THE HIGH COURT
[1997 No. 14022P]
BETWEEN
MARTIN DELAHUNTY
PLAINTIFF
AND
THE SOUTH EASTERN HEALTH BOARD AND 
ST JOSEPH’S INDUSTRIAL SCHOOL KILKENNY AND 
THE MINISTER FOR EDUCATION AND SCIENCE
DEFENDANTS
Judgment of Mr. Justice O’Higgins dated the 30 day of  July, 2003.

	This case comes before the Courts in the following circumstances.  The plaintiff is a 38 year old married man presently residing in Spain.  In May, 1976 he was visiting a friend in St. Joseph’s Industrial School in Kilkenny when he was sexually assaulted by a house parent in that institution.  While the assault was not in the most serious of categories of sexual abuse to come before the Courts the plaintiff claims to have suffered severe consequences to which I will refer later.  The plaintiff claims that he was not aware of how serious the sequelae of the incident were for many years.  Although he was aware that he had psychiatric and psychological problems, he was not aware that those problems were at least partly attributable to the assault until 1996, despite the fact that he had seen many doctors and psychologists prior to that time.
The plaintiff was at no time a resident of the institution and therefore does not meet the criteria necessary for consideration for compensation outside the Court framework.
There is agreement between the parties that the proceedings against the first named defendant be struck out with no order as to costs.
1.	The assault and its effects 
	The plaintiff was born in Kilkenny on 24th October, 1964 and was one of family of six.  His childhood and his relationships with his family and friends were quite normal up to the time of the incident.  He was friendly with a boy called James Donoghue who was his classmate at the national school and sat at the same table as the plaintiff. That boy lived in St. Joseph’s Industrial School which was called the orphanage.  He sometimes visited the plaintiff’s home for a few weeks and sometimes for a day or a weekend.  Children from the school frequently came to play in the plaintiff’s home and it was also normal for the plaintiff to go to play pool in the orphanage or play around the grounds.  It was the policy of the school to encourage such visits.  In the course of his visits to the school he would sometimes go on walks by the river with Myles Brady, who was the house parent in charge of the house where James Donoghue lived.  
	In May, 1976 on the occasion giving rise to these proceedings the plaintiff, Mr. Brady and James Donoghue had been out on an excursion.  When they returned to St. Joseph’s, the house where James Donoghue lived appeared to be empty.  The plaintiff, James Donoghue and Mr. Brady went to Mr. Brady’s room.  Mr. Brady sent James Donoghue out to make some tea and to bring some biscuits.  After James Donoghue left, Mr. Brady locked the door and he referred to the fact that the plaintiff was wearing a scout belt.  He said he also had one and took it out and showed it to the plaintiff.  He looked at the plaintiff’s belt and proceeded to open the plaintiff’s belt and trousers and zipper.   He took out the plaintiff’s penis and started to fondle it and look at it.  After that he asked the plaintiff to lie down on the bed and the teacher lay down beside him or behind him.  He then started to hug the plaintiff and kiss his face.  This went on for two or three minutes.  After that James Donoghue came back and asked to get back into the room.  That was the end of the incident.
	The evidence of the plaintiff concerning the facts of the assault and its details is not in dispute.  The consequences of the assault however and the liability of the defendants for it are very much at issue in this case.  The plaintiff did not tell anyone at home about the assault but the matter came to light a week or two afterwards when his mother saw him sticking pins into and scratching a photograph of Mr. Brady.  The witness recalls going up to the orphanage with his parents and meeting a nun and a member of the Gardai.  He did not make a written statement at the time. 
	After the incident the plaintiff felt confused and angry.  It was common knowledge amongst his friends that Mr. Brady had been dismissed.  They also knew that Mr. Brady had assaulted the plaintiff and that the plaintiff had reported the matter.  He felt humiliated and rejected by the boys in his class because he had been the one who said something about the event and had broken a taboo about discussing such matters.  He told the Court that he felt “angry, distanced from my friends whom I felt would not identify with me or be in my group of friends anymore.  I felt basically that I could not talk to these people anymore when I met them in the street.  They would not even say hello, I just passed by.”  The plaintiff claims that there was a barrier of some sort which did not exist before and has lasted until this day.  He felt lonely and friendless.  Even today the plaintiff feels stressed in social situations and is incapable of proper communication with people.  This he claims effects every aspect of his life.  The plaintiff said he felt depressed and estranged even from his own family.  After leaving school the plaintiff worked in the family business for two years and then went to college to take a course in construction studies.  He qualified as an assistant Quantity Surveyor after three years of study at the age of 22.
•	In 1987 about two months after he qualified as a chartered surveyor the plaintiff got a job in England which lasted about three months.  He then returned and worked in the family business where he remained until March or April of 1998 when he left for Spain.
•	In 1988 he spent five months in Spain teaching English and visited Spain sporadically between 1998 and 1990.  
•	In 1990 the plaintiff married his wife who was Spanish and lived and worked in Ireland from 1990 to 1993.
•	In 1993 the plaintiff moved to Spain permanently to follow his wife and his children who had gone there already.

