and 1994 the plaintiff was at home in Letterkenny doing casual work as a substitute teacher in local

secondary schools. During this time she received counselling from a Mr. Seamus Gordon extending over a period of

eighteen months. He and a social worker persuaded the plaintiff to report her experiences at the hands of the

defendant. On the 29th August, 1993, the plaintiff made a statement of complaint to Garda Sarah Hargadon of

Letterkenny in which she related the sexual abuse that she alleged she was subjected to by the defendant in the

relevant period as disclosed above. The Garda visited the defendant’s home and on the 31st August, 1993 Mr. Quigley

attended at the Garda Station where he answered questions put to him by the Garda after the usual caution. The

questions and answers were recorded in writing and Sgt. Hargadon, who is now retired, produced a copy of the written

record. This account given by Mr. Quigley is of considerable importance in the case and I will consider it later in this

judgment.

Garda Hargadon submitted the file to the Director of Public Prosecutions but he decided that there would not be a

prosecution. The plaintiff was devastated by this decision, as she testified. Garda Hargadon was also unhappy with it and

made representations for the file to be re-examined. Meanwhile, in January 1994, the plaintiff left for the United States

of America where she remained until 1997. During this time she met and married her husband who was a teacher of

Irish dancing. She herself acquired a qualification to teach Irish dancing and did so with her husband in the United States.

In 1995, she was at home and went to Lough Derg on a pilgrimage with her sister where she said she spoke to a priest

about the abuse that the defendant had perpetrated on her. In 1997, she returned to Ireland from the US. She worked

from 1997 until 2000 in the Customer Care section of Bank of Ireland at Shannon, Co. Clare.

On the 12th July, 1998, the plaintiff made a second statement to Garda Hargadon, who was still pursuing the question of

a prosecution of the defendant. A child protection officer, Mr Mulligan and the social worker, Mr Gordon, who had

previously counselled the plaintiff, made contact to encourage her to make another statement. Sgt. Hargadon described

how extremely upset the plaintiff was at the time when she made this second statement. The plaintiff confirmed this.

She said that she had observed Michael Quigley at a dance competition in Ennis and became very apprehensive when

she saw him with other children that he would be doing the same thing with one of them. There is no doubt according to

the evidence of the Sergeant that the plaintiff was extremely emotionally upset when she made this statement. When

the Sergeant resubmitted the file with the new statement the Director decided that there should be a prosecution.

d. Criminal Trials 2000 & 2007

The case came on for hearing at Letterkenny Circuit Court in June 2000 and the plaintiff gave evidence. The result was

a disagreement by the jury and a re-trial was ordered. The defendant obtained an order permitting him to bring judicial

review proceedings to stop the re-trial. The High Court delivered judgment in 2003 rejecting Mr. Quigley’s application. He

then appealed to the Supreme Court and that held the trial up for another three years. The Supreme Court delivered

judgment in October, 2006. There followed a re-trial at Letterkenny Circuit Criminal Court on the 6th February, 2007,

which also ended in a disagreement by the jury. The criminal matter concluded on the 24th August, 2007, when the

Director entered a nolle prosequi in respect of the charges.

Between the two abortive trials - June 2000 to February 2007, the plaintiff’s life proceeded. She qualified as a teacher

and got a job in Ennis, Co. Clare. In 2001 her marriage broke up. She undertook counselling after that for approximately

one year. In 2002 she was in Letterkenny and spent the summer of 2003 in Ennis. In the years 2004/5 the plaintiff went

on a round the world trip and it was during this period in April 2004 that she met Fintan Gallagher, her partner, and she

spent the summer of that year in Letterkenny. They arrived home in February or March in the year 2005. In 2005 she

got a job as a teacher near Letterkenny which is the position she still holds.

3. The Civil Proceedings

In March 2006, the plaintiff consulted a solicitor, who obtained authorisation from PIAB for a personal injuries claim by

authorisation of the 22nd February, 2007. On the 13th December, 2007, proceedings were instituted by way of personal

injuries summons in the name of Dana Doherty a person of unsound mind not so found. The statement of claim was

delivered on the 12th February, 2008. The plaintiff saw Prof. Ivor Browne in October and November 2008 and he

diagnosed severe post traumatic stress disorder and marked personality dissociation with the condition of frozen present

which I will discuss in more detail below.

The plaintiff said that she had had counselling again from Mr. Seamus Gordon during the last six months.”