Medical History 
•	In 1987 the plaintiff attended Mr. Lambe a psychologist because he was feeling confused and depressed and was looking for guidance.  The plaintiff does not believe he told Mr. Lambe about the assault.  
•	In 1998 the plaintiff again visited Mr. Lambe who referred him to Dr. Griffin a psychiatrist.  Dr. Griffin prescribed medication for depression but the plaintiff gave it up after a month.  
•	In 1993 when he was in Ireland the plaintiff was advised by a Dr. Murphy to see Martin Doolan a psychologist in Kilkenny.  The reason he sought assistance was that  he felt unable to cope with the pressure of work, “unable to relate to people, unable to feel any peace in my work or in my family, I was depressed, I felt very out of place.”
•	From 1993 to 1995 when he was living in Spain the plaintiff was working on and off and had days in which he couldn’t go to work because he was depressed.  He would occasionally phone home to one of the people he had met at prayer meetings to seek advice.  However he did not seek medical help in Spain, at that time.
•	In 1995 the year that his father died the plaintiff suffered a lot from depression and didn’t go out very much.  He was referred to a Mr. Perez, a psychologist.  In that year also he was admitted to hospital for an overdose of tablets.  This was a suicide attempt because he could not see any solution to his problems and thought he was a failure all round.  He was depressed most of the time and could not fit in.  Family life was unhappy and there were regular threats of separation.  In his evidence the plaintiff said he was not sure who he was or what he was or whether he loved his wife; “I believe that I could not love her because I did not love myself.  I did not accept myself and I was very difficult to live with I think as a depressive type of individual.”  
•	Following his hospitalisation in 1995 the plaintiff was put on medication by a psychiatrist in the hospital, Dr. Manual Gurpegui.  He recommended medication and the plaintiff thinks that he rejected it at that stage. 
•	The plaintiff was referred to a psychologist Ms. Concha Mediano and visited her over a period of about six months in 1996.  The plaintiff believes that she was the first professional he told about what had happened in the orphanage. 
•	The plaintiff visited Mr. Doolan again in 1998, as well as a counsellor.  
•	From 1998 to 2000 the plaintiff was attending Dr. Gurpegui and Mr. de Valenzuela.  He continues to see the latter.
	
	  Even when he met his wife the plaintiff was doubtful about his ability to form a relationship. 
	
	The medical evidence:
	Very considerable difficulties have arisen in considering the medical evidence and the evidence of psychologists in this case, due to the complexity of the findings, the technical nature of the evidence, the difficulties of interpretation, and the deficiencies in translation all of which were features of this case.
	Mr. de Valenzuela is a clinical and forensic psychologist and director of the centre for clinical and forensic psychologists in Grenada, Spain.  He conducted certain diagnostic procedures and diagnosed chronic effective disorder and anxiety disorder.  Chronic effective disorder is a depressive disorder characterised by feelings of hopelessness and despair.  The plaintiff had a strong negative vision of the future and a low self-image.  He had difficulties in concentration and difficulties in sleeping and sometimes he had suicidal thoughts.  The depression began at the onset of the plaintiff’s adult life and he suffered from emotional disorders since his adolescence and continues to suffer from them until the present time.  He has a complex personality disorder and suffers from irrational thoughts and inadaptive behaviour.  The plaintiff had a major depressive disorder, a dysthymic disorder, (which consisted of chronic periods of low-grade depression) and a mixed personality disorder, as well as having marital problems.  Mr. de Valenzuela also diagnosed post traumatic stress disorder but this finding is disputed.  At the moment the plaintiff is free of any symptoms of major depression and has been for the last year, but there may be recurrence in the future.  Mr. de Valenzuela considered that the probability of the depressive illness having been caused by the episode of sexual abuse was more than 70%.  His current problems are related not only to the sexual abuse itself but to his inability to adapt to it.  He also suffers from negative thoughts and feelings of isolation, which first became apparent after the assault.  The witness considered that the plaintiff’s depressive episodes were principally of a reactive nature.  Mr. de Valenzuela, having conducted his evaluation, concluded that there was a connection between the sexual abuse and what he termed “a new psychopathology in the patient”.
	On 30th October, 2001 the plaintiff was examined by Dr. Cian Denihan, a consultant psychiatrist, on behalf of the third named defendant.  The interview lasted approximately one hour.  Following his examination Dr. Denihan concluded that the plaintiff had a clear history of recurrent depressive disorder which appeared in remission at the time of the interview.  His view was that the depression occurred against the background of a vulnerable personality with what Dr. Denihan termed “prominent avoidant personality traits”.  Dr. Denihan disagreed strongly with Mr. de Valenzuela’s diagnosis of a post-traumatic stress disorder and considered that there was no basis for such a diagnosis.  He based his view on the absence of certain symptoms which would support such a diagnosis.  In particular he would have expected the core features of post-traumatic stress disorder to have been discussed, monitored or made otherwise evident within six months of the event.  Those core symptoms would include evidence of flashback, intrusive nightmares, hypervigilance and overalertness.  These he maintained were not mentioned anywhere other than in the test conducted by Mr. de Valenzuela.  He does not, however, dispute that the episode was traumatic and distressing for the plaintiff and he is not disputing that the plaintiff suffered seriously as a result of the assault.  Dr. Denihan regards the sexual abuse as merely a vulnerability factor for the subsequent depression, whereas Mr. de Valenzuela puts it as a causative factor.  Mr. de Valenzuela considers that the sexual assault was the cause of his present personality problems whereas Dr. Denihan, while agreeing that the formation of adult personality depends on a combination of genetic factors and childhood experiences is not prepared to make the causal connection between the assault and his personality problems.
	Mr. Delahunty did not tell the court about his nightmares or describe any symptoms of post-traumatic stress disorder, such as flashbacks or hypervigilance, neither did his mother refer to any such matters in her evidence.  When the plaintiff met Mr. Martin Doolan, a clinical psychologist, in 1993, complaining of depression, the notes taken by Mr. Doolan  mention bed wetting into teens, sleep walking and nightmares, but do not mention the content or the context of the nightmares.  Their connection, if any, with the sexual abuse was not disclosed at his consultation with the plaintiff.  There was no mention of the sexual assault at that meeting in 1993.  Intrusive recollections of the traumatic event are a characteristic symptom of post-traumatic stress disorder, but the plaintiff did not refer to such recollections in either of his interviews with Mr. Doolan.  In those circumstances, while the finding of post-traumatic stress disorder was made by Dr. de Valenzuela in his lists, such findings have not been proved to this court on the balance of probabilities to be a matter of any significance.  Indeed, the plaintiff himself, although he gave evidence of the loneliness and sense of alienation which he attributed to the event and which characterised his adolescence, did not realise that the sexual assault had had serious repercussions and that his psychological problems were attributable to it.  If the plaintiff had been suffering from significant post-traumatic stress disorder I consider he would have been very much aware of the symptoms.
	It is difficult to say with any certainty whether the depression which the plaintiff suffers was caused or triggered by the sexual assault.  The absence of post-traumatic stress disorder does not mean that the abuse has not affected somebody, as such abuse can also express itself in other ways such as in depression or anxiety as was stated by Mr. Doolan.
	The note of Dr. Griffin, a psychiatrist who saw the plaintiff, refers to “depression since the age of twelve”.  Mr. de Valenzuela made similar findings.  The evidence of the plaintiff himself, however, was that he did not complain of depression until he first went to see Mr. Lambe in 1987.  In September 1993, when the plaintiff was aged 29 he told Mr. Doolan that the onset of his problems occurred five to eight years prior to that time.  Dr. Denihan, in his report, suggests that it may be overly simplistic to assume that Mr. Delahunty’s difficulties in subsequent life had their genesis in the sexual abuse the subject matter of these proceedings.  His reservations are based on the fact that it was only after engaging in therapy that the plaintiff began to place significance on his experience of sexual abuse in terms of being a causative factor in his subsequent life difficulties.  Dr. Denihan considers that there has been a process of what he terms “retrospective identification”.  He also noted that at the time the abuse took place the plaintiff was negotiating the difficult transition from primary to secondary school.  He considered it difficult to disentangle the possible contribution to such variable factors to the genesis of the plaintiff’s problems.   He referred to the desirability of a “collateral history from a well placed adult informant”.  
Mrs. Delahunty provided such collateral history in her testimony.  She said that there were absolutely no difficulties with the plaintiff until the age of twelve.  He was getting on well at school and “he was just like the rest of them, normal, just taking part in the family the same as everybody else, friends coming and going”.  He was a generous, kind, helpful child and he took part fully in all the activities in the house and in school.  She furthermore stated that he had no difficulties changing from one school to the other.  Her evidence was that that she “imagined it changed his life, totally changed his life”.  She said he became very angry, totally confused, antisocial and that he always had “a confused, bitter look” on his face.  
That evidence provides at least some collateral support for the opinion of Mr. de Valenzuela that the subsequent difficulties in life were attributable to the sexual assault.  Mr de Valenzuela has also fuller knowledge of the plaintiff (which was gleaned over hundreds of hours) than Dr. Denihan, who only saw the accused for one hour.  Moreover the methodology of Mr. de Valenzuela’s evaluation was not challenged in cross examination.  On the balance of probabilities I accept his opinion that the fact of sexual assault, together with the way that the boy reacted to it, have had serious repercussions on the development and mental health of the plaintiff.

2.	Statute of Limitations and Delay
The defendants contend that the case is statute barred pursuant to the provisions of the Statute of Limitations Act, 1957 and have so pleaded.  Much of the argument was directed to the Statute of Limitations Act, 2000 but in my view the relevant provisions are those of the Statute of Limitations (Amendment) Act, 1991.  Section 2 of the Act of 1991 reads as follows:
2.—(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:
( a ) that the person alleged to have been injured had been injured,
( b ) that the injury in question was significant,
( c ) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
( d ) the identity of the defendant, and
( e ) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
     (2) 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.
     (3) Notwithstanding subsection (2) of this section—
( a ) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
( b ) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.”

In this case the plaintiff was aware from the date of the assault that he had been injured and he was aware of the identity of his assailant.  He was not aware, however, of the significance of the assault nor was he aware that the significant psychiatric/psychological injuries which constitute the gravamen of his case were attributable to the sexual assault.  He did not ascertain the significance of the sexual assault or become aware that his psychological problems were attributable to the sexual assault until the year 1996, despite the fact that he had seen many psychiatrists and psychologists over the years.  Such knowledge was only ascertainable by him with the help of  psychological and psychiatric experts.  In my view he took all reasonable steps to obtain that advice.  The contentions of the defendants in relation to the Statute of Limitations must therefore fail. 
Apart from relying on the Statute of Limitations the defendants argue that they are placed at a very significant disadvantage in meeting the case because of the lapse of time and contend that it would be unfair to allow the case to proceed.  In O’Domhnaill v Merrick [1984] I.R. 151, Henchy J. held at pp. 157 and 158 that it would be: 

“contrary to natural justice and an abuse of process if a defendant had to face trial in which she would have to try and defeat an allegation of negligence on her part in an accident which would have taken place 24 years before the trial, and a claim for damage of which she first learnt 16 years after the accident,” 

on the basis 
“that it puts justice to the hazard to such an extent it would be an abrogation of basic fairness to allow the case to proceed for trial.”  

In Sheehan v. Amond [1982] I.R. 235 the Supreme Court at p. 239 dismissed for want of prosecution a claim where the lapse involved would have been seventeen years, stating that:
 “It would be contrary to the fundamentals of fair court procedures if after what would have been at least 17 years after the accident in question the defendant would have been expected to mount an effective defence against a claim which the plaintiff’s solicitor has inexplicably allowed so to fade in the dim uncertainties of the past as to be beyond the reach of fair litigation.”  

In Dowd v. Kerry County Council [1970] I.R. 27 the Supreme Court (contrary to a submission by the plaintiff) did adopt as being “wholly admirable” an observation of Diplock L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229 where he held at p. 255 that: 

“Where the case is at is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear.  The chances of the court being able to find out what really happened are progressively reduced as time goes on.  This puts justice on the hazard.”  

However, in that case the court held that the test to be applied was
“…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 succeed.”

In O’Keeffe v. The Commissioners of Public Works (Supreme Court) Unreported 24th March, 1980 the court said it would be in relation to a case where the hearing would take place over 23 years after the alleged act of negligence that: 

“ …a hearing in those circumstances would be a parody of justice for it would come at a time when the defendants through no fault of theirs had been deprived of any true opportunity of meeting the plaintiff’s case.”