Conclusion on the Evidence of the Respondent

15. The findings of fact of the learned High Court judge, on foot of which he decided to award damages to the respondent for the

assaults and sexual abuse committed on her by the appellant, have not, as indicated at the outset, been put in issue in this appeal.

Therefore, it has not been necessary to refer to the witnesses called by the respondent in support of her account, nor the evidence

of the appellant, and the witnesses which he called in support contesting her account. The learned trial judge concluded:

“I found the plaintiff’s evidence to be coherent, consistent and entirely credible. The account she gave was detailed and

candid. She freely confessed to the confused feelings she had towards the defendant and what he was doing to her. She

did not rush to prosecute him and only made a statement to Garda Hargadon when persuaded to do so.”

He also gave his reasons as to why he did not find the appellant a credible witness and why the witnesses called in support of the

appellant’s account was not such as to undermine the credibility of the respondent. He concluded this aspect of his judgment in the

following terms:

“My conclusion accordingly is that the plaintiff has established on the balance of probability that the defendant

committed acts of sexual abuse against her on the particular occasions and also in the general circumstances described

above as claimed.”

The Statutory Interpretation Issue

16. It was in the context of those findings of fact and the medical evidence before him, to which the learned trial judge turned in

order to consider the legal issue arising concerning the application of s.48A of the Act of 1957, and in particular as to whether the

respondent could be considered to be under a disability for the purposes of that section. If so, then the claim was not statute barred.

17. Section 48A applies in the first instance to a person who brings an action founded on tort in respect of an act of sexual abuse

committed against him or her at a time when he or she had not reached full age. That the respondent falls within that category of

person is not in issue. Accordingly, the plaintiff is deemed by s.48A to be under a disability for the purposes of the Statute of

Limitations Act, but only while:

(a) she is suffering from any psychological injury;

(b) caused, in whole or in part, by the acts of sexual abuse, and

(c) the psychological injury is of such significance that her will, or her ability to make a reasoned decision, to bring such

action is “substantially impaired”.

18. Whether a plaintiff is entitled to rely on s.48A is essentially a question of fact to be determined by the trial judge.

19. In this case, the learned trial judge determined that the respondent was indeed suffering from a psychological injury caused by

the sexual abuse which she endured over many years, as a result of which her ability to bring proceedings was “substantially

impaired”. In reaching these conclusions he relied principally on the medical evidence. Of course, the medical evidence was given

against the backdrop of the history of the sexual abuse endured by the respondent as described in her evidence before the trial

judge.

Medical Evidence

20. Having regard to the issues raised by the appellant, and in particular the contention that the learned trial judge was not entitled

to come to the conclusions which he did on the issue of the application of s.48A, it is necessary to refer to at least some of the

evidence given by the only medical expert called at the hearing (even though the appellant relied on an earlier medical reports by Dr.

Stephen Clarke), Dr. Ivor Browne, as recited by the trial judge in his judgment, and also the trial judge’s own findings with regard to

that evidence.

21. First of all, the following comprises some extracts from Professor Browne’s evidence, as outlined by the trial judge in his resume of

evidence called on behalf of the respondent:

“Prof. Browne is a consultant psychiatrist who for the last 30 years has practised psychotherapy focusing on trauma of

various kinds. He consulted with Ms. Doherty on the 8th October and the 26th November 2008. In his report dated the

17th April 2009, he said that he found Ms. Doherty to be a pleasant person who was clearly intelligent and very willing to

cooperate in any way that she could. He expressed the opinion that the manner in which Mr. Quigley manipulated Ms.

Doherty was a subtle form of brain washing which led to a gradual de-patterning of her entire personality. Prof. Browne

said he found Ms. Doherty to be vulnerable and very insecure. She continued to suffer from severe flashbacks,

particularly when faced with any form of sexual intimacy and she somehow tended to blame herself for the abuse that

took place at the hands of Mr. Quigley. Prof. Browne noted that Ms. Doherty manifested highly obsessive behaviour,

making lists of what had to be done every half hour. He also noted that much of her behaviour was contradictory; for

instance, she would at times be cold towards her partner, Mr. Gallagher, refusing his help and asserting her

independence, but she could quickly revert to crying and seeming childlike and vulnerable.

Prof. Browne said in his report that there was evidence of marked personality dissociation in Ms. Doherty. He observed

that at times she would behave like an adult but then suddenly become like a small child and even refer to herself in the

third person. Prof. Browne said that Ms. Doherty’s symptoms were typical of a person who had been subjected to years

of repetitive sexual abuse. His diagnosis of Ms. Doherty was that she suffered from “full blown” Post Traumatic Stress

Disorder (PTSD), a condition by which she remained seriously incapacitated. He said that due to the subtle and insidious

conditioning to which she was subjected during her adolescence she lost volition and control over her personality. His

report went on to state as follows:-

“Furthermore it is essential to understand that the only way that she could survive this continuous abuse was to

dissociate and to freeze the experience so that she was unable to feel the emotion which would have been

appropriate to such experiences at the time they were happening. Thus Dana like so many others in this situation

was observing what was going on as if it was not really happening to her. Evidence of this is to be seen in the ‘out

of body’ and other depersonalised behaviours which she describes in her statements.

This is the phenomenon which I have termed ‘unexperienced experience’ and which was referred to by the great

French psychiatrist, Pierre Janet, over a 100 years ago as ‘unassimilated happenings’. When a person is subjected

to a serious trauma, an immediate, non conscious, biological mechanism may be invoked which will suspend the

experience, either partly or completely, thus blocking further integration into long term memory. It is now as if a

part of the external world is within the person but not part of them. This internalised ‘stressor’ now exists outside

time, in a potentially unstable state. I have referred to this as the ‘frozen present’, which may well be held in that

state for years or even a lifetime.”

In relation to Ms. Doherty’s delay in bringing her civil claim, Prof. Browne said that in cases such as hers a person is so

incapacitated and frozen that she is unable to take any effective action at the time. He said that this had been even

more difficult than usual in Ms. Doherty’s situation because of the failed legal actions brought by the State and the long

delays extending over years which further devastated her personality. Prof. Browne observed that even now Ms.

Doherty had only been capable of proceeding with a civil action with the support and help of her partner taking the case

on her behalf. Prof. Browne expressed the view that what finally led to Ms. Doherty deciding to take the action against

Mr. Quigley – which he described as a “difficult decision” – was the realisation that other girls might be at risk.

In his oral testimony, Prof. Browne expanded on his report. He said that a sudden sexual interference could lead to great

shock but in the case of Ms. Doherty the sexual intrusion was gradual so the shock element would be less. Nonetheless,

as each episode occurred, it did lead to a feeling of shock, going on eventually to the whole question of “freezing” the

experience. In these types of trauma cases Prof. Browne said he had noticed a pattern as to the process of freezing.

When a traumatic event happens a raw recording of it is made but the person resists it becoming part of her long term

memory. The recording is stored in the brain and when it is later triggered, when something activates it, it starts from

where it left off. In other words, the recording has yet to become a memory and starts to play.

…

Prof. Browne’s overall clinical diagnosis was that Ms. Doherty suffered from PTSD at the severe end of the spectrum. As

regards how this has affected her daily life up to and including the present, Prof. Browne expressed the view that Ms.

Doherty can go about her daily business and do normal things for a large amount of time but her condition is there

continuously and can be activated at any moment, at which point she will show all the disorganisation and emotion of

the traumatic experience. He described it like there were two dimensions to the one person. Both of these dimensions

are there at any given time, although not always apparent. Prof. Browne took the view that having seen Ms. Doherty

give evidence in these proceedings, the core of her dissociation and her PTSD were still active and had not been

resolved.

Prof. Brown accepted that a person suffering from this condition may act normally and enjoy periods of lucidity and

intellectual clarity but he said the other dimension was always there and could activate at any moment. So in the

context of bringing these proceedings, Ms. Doherty could have been able to list the facts quite clearly in her PIAB claim

application or through instructions to her legal representatives but it did not follow therefore that the other dimension of

her personality had gone away. In cross-examination it was put to Prof. Browne that it could not be said that from the

early 1990s to 2007, adopting the language of s. 48A of the Statute of Limitations Act 1957, Ms. Doherty was

“substantially impaired” throughout that period, considering that she participated in two criminal proceedings, dealt with

Mr. Quigley, met Mrs. Quigley, went travelling and generally carried on normal activities. Prof. Browne expressed

dissatisfaction with the terms of s. 48A, which he thought was simplistic in its assumptions and did not cater sufficiently

for sophisticated conditions such as dissociation. He said that when Ms. Doherty was in a rational frame, she was

capable and was not impaired in bringing the action. But there were serious errors in her personality that were impaired

if activated, as was evident from her testimony. Prof. Browne expressed the view that he could not answer the question

with a simple “yes” or “no” as to whether her will was impaired across the board – it was not as simple as that. In the

rational, ordinary part of Ms. Doherty’s personality, she was capable of making those decisions but at any time she could

move into the other part of her personality and be completely incapacitated.