And in Toal v. Duignan & Others [1991] I.L.R.M. 135 and 140 the Supreme Court held that:

 “Where there is clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the act complained of and the trial, then if that defendant had not 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 all of those cases the court had to consider whether, given the circumstances of the particular case and the delay, it would be unfair or unjust on the defendants to allow the case to proceed.  In The State (O’Connell) v. Fawsitt [1986] I.R. 362 Finlay C.J. prohibited a trial from taking place after a delay of four years on the basis that it was excessive and prejudicial.  However in J.O’C  v. The Director of Public Prosecutions [2000] 3 I.R. 478 it is worthy of note that the prohibition was refused in that case even though the delay was greatly in excess of four years.  On the basis that it had “not been established that there is a real and serious risk of an unfair trial.”
I was also referred to a passage in J.O’C v. The Director of Public Prosecutions [2000] 3 I.R. 478 where Hardiman J. stated at p. 504: 

“Apart from the effective lapse of time on the memories of those principally involved (an interval of 20 or more years) makes it difficult if not impossible to clarify the surrounding circumstances and to adduce any element at all of undoubted fact which the statement of the parties can be correlated and tested.  The element of hazard is a chance that this state of affairs that this introduces has been recognised for centuries.  The more nearly a serious trial consists of mere assertion countered by bare denial, the less it resembles a forensic inquiry at all.”

The cases cited above decide that the court must consider the effects of the delay in the context of the possibility of an unfair trial.  If the delay is such as to make it unfair on the defendant to proceed with the case, the court may have to dismiss the action even in circumstances where no blame attaches to the plaintiff.
The delay in this case is not such as to warrant the action being dismissed.  I do not consider it unfair to the defendants or either of them that the case, should proceed, notwithstanding the delay.  In this regard it is important to note that the facts of the case giving rise to this action are not in dispute - it is common case that the plaintiff was assaulted in the manner that he alleged by Mr. Brady.  The issue that arises between the plaintiff and the first named defendant revolves to a large extent on the responsibility for the facts as admitted.  The third named defendant has detailed records and its case, with certain exceptions, is not based on the accuracy of recollection.  It would be clearly more satisfactory if the case had been brought before the courts earlier, and there is no doubt that the decision in this case depends at least in part on resolving conflicts of evidence concerning events which occurred a long time ago.  However, I am not convinced that either of the defendants has been prejudiced so as to make it unfair to allow the plaintiff to proceed.
3.	Vicarious liability of the 2nd named defendant
The application of the doctrine of vicarious liability to the facts of a particular case can often be a matter of great difficulty.  The difficulty arises in determining whether a particular act has been committed in the scope of employment so as to render the employer vicariously liable for the torts.  The classic formulation of the test is contained in Salmond & Heuston’s Law of Torts, 21st ed., at p. 443:  

“If it is either (1) a wrongful act authorised by the master or (2) a wrongful and unauthorised mode of doing some act authorised by the master, it is clear that the master is responsible for acts actually authorised by him; the liability will exist in this case even if the relationship between the parties was one of agency and not one of service at all.  But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised provided they are so connected with the acts that he has authorised that they might rightly be regarded as modes – although improper modes – of doing them.”
 
The difficulty was referred to by McCarthy J. in  McIntyre v. Lewis [1991] 1 I.R. 121 at p. 137, where he said:

“In the course of the argument counsel for the State was asked as to where the scope of employment or duty ends – at what particular time, in what circumstances.  No satisfactory answer was obtained to this question because there is no satisfactory answer.  The matter is summarised in the second edition of McMahon & Binchy, Irish Law of Torts at p. 756 where it is suggested the test is by looking to see if the acts complained of are so closely connected with the employment of the primary wrongdoer as to make the employer vicariously liable.”

The attention of the court was drawn by Mr. Condon, for the second named defendant, to two important Canadian decisions on the topic of vicarious liability, namely Bazley v. Curry (1999) 174 D.L.R. (4th) 45 and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71.  In Bazley v. Curry an employer was found vicariously liable for an employee’s tortious conduct in sexually abusing a child.  In helping to distinguish between an unauthorised mode of performing an authorised act which attracts liability and an entirely independent act which does not, it was held that where a precedent was inconclusive the courts should turn to policy for guidelines.  Two fundamental policy concerns were the provision of a just remedy for the harm and the deterrence of future harm.  It was held that the fundamental question is whether the wrongful act was sufficiently related to conduct authorised by the employer as to justify the imposition of a vicarious liability.  In determining the sufficiency of the connection between the employment and the act the court could have regard  to  (a)  the opportunities the enterprise afforded to the employee to abuse his power;  (b)  the extent to which the wrongful act may have furthered the employer’s aims and hence be more likely to be committed by the employee;  (c)  the extent to which the wrongful act was related to friction, of confrontation or intimacy inherent in the employer’s enterprise;  (d)  the extent of power conferred on the employee in relation to the victim;  (e)  the vulnerability of potential victims through wrongful exercise of the employee’s power.  In that case the offending employee’s functions were to do everything that a parent would do for a child, including general supervision and intimate duties such as bathing and putting the children to bed.  The wrongful act in that case was held to be sufficiently related or closely connected to the conduct authorised by the employers to justify the imposition of vicarious liability.
In Jacobi v. Griffiths (1999)174 D.L.R. (4th) 71, the Supreme Court of Canada, held that the process for determining when a non-authorised act is so connected to the employer’s enterprise that liability should be imposed involved two steps:
1.	Firstly a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls.
2.	If prior cases do not clearly suggest a solution the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.
In the facts of the case, however, the court held that the strong connection test had not been satisfied.  The offender was a programme director of a club whose job was to supervise volunteer staff and to organise after school recreational activities.  Although it was part of his job to build up a positive rapport with children the relationship was not one of intimacy and in the circumstances the strong connection case was not satisfied.
In Lister v. Hesley Hall Limited [2002] 1 A.C. 215 the leading UK authority the plaintiffs were residents in a boarding house attached to a school owned and managed by the defendants.  The warden of the boarding house, employed by the defendants, sexually abused the claimants.  It was held in the words of the head note:

“Having regard to the circumstances the warden’s employment, including the close contact with the pupils and the inherent risks that it involved, there was a sufficient connection between the work that he had been employed to do and the acts of abuse that he had committed for those acts to be regarded as having been committed within the scope of his employment and the defendants should be held vicariously liable for them.”