It was put to Prof. Browne that Ms. Doherty’s behaviour did not manifest any constricted normal life insofar as she

moved back to Letterkenny some time ago, she met with Mr. Quigley, she went back to dancing and to teaching. This, it

was suggested, ran contrary to what he said was a feature of dissociation, namely a tendency to adopt defensive

manoeuvres and avoid whole areas of life to avoid confronting anything that would remind a person of her traumatic

experiences. Prof. Browne explained that in his opinion a person can make efforts to normalise her life but this can be

very difficult and can come at a cost. He pointed out that there was also a loving side – namely the support of her

friends and family – that would naturally draw Ms. Doherty back to Letterkenny. He said that tendencies of avoidance

can co-exist with efforts to normalise life.

Prof. Browne said that it was clear that Ms. Doherty was finding it extremely difficult to make her complaint regarding

the abuse and it took her a long time and only after psychotherapy to make her first statement to the police, and she

had said that the only reason she did so was in order to protect other children who might be harmed. Using the

cognitive part of her personality she would have been capable of bringing this action earlier, but not in any easy way and

it was under great strain that she eventually did so. Prof. Browne said that taking her personality as a whole there was

considerable impairment but she had managed to override that enough to be able to take this case eventually. She was

acting under extreme difficulty, however, and her alternative personality was tending to interfere constantly with her

ability to do so. Prof. Browne told the Court that regardless of what Ms. Doherty might have said in her press release

following the collapse of the criminal proceedings, when she came to see him she was very exhausted by the legal ordeal

and could not go on without help. He said he thought that this was the reason why Ms. Doherty was suing through her

partner in the within proceedings. Prof. Browne expressed the view that Ms. Doherty brought these proceedings with

great difficulty and only because of her fear that other children were being abused.”

22. It was in the light of the foregoing evidence that the learned trial judge decided that s.48A applied to the circumstances of the

respondent, and accordingly that her claim was not statute barred.

Decision

23. I will first of all address a subsidiary point raised on behalf of the appellant. The appellant points out that these proceedings were

initiated on the respondent’s behalf by a next friend, Ms. Doherty, being described in the title of the proceedings as “a person of

unsound mind, not so found by inquisition”. The respondent is not, and was not at any time, a person of unsound mind, as so

described. The evidence led at the trial on her behalf did not purport to establish that this was so, and the learned trial judge

determined that she was not of unsound mind. There is no issue in this appeal as to whether or not she is a person of unsound mind.

The point made by the appellant in this appeal, and as had been made in the High Court, is that the initiation of proceedings in this

form or manner was a device or strategy adopted by the respondent and/or her legal advisers to avoid the consequences of the

Statute of Limitations Act. It is not contended that the adoption of such a strategy, and the fact that she is not of unsound mind, is

a ground for dismissing these proceedings. What is suggested is that the adoption of such an incorrect strategy by the respondent

should be treated as undermining and calling in question the credibility or weight to be attached to her claim that the statutory

limitation period does not apply to her because she is a person whose ability to bring proceedings had been substantially impaired due

to psychological injury.

24. In dealing with this point, the learned trial judge stated:

“It seems likely that this approach was adopted because the plaintiff’s advisers were seeking to follow an example that

they understood had arisen for consideration in a high profile case from the west of Ireland in which members of [a

particular] family sued the local Health Board and others for failing to come to their assistance notwithstanding evidence

that they were being sexually abused. That case was settled after a number of days of hearing but it received a lot of

publicity and it seems that the plaintiff’s advisers were consciously seeking to take advantage of a procedure, as they

understood it, that had been proposed in the [other] case in order to overcome the effect of s. 48 of the Statute of

Limitations of 1957. Obviously, there was going to be a major issue on the Statute of Limitations and that indeed has

proved to be the case.”

25. In his conclusions (at page 28), the learned trial judge noted that there was no evidence to suggest the plaintiff is in any way of

unsound mind. He adverted again to that other case as a source of “inspiration” for the respondent’s lawyers to adopt such an

approach. The learned trial judge, having concluded that there was no question of the respondent being of unsound mind, proceeded

to deal with the wholly distinct issue as to whether s.48A applied in her case, on the basis of the evidence tendered at the trial in

this case. He did not, however, ignore this dimension of the case, and in my view his approach was entirely sensible and correct,

proceeding as he did to decide the s.48A issue on the totality of the evidence before him.