Lord Steyn said at para. 28 of the judgment, p. 230:

“Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden.  The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.  On the facts of the case the answer is yes.  After all, the sexual abuse was inextricably interwoven with the carrying out of his duties in Axeholme House.  Matters of degree arise.  But the present case clearly falls on the side of vicarious liability.”

	 Lord Clyde at para. 50, p. 237 stated:

“In addition to the opportunity which access gave him, his position as warden and the close contact with the boys which that work involved created a sufficient connection between the acts of abuse which he committed and the work that he had been employed to do.  It appears that the respondents gave the warden a quite general authority in the supervision and running of the house as well as some particular responsibilities.”

Lord Millett, in holding the school liable, said that he would regard this decision “in accordance, not only with the ordinary principle deducible from the authorities but with the underlying rationale of vicarious liability”.  
It is to be noted that both Canadian decisions referred to above disapproved of the decision in Trotman v. North Yorkshire County Council [1998] E.L.R. 625 and Lister v. Hesley Hall overruled it.  In Trotman v. North Yorkshire Butler-Sloss L.J. considered that the sexual assaults in that case were “far removed from an unauthorised mode of carrying out a teacher’s duty on behalf of her employer” at p. 591.  She later stated:
“… in the field of serious sexual misconduct I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an unauthorised act, although I would not wish to close the door on the possibility.”
 
In Bazley v. Curry (1999) 174 D.L.R. (4th) 45 that reasoning was faulted in as depending: 

“on the level of generality with which the sexual act is described.  Instead of describing the acts in terms of the employee’s duties of supervising and caring for vulnerable students during the study trip abroad, the Court of Criminal appeal cast it in terms unrelated to those duties.  Important legal decisions should not turn on such semantics”.  

Lord Steyn agreed with that criticism in Lister v. Hesley Hall.  In this jurisdiction, in Health Board v. B.C. [1994] 5 E.L.R 27, some years before the decision in Trotman v North Yorkshire County Council, Costello P. spoke in strikingly similar terms at p. 33:

“In the absence of any express statutory provision, the law in this country in relation to the liability of an employer for a tortious act, (including statutory torts) of his employee is perfectly clear – an employer is vicariously liable where the act is committed by his employee within the scope of his employment.”

He went on to say, however at p. 34:

“An employer may of course be vicariously liable when his employee is acting negligently or even criminally . . . but I cannot envisage any employment in which they were engaged in respect of which a sexual assault could be regarded as so connected with it as to amount to an act within its scope.”

The "strong connection" argument does not avail the plaintiff in this case.  No such connection can be established between the plaintiff in this case and the employment of the man who assaulted him.  No such relationship as that existing in Bazley or even in Jacobi existed – the plaintiff was merely a visitor in the institution at the time of the assault.  Moreover the policy considerations mentioned in those cases as grounds to justify vicarious liability while possibly applicable in relation to residents of St. Joseph’s Institution, have no application in relation to a mere visitor.  Even if the reasoning in Lister v. Hesley Hall Ltd. [2002] 1 A.C. 215 were to be preferred to the reasoning of Costello J. in Health Board .v. B.C. [1994] 5 E.L.R. 27 this would not enable the plaintiff to establish vicarious liability.  Mr. Condon submitted that Lister was a departure in the law which had not been adopted in this country.  That might perhaps be open to question on a fuller analysis of the judgment.  However, whether it be a new departure of the law or the application of existing law matters not.  There was not such a connection between the employment of Mr. Brady as a housemaster and the assault on the plaintiff as to fix liability on his employers.  The plaintiff in this case was a visitor in respect of whom Mr. Brady had no particular duties, notwithstanding the fact that visitors were encouraged to visit the institution.  This is in contrast to Lister where the abuser was a warden and the close contact with the pupils and inherent risks that it involved were important factors in the decision.  In the circumstances of this the vicarious liability of the second named defendant to the plaintiff for the acts of Mr. Brady has not been established

4.	Vicarious liability of the third named defendant.  Non delegable duty of care.
The second named defendant, although it employed Mr. Brady, is not vicariously liable for the assault on the plaintiff; a fortiori no vicarious liability attaches to the third named defendant whose connection with Mr. Brady was quite remote.  He was not the Minister’s employee and the Minister had no function in the hiring or firing of Mr. Brady, nor was he responsible for the way in which he performed his duties.
	In the alternative it was submitted that the third named defendant had a non-delegable duty of care to the plaintiff in this case.  
Mr. Condon referred me to M.B. v. The Queen (2001) 197 D.L.R. (4th) 385, a case decided by the Supreme Court of Canada.  In that case the plaintiff was placed in the care of  the Superintendent of Child Welfare, an official of the State.  By the provisions of the relevant legislation he was the legal guardian and was authorised to make arrangements for the placement of the child in a foster home.  He made such a placement and the child was abused by the foster father.  The Crown was held to be liable.  The Supreme Court held that there was a non-delegable duty on the Crown. 
The following passage occurs at paras. 52 to 54 of the judgment of Prowse J.A.:
“[52] 	In a brief discussion of non-delegable duty in the Law of Torts, supra, Professor Fleming described the liability of an employer for the breach of duty by its independent contractor as a "disguised form of vicarious liability".  At p. 434 of his text he stated:
‘More controversial has been the wisdom of placing the employer, in an increasing range of situations, under responsibility for harm caused by a contractor in the performance of the work.  This disguised form of vicarious liability is imposed wherever the defendant is said to be under a "non-delegable" duty, in the sense that he cannot acquit himself by exercising reasonable care in entrusting the work to a reputable contractor but must actually assure that it is done - and done carefully.’ 

[53]	Professor Fleming was particularly critical of what he viewed as the lack of a coherent theory to determine when a duty would be classified as "non-delegable".  He noted, however that a common thread in several of the authorities was the existence of a "special protective relationship" and a corresponding special reliance or dependence by the person who suffered the loss.  That is what is alleged in this case.
[54]	The nature of a non-delegable duty, and the nature of the liability which flows from such a duty, is also discussed in Salmon and Heuston on The Law Torts, 21st ed. (London: Sweet & Maxwell, 1996).  There, the authors point out the distinction between vicarious liability and liability for breach of a non-delegable duty at p. 461:
		‘The liability of the employer of an independent contractor is not properly vicarious: the employer is not liable for the contractor's breach of duty; he is liable because he himself has broken his own duty.  He is under a primary liability and not a secondary one.  Hence it is misleading to think of the law on this point as a general rule of non-liability subject to a more or less lengthy list of exceptions.  The real question is whether the defendant is, in the circumstances of the particular case, in breach of a duty which he owes to the plaintiff.  If the plaintiff proves such a breach it is no defence to say that another has been asked to perform it.  The performance of the duties, but not the responsibility for that performance, can be delegated to another.  This seem to be all that is meant by the oft-repeated phrase "non-delegable duties’.  [Emphasis added.]”

		The nature of the duty is further discussed in para. 81 of the judgment:
“As noted at para. 53 of these reasons, Professor Fleming spoke of a common policy thread underlying the cases in which a non-delegable duty was imposed, that common thread is referred to by Mr. Justice Cory at para. 32 of Lewis, and by Madam Justice McLachlin adopting and following the words of Mason J. in Kondis v. State Transport Authority (1984) 154 C.L.R. 672 (Aust. H.C.), at para. 54 of the Lewis decision:
‘In these situations (previously discussed) the special duty (to see that care is taken) arises because the person on whom it is imposed has undertaken the care supervision of control of the person or property of another and is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.’ ”

Counsel also referred me to the case of Blackwater v Plint (1998) 161 D.L.R. (4th) 538 a decision of the Supreme Court of British Columbia.  In that case the plaintiffs were Indians within the meaning of the relevant Canadian legislation.  Between 1943 and 1970 they were students of residence at a residential school operated jointly by the United Church of Canada and the government of Canada.  They brought an action for damages arising from sexual assaults committed by a dormitory supervisor employed at the school.  Various provisions of the Indian Act in force over the years empowered a minister to establish and regulate boarding schools for Indian children, to require attendance and to enter into agreements with religious organisations concerning the operation of the schools.  This school was originally governed by an agreement whereby the church agreed to support, maintain and educate Indian children in a manner satisfactory to the minister in return for certain payments.  In 1962 a new agreement was entered into in which the church was referred to as "management".  The supervisor who perpetrated the assaults reported to the school principal who was a chief executive officer of the school.  The government had the power to approve the principal selected by the church but the agreements did not specify if it could fire the principal.  He communicated regularly with both the church and government.  Prior to 1949 the church hired all employees; after that date the government hired the teaching staff.  The issue of whether the church and/or the government of Canada could be held vicariously liable for these sexual assaults was tried separately.  It was held that both the church and government were employers and were therefore vicariously liable for the assaults committed by the dormitory supervisor.  
The second part of Blackwater v Plint (1998) 161 D.L.R. (4th) 538 to which I was referred to dealt with the liability of the defendants for non-delegable duty.  All relevant legislation under the Canadian Indian Act contained provisions similar to those in the Children Act, 1941.  In deciding whether the powers of the Crown were delegable or not the court held that in order to answer the question it was necessary to consider the Indian Act as a whole and that the: 

“. . . pervasive control granted by parliament in the language of the Act to Canada over every aspect of the lives of Indians is not consistent with a delegable statutory duty.
While there is no doubt that Canada had the statutory authority to enter into the educational contracts with the religious organisations, its statutory duty in respect of Indians was not thereby vacated .   per Brennan C.J. at para. 255.”

In my view the Canadian authorities do not assist the plaintiff in this case.  In MB v The Queen (2001) 197 D.L.R. (4th) 385 the superintendent was the legal guardian of the victim and was authorised specifically to make arrangements for the placement of the child in a foster home.  In the present case it is unnecessary to decide whether there was any such special protective relationship between the minister and the children in St. Joseph’s; in my view it is clear that there was no such relationship between the minister and the plaintiff in this case.  Likewise, whatever the arguments that could be made for the existence of such a relationship concerning the residents of St. Joseph’s Institution, it is clear that in this case unlike Blackwater v Plint (1998) 161 D.L.R. (4th) 538 the minister had no “control” (pervasive or otherwise) over any aspect of the life of the plaintiff.  In those circumstances he was not owed a non-delegable duty of care.  Furthermore there is no evidence that the minister delegated or attempted to delegate any of his statutory duties under the Childrens Act, 1908.