26. Next, I think I should deal with the submission on behalf of the appellant that the trial judge ought to have used an objective test

and not a subjective test when determining, in the light of the facts he found to be established, whether or not the respondent’s

ability to bring or to decide to bring proceedings was “substantially impaired” by reason by her psychological injuries.

27. I am not so sure it is at all helpful to analyse how a judge should approach the application of s.48A by examining whether it should

be subjective or objective. In most cases there is an element of both when deciding mixed questions of fact and law. In any event, in

this case, for the purpose of applying s.48A to the circumstances of the respondent, the learned trial judge had to be satisfied

essentially that (a) she was suffering from a psychological injury, (b) caused by an act of the appellant, and (c) of such significance

that her will to bring the action was substantially impaired, or her ability to make a reasoned decision to bring the act was

substantially impaired. These are essentially questions of fact to be decided by the trial judge in the ordinary way on the balance of

probabilities.

28. Insofar as the appellant has argued that an “objective observer” of the respondent’s conduct in the years which followed the

period of abuse, and in particular the normality of so many aspects of her life, her involvement with the criminal trials, communications

with the appellant, and similar matters, would conclude that she understood the gravity of her injury, as it was put, and the action

which needed to be taken as regards civil proceedings, that cannot be considered to be the test for applying s.48A. Having

determined that the respondent was suffering from psychological injury arising from the acts perpetrated by the appellant, the trial

judge’s task then was to determine, not her understanding of the nature of the acts and the remedies available to her, but the impact

of the psychological injury as regards any impairment of her capacity to take a decision to bring civil proceedings. This can only be

decided having regard to the evidence before the trial judge, including the medical evidence as regards her personal situation.

29. Counsel for the appellant relied upon two authorities in particular for the proposition that, essentially, an objective test should

have been applied by the trial judge. One is the case of Whitely v. Minister for Defence [1998] 4 I.R. 442, and the other is Bolger v.

O’Brian [1999] 2 I.R. 431. Each of those cases concerned an interpretation of sections 2(1), (2) and 3(1) of the Statute of

Limitations (Amendment) Act, 1991. These concerned provisions whereby a plaintiff’s claim for personal injuries could not be brought

after the expiration of three years from the date on which the cause of action accrued, or the date of knowledge of the injury and its

significance, if later, of the person injured. Section 2(1) of that Act had an express definition of a person’s knowledge for the

purposes of determining his date of knowledge. Section 2(2) of that Act provided:

“For the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been

expected to acquire -

(a) from facts observable or ascertainable by him, or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable

for him to seek.” (emphasis added)

30. As can be seen, that is a wholly different provision in its terms and nature from s.48A which falls to be applied here. The former

provision is concerned with a person’s state of knowledge, having regard to specific statutory criteria, whereas s.48A is concerned

with a person’s state of mind arising from psychological injury. The provision of the Act of 1991 asks the Court, in determining the

knowledge of the person concerned, to have regard to what knowledge “he might reasonably have been expected to acquire”.

31. In any event, since s.48A is concerned with the existence of a psychological injury to a plaintiff, and the effects of that

psychological injury on his or her capacity to make a decision about bringing proceedings, it must, as I have already indicated, be a

matter for the trial judge to determine whether the particular claimant, given her particular circumstances, has been “substantially

impaired” in the manner referred to in s.48A. This is necessarily a largely subjective approach but, of course, the trial judge will

inevitably have regard to objective facts and determine the weight to be accorded to them. The onus is on a plaintiff, relying on

s.48A, to establish the necessary factual basis from which a trial court can properly conclude, on the balance of probabilities, that

the section applies to him or her. Thus, the outcome of such an issue is governed by this essentially subjective approach, but it does

not seem to me to be a fruitful exercise in this context to approach this issue by trying to break down the process of the

determination by characterising the process as involving, wholly or partly, objective or subjective elements. I do not consider the

appellant’s objection to the trial judge’s conclusions on the grounds that they were not based on an objective, or sufficiently

objective, analysis of the facts pertaining to the respondent to be well founded.

Trial Judge’s Conclusions on the Evidence

32. Apart from the issue as to whether a subjective or objective test is appropriate in applying s.48A in a particular case, central to

the appellant’s appeal was his contention that there was simply no evidence, or no sufficient evidence, justifying a conclusion that

the respondent, prior to December, 2007, when proceedings were issued, had a degree of impairment that would prevent her from

bringing those proceedings. This submission was based on the significant body of evidence concerning the course of the respondent’s

life, her career, her involvement in the criminal prosecutions against the appellant, and other related matters, all of which

demonstrated, in the appellant’s submissions, that she was, and must have been, well capable, over extended periods of time, of

taking a decision to initiate these proceedings before she ultimately did so in 2007. It was also submitted that the trial judge had

largely ignored these factors.

33. Counsel for the appellant referred in this Court to many aspects of the respondent’s life, career, and conduct after she left school

up to the time when she wrote her letter of claim to the Personal Injuries Assessment Board in 2006, and initiated proceedings in

2007. These included the fact that she had reported the abuse to her local G.P. in 1990, that she made a formal complaint to the

gardaí in Letterkenny in 1993, and that she felt able to confront the appellant himself on at least two occasions in 1990/1992 about

his abusive behaviour. This included demanding that he undergo treatment to curb his paedophilia. She was able to give evidence for

the prosecution in the two, unsuccessful, prosecutions against the appellant, and after the second trial she issued a statement to

the media to the following effect:

“For me this case was part of the healing process and for the sense of freedom and autonomy it has brought me. I

would do it all again. I will, of course, prosecute a civil claim against my abuser, and I will approach the case with the

same stoical resolve with which I handled the criminal prosecution.”

She had, by that stage, already issued a letter of claim on 21st December, 2006. She received authorisation from the P.I.A.B. in

February, 2007, and issued the plenary summons in December, 2007.

34. The essential thrust of the submission on behalf of the appellant is that these factors, and other similar factors, showed that the

plaintiff had in many respects led a normal life, for example, graduating from University, emigrating, returning to Ireland, going back to

live in Letterkenny, taking up her career again as a teacher, and so forth, all of which in turn demonstrated that she was capable of

making major decisions, including a decision to bring civil proceedings against the appellant in a timely manner, or at the very least,

long before she did so in December, 2007.

35. If one leaves aside the medical evidence, there is undoubted force in the submissions made on behalf of the appellant. There are

indeed many aspects of the life and career of the respondent, and of her conduct generally, which could well be taken to suggest

that she was capable of taking a decision to initiate civil proceedings against the appellant long before she did in 2007.

36. But, of course, it would be quite wrong and unreal to consider these elements separate from the expert medical evidence

concerning the psychological state of mind of the respondent, particularly with regard to addressing, coping with and dealing with the

consequences of the acts of sexual abuse found to have been committed by the appellant against her over an extended period of

years.

37. The appellant, in his submissions at various points, also referred to the fact that the respondent not only understood the gravity

of her injury, but was well aware of the steps she had to take if she was to seek a remedy by way of civil proceedings. She knew, as

it was put on behalf of the appellant, exactly what was required. It seems to me quite clear from the terms of s.48A that it is

intended to cater for persons who are the victims of sexual abuse who may be quite aware of the time limitation imposed by statute

for the bringing of a civil action, but nonetheless “his or her will” or “his or her ability to make a reasoned decision, to bring such

action, is substantially impaired”, to quote from the provision itself. What the section seeks to do is to deem such a person to “be

under a disability” for the purposes of the statutory limitation period, as provided in s.48A(1). Thus, the fact that such a person is

aware of the relevant limitation period, and its implications, does not of itself defeat the application of the section.

38. Two fundamental facts are not in issue in this matter, namely that the respondent suffers from psychological injury, and that that

injury was caused by the sexual abuse and assaults committed on her by the appellant.

39. The core conclusion in issue is, of course, whether the learned trial judge was correct in deciding that the respondent’s will, or

the respondent’s ability to make a reasoned decision to bring proceedings was “substantially impaired” by reason of the psychological

injury.

40. It is quite evident from the learned trial judge’s findings that he was quite conscious and took full account of all those matters

referred to by the appellant concerning her career, apparent normality of her life and involvement in the criminal prosecutions when

deciding that she was, nonetheless, substantially impaired in her capacity to initiate these proceedings.