5.	The alleged responsibility of the 2nd named Defendant in negligence
	The plaintiff’s case is that the second named defendant is liable in negligence for the actions of Mr. Brady in assaulting the plaintiff.  The evidence of Mr. Murphy, Mr. O’Connor and Mr. Noctor are of vital importance in this aspect of the case.  
Mr. Murphy is a Quality Assurance Officer for Childcare in the South Eastern Health Board and has worked for the board for almost twenty years.  He worked at St. Joseph’s Institution for some months prior to his resignation in January, 1977.  At that time it was one of the largest institutions in the country.  In l976 he had a return from Australia and was asked to take the boys every evening for sports.  At that time the house parent was a Mr. David Murray who was dismissed suddenly and is currently serving a prison sentence for sexually abusing some of the boys.  When he left the institution Sr. Conception asked Mr. Murphy if he would run the unit with Sr. Winifred pending the appointment of a replacement. He had no training or experience of childcare at this stage and received his instructions from Sr. Conception.  While Mr. Murphy was working there, Mr. Brady was taken on as a house parent.  He was a suitably qualified person and Mr. Murphy became his assistant.  Mr. Brady commenced work in the summer of 1976 and Mr. Murphy recalls working with him around September, 1976.  Mr. Brady lived in the same house as the boys who were aged between twelve and sixteen.  Soon Mr. Murphy thought that Mr. Brady’s behaviour was:
“quite bizarre- there was nothing I could put my finger on, it just seemed quite strange.”  
As a result of allegations made by the boys, Mr. Murphy confronted Mr. Brady who denied the allegations.  He had a meeting with Sr. Conception and told her of the boys’ complaints of physical abuse.  He left that meeting feeling that something would be done about the complaints.  Some of the boys came back later and told them that things had now become worse in St. Joseph’s.  He spoke to Sr. Conception, a second time.  After this meeting he felt frustrated because he believed that no action was going to be taken to deal with the complaints.  His evidence is that on two occasions he passed on complaints about the conduct of Mr. Brady but he does not know whether Sr. Conception carried out any type of investigation.  It is important to stress that at no stage did Mr. Murphy suspect that there was sexual abuse being perpetrated by Mr. Brady.  The conduct that caused him concern was the shouting at and physical abuse of the boys.
	Such were Mr. Murphy’s concerns that on the 23rd January, 1977 he wrote to Sr. Conception.  This letter is of vital importance in the case.  It reads as follows:
                           “Dear Reverend Mother, 
               Please accept this as my letter of resignation.
I leave for the following reason.  Under different circumstances having two house fathers in Summerhill could work, but in the case of Mr. Brady and I, it is not working.  In my opinion, I feel (and fear) that at the present time Mr. Brady is neither mentally nor emotionally stable enough to give the boys the security and example they need.  Furthermore, I feel the situation in Summerhill at the moment is highly undesirable and unsafe.
	 This is not a hasty or reckless judgment, but one formed after four months of working in close proximity with him, and it is not without great thought and extreme reluctance that I bring these matters to your attention, but as my first responsibility is to the boys, in all conscience I must. 
	Having been assured that there [is] no chance of transferring to another group, then I must, with even greater reluctance, submit this, my resignation.
	Yours sincerely,
           Edward H.  Murphy.”

	Sr. Joseph Conception, however, takes issue with much of the evidence of Mr. Murphy.  She employed him reluctantly at the behest of Dr. Birch, the Bishop of Ossory, who was keen that Mr. Murphy get some experience in St. Joseph’s, as institutional experience was a prerequisite for attending a child care course which the bishop wanted Mr. Murphy to undertake. She has no recollection of either of the two meetings at which Mr. Murphy said he had told her of his concerns about Mr. Brady and she believed that she would have remembered those meetings if they had taken place.  She does not recall Mr. Murphy voicing any concerns about Mr. Brady even though she met the staff several times during the day in different places.  Her evidence was that she never received any complaint about Mr. Brady until she got Mr. Murphy’s letter.  Moreover it emerged in cross-examination in the statement given by Mr. Murphy to the Gardai in 1995 in the context of the criminal prosecution of Mr. Brady, that he mentioned only one meeting.

	In resolving the conflict of evidence I prefer the evidence of Mr. Murphy.  Firstly the letter itself refers “having been assured that there was no chance of transferring to another group”.  Sister Joseph Conception agrees that she is the person who would be consulted with regard to such a transfer.  She has no recollection of being consulted.  It seems clear to me that prior to writing the letter that Mr. Murphy discussed the matter with Sr. Joseph Conception and ascertained that he could not move to another unit.  Secondly, it is clear from the contents of the letter that Mr. Murphy’s concerns were of such a grave nature as to cause him to resign.  This is an indication of how seriously he considered the matter.  In those circumstances it is likely that his evidence concerning the events is more accurate than that of Sister Joseph Conception, who did not consider the matter to be sufficiently important to take any action other than to consult with Sister Joseph Winifred.  If she attached such little importance to the letter, couched as it was in the strongest terms and expressing the view that the situation in Summerhill was “highly undesirable and unsafe”, it is also likely that she did not attach any importance to previous discussions concerning the same matter.  Moreover, the memory of Sister Joseph Conception is less than accurate on other events as well.  This is illustrated by her recollection that Mr. Granville attended the childcare course in 1970 or 1971.  The evidence of Mr. Granville is that he was not even involved in childcare at the time and his evidence is clearly to be accepted on that point.  Furthermore Sister Joseph Conception’s recollection is also inaccurate concerning Mr. Murphy’s resignation when she states that she was contacted ‘out of the blue’ by Mr. Granville.  In their letter dated the 12th January, 1976 she says as follows.  “We will see you on the 24th January D.V.”, so she was clearly expecting a visit from Mr. Granville.  I wish to emphasize that Sister Conception impressed the Court as being an extremely truthful witness doing her utmost to assist the Court.  Unfortunately I am unable to find her evidence accurate in many respects.  
	Mr. Murphy voiced his concerns about Mr. Brady’s behaviour on two occasions prior to writing the letter of resignation.  If an investigation had been undertaken on foot of this it is highly likely that it would have been ascertained that Mr. Brady was unsuitable for his position and that the necessary action would have been taken.  If Sr. Joseph Conception enquired of the boys it is highly probable that they would have told her about their difficulties with Mr. Brady.  She undoubtedly would have taken action just as she did in the case of David Murray.  Mr. Brady would not have been in a position to abuse the plaintiff.  Unfortunately and inexplicably, no such investigation took place.  This lack of action constitutes negligence.
	
The Evidence of Mr. O’Connor
Mr. Paul O’Connor was put into care in St. Joseph’s Industrial School as a five year old child and lived there until he was sixteen years old.  While resident in the institution, he was sexually abused by Mr. David Murray, a childcare worker who later pleaded guilty to the offences.  He described Mr. Brady as “a very violent man” and said “he would kick you, box you, assault more or less” and said “his temper was very fiery for no reason”.  Mr. O’Connor’s evidence was that he was also sexually assaulted by Mr. Brady.  He told the Court that he mentioned the sexual abuse to Mr. Murphy although he cannot remember the precise terms in which he mentioned it.  He does not know what words he would have used at that age.  However, Mr. Murphy’s evidence was that he was not aware of any complaints of sexual abuse against Mr. Brady.  I have no doubt that if it had been brought to Mr. Murphy’s attention that there was a complaint of sexual abuse against Mr. Brady, he would have taken action on it just as he was prepared to take action concerning the allegations of physical abuse which were levelled against the same Mr. Brady.  Either Mr. O’Connor is mistaken in his evidence or he failed to make clear to Mr. Murphy the nature of his complaints.  
Mr. O’Connor told the court that he was afraid to go to Sister Joseph Conception because he was afraid of Mr. Brady.  Although he had confidence in her, he would not have known what to have said to her.  His evidence was that after the summer holidays, his elder brother Myles went to a side door and that he was able to hear a conversation that his brother had with Sister Conception in which Myles said that there was “some funny sexual abuse going on”.   Mr. O’Connor said he does not think that she actually understood what he was trying to imply at the time but later said that she did.  This conversation, occurred after Mr. Brady had left the school and is not relevant in the context of Sister Conception taking action against Mr. Brady on foot of complaints.  Sister Conception herself has no recollection of any such conversation.  If a complaint of sexual assault had been conveyed to Sr. Joseph Conception in clear terms it is most unlikely that she would have failed to act on such a complaint as she had acted on similar information which was conveyed to her in Whit 1977 by Seamus O’Donoghue, when she contacted Sergeant Tuohy immediately.   The evidence of this witness can not be considered reliable at this point. 

	The evidence of Raymond Noctor
	Mr. Noctor was placed in St. J’s School in 1967 or 1968 and while there was buggered by David Murray.  In 1997 he was present in court when Mr. Murray pleaded guilty to charges arising out of that assault.   He told the court that immediately after the offence he complained to Sister Joseph Conception and made several complaints to her throughout the years in St. Josephs in the presence of Sergeant Tuohy and Sergeant Geraghty.  He also complained to the late Bishop Birch.  
	He stated that Sergeant Tuohy was present on the second occasion.  He also said that on two occasions he passed on complaints to Sr. Joseph Conception about Mr. Brady out of concern for the welfare of his younger brother who was a resident in St. Joseph’s at that time.  Sergeant Tuohy denied that any complaint was made to Sr. Joseph Conception in his presence and stated that had that occurred he would have remembered it.  He also stated that no complaint was made to him about the behaviour of either Mr. Murray or Mr. Brady other then in the context of the criminal investigation into the activities of Mr. David Murray.  Mr. Noctor made a statement in that context in 1995 but made no mention of any assault by Mr. Brady.
	 Sergeant Geraghty also testified that he received no complaints of either physical or sexual abuse.  Had he received such complaints he would have discussed the matter with Sr. Joseph Conception and it is likely that he would have reported the matter to his own authorities as well.
	In her statement made on 22nd July, 1995 concerning the investigation into the activities of David Murray, Sr. Joseph Conception said that “occasionally one of the boys would complain to me that David Murray was at him.  I took this to be nagging them or a slap.  Raymond Noctor was one of the boys to complain.”
	It is clear that Mr. Noctor complained to Sr. Joseph Conception about David Murray.  However perhaps because of embarrassment or perhaps because of his inability to make himself understood or perhaps because of her lack of familiarity with the concept of child sexual abuse, she did not understand the significance of his complaint or its serious nature.  Sr. Joseph Conception is not aware of Mr. Noctor’s complaints concerning Mr. Brady.  I prefer the evidence of Sergeant Tuohy to that of Mr. Noctor concerning the second complaint about Mr. Brady alleged to have been made to Sr. Joseph Conception.  That being so I am not prepared to hold that his evidence concerning any complaint about Mr. Brady is reliable.  
	I am therefore relying on the evidence of Mr. Murphy alone in determining that serious concerns about Mr. Brady were brought to the attention of Sister Conception.  Those concerns were so serious as to cause him to resign, but unfortunately they were not investigated.  Had they been investigated it is unlikely that Mr. Brady would have been in the school and in a position to assault the plaintiff.  

6.	The liability of the 3rd named defendant for negligence and 
breach of statutory duty.	 
	The case against the third named defendant for negligence and breach of duty may be examined under the following headings:
1.	Mr. Granville and the interview with Mr. Brady.
2.	Mr. Granville and the resignation letter of Mr. Murphy.
3.	The failure to ensure that Sr. Joseph Conception was adequately trained in child care and in management.
4.	The alleged failure of the Department in discharging constitutional and statutory obligations.

6(1)      Mr. Granville and the interview with Mr. Brady.
The evidence of Sr. Joseph Conception is that Mr. Granville helped her to prepare the advertisement for the post to which Mr. Brady was appointed and that he also took part in the interview itself.  Mr. Granville disputed this and I consider his evidence on this point more reliable than that of Sr. Joseph Conception.   Firstly it was not the responsibility of the Department to employ staff for St. Joseph’s Institution so there is no reason why he should do so.  Furthermore there is no note of his participation in such interview in the departmental file.  It is also the practice in institutions where there was departmental involvement in the recruiting