41. For this purpose, I would refer to the most pertinent of his findings.

42. The learned trial judge concluded that the respondent suffered from a serious psychiatric condition in the following terms:

“Having heard Ms. Doherty’s evidence and the clinical assessment of Prof. Browne, I accept that Ms. Doherty clearly

suffers from a serious psychiatric condition in the form of Post Traumatic Stress Disorder of severe degree as a result of

the abuse she suffered. That constitutes a psychological injury within the meaning of section 48A. The injury has caused

the plaintiff to be severely affected in her psychological health and it is continuing to do so. Because the condition is of

such severity and has persisted for many years the prognosis is uncertain as to future duration and degree of recovery.

It is clear, therefore, that the first requirement is satisfied.”

43. He then went on to explain his reasons for concluding that the respondent was substantially impaired in her capacity to bring

these proceedings, notwithstanding the manner in which she was able to engage with the criminal prosecutions brought by the D.P.P.

against the appellant, and other aspects of the apparent normality of her career and life post the sexual abuse period, and prior to

initiation of these proceedings. This is evident from the following extracts from the learned trial judge’s judgment:

“Prof. Browne’s overall clinical diagnosis was that Ms. Doherty suffered from PTSD at the severe end of the spectrum.

Ms. Doherty can go about her daily business and do normal things for a large amount of time but her condition is there

all the time and can be activated at any moment, at which point she will show all the disorganisation and emotion of the

traumatic experience. He described it like there were two dimensions to the one person, both of which are there at any

given time, although not always apparent. The core of her disassociation and her PTSD are still active and have not been

resolved. In the rational, ordinary part of Ms. Doherty’s personality, she was capable of making those decisions but at

any time she could move into the other part of her personality and be completely incapacitated.

A specific effect of the post traumatic stress disorder that resulted from the prolonged sexual abuse is what Prof

Browne called frozen present or dissociation. That causes the plaintiff to relive the abuse experience as a present event,

not as a memory, nor even as a disturbing and extremely horrible memory. This specific feature of the plaintiff’s PTSD,

when it was present, represented a block on her ability and her will to bring proceedings. It was not always present,

which explains why Ms Doherty was able to deal with the criminal trial and eventually to institute these proceedings. But

dissociation of this kind is a feature of the plaintiff’s life; it prevents or inhibits her thinking about the abusive events and

gives rise to avoidance behaviour. As I understand, it is impossible to quantify the time when dissociation is present or

indeed the level of intensity of the impact on thinking. It does however constitute serious impairment of psychological

health with specific impact on any decision to sue Mr. Quigley.

……………

The plaintiff was able to live an apparently normal life while the abuse was going on but it was having a profound effect

on her, just as much lesser abusive behaviour did on Michelle McCafferty and Jacqueline Toner. The effects of her PTSD

operated to make it extremely difficult for her to think about the abuse or related events and circumstances. To do so

meant re-experiencing them. That was not present all the time nor, I presume, was it always at the same level of

intensity. The evidence of Prof Browne is that the plaintiff’s capacity to decide to sue or to make a reasoned decision to

do so was seriously interfered with when her ever-present condition was activated, which means that for such time

those capacities were substantially impaired. And accepting, as I do, that those active periods were and continued to be

of such duration and frequency that they interfered significantly with the relevant capacities, then it follows that the

conditions of the section are fulfilled and that the plaintiff was under a disability.

It seems to me that, contrary to what Counsel for the defendant have suggested, carrying on one’s life with a

semblance of normality does not preclude the possibility that there may be a myriad of complex and debilitating

psychological problems lurking beneath the surface. I am satisfied that this was – and remains – the case with Ms.

Doherty.”

44. As mentioned earlier in this judgment, it is not entirely clear if the reports of Dr. Clarke were actually put in evidence at the trial in

the High Court, but their details were put to Professor Browne in examination. Evidently, he did not accept any suggestion that they

contained elements which would cause him to alter his professional conclusions concerning the state of mind of the respondent. In

any event, insofar as the reports of Dr. Clarke were before the High Court, it is clear that the learned High Court judge decided to

prefer and accept the evidence of Professor Browne which, as the trial judge, he was entitled to do.

45. In the light of the foregoing considerations and the other matters referred to in his judgment, the trial judge concluded:

“I am satisfied that the plaintiff’s psychological health has been profoundly injured. Her will to bring the action or her

ability to make a reasoned decision to bring the action were and indeed still are substantially impaired. She has been

impaired as Prof Browne reported and testified particularly by reason of the dissociation which affects the plaintiff’s

ability to address the abuse and the action is all about the abuse. Her psychological make-up has also been substantially

impaired more generally, including her will to bring an action and her ability to make a reasoned decision to do so,

because the ever-present condition has not abated and represents impairment within the meaning of s. 48A.”

46. It is clear from the above passages, and from the judgment itself, that the trial judge’s conclusions concerning the psychological

condition of the respondent and the impact which it had on her capacity or ability to bring these proceedings is anchored in the

evidence tendered by her, and in particular by Professor Browne at the trial. Counsel for the appellant, of course, accepted that the

principles set out by this Court in Hay v. O’Grady [1992] 1 I.R. 210, applies to the manner in which this Court should approach the

findings of the trial judge based on the evidence at the trial. One of the well established principles stated in that case, per McCarthy

J. at page 217, is “[i]f the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those

findings, however voluminous and, apparently, weighty the testimony against them.” In this case, Professor Browne was the only

medical witness called at the trial. It is clear that the trial judge did not simply choose to accept his evidence for that reason alone,

but that having evaluated his testimony he found it to be credible and reliable. He did have before him psychological reports on the

respondent made in or about 1998 and 2001. These did not suggest that the plaintiff was not suffering from a serious psychological

condition, but insofar as it has been submitted on behalf of the appellant, that they could give rise to a conclusion or inference that

her capacity to initiate proceedings was not substantially impaired, it was a matter for the trial judge to decide which evidence he

considered pertinent and reliable for the purpose of determining whether the respondent must be treated as a person coming within

the ambit of s.48A.

47. The words of s.48A, in referring to circumstances where the ability of a victim of sexual abuse to bring civil proceedings is

“substantially impaired”, is clearly not suggesting that victim’s ability must be totally impaired, or indeed substantially impaired at

every moment of time. There could well be short periods or a window in a person’s life where he or she might have the capacity to

bring proceedings, but the underlying psychological injury which impairs the ability to bring proceedings may intervene before the

opportunity to act arises. The courts have long recognised the difficulties which young victims of sexual abuse may have in making a

complaint for the purposes of criminal prosecution, or even bringing civil proceedings. In P.O’C. v. D.P.P. [2000] 3 I.R. 87, at 105

(which concerned criminal proceedings), it was stated:

“Expert evidence in a succession of cases which have come before this court and the High Court has demonstrated that

young or very young victims of sexual abuse are often very reluctant or find it impossible to come forward and disclose

the abuse to others or in particular complain to the gardaí until many years later (if at all). In fact this has been so

clearly demonstrated in a succession of cases that the court would probably be entitled to take judicial notice of the

fact that this is an inherent element in the nature of such offences.”

48. In H v. DPP [2006] 3 I.R. 575, the judgment of this Court expressly acknowledged, having cited that passage, that there is judicial

knowledge of the difficulties which such victims encounter in making a complaint about sexual abuse. Similar consideration must arise

where the bringing of civil proceedings are concerned. The learned trial judge in his judgment properly distinguished between the

burden on a victim who is a witness, even if the principal witness, in criminal proceedings, and the burden which she must personally

undertake if she is to be the initiator and personally responsible for the carriage and conduct of civil proceedings against the person

who perpetrated the acts concerned. Section 48A was the legislature’s chosen means of dealing with this kind of problem. In

determining whether a plaintiff, who has been found to suffer from psychological injury as a result of acts of sexual abuse, can rely on

s.48A, a court has to take an overall view of the nature and impact of that injury on the plaintiff’s ability to confront the perpetrator

of such acts of sexual abuse by bringing her own civil proceedings. This is what the trial judge did.

49. A subsidiary point made by the appellant was that Professor Browne took issue with the wording of s.48A, given the complex and

severe psychological condition of the plaintiff. The learned trial judge correctly pointed out that the interpretation and application of

s.48A, as a matter of law, was a matter for him, and not a medical witness whose expertise lay in explaining the psychological

condition of the respondent and its implications.

50. In short, there was ample evidence before the learned trial judge which entitled him to reach the conclusions he did, namely, that

the respondent’s ability to bring these proceedings prior to 2007 was substantially impaired due to psychological injury resulting from

acts of sexual abuse perpetrated by the appellant. For the reasons stated, the appellant did not establish, in my view, any grounds

for impugning the findings and conclusions of the learned trial judge. It is for these reasons that I concluded that the Court should

dismiss the appeal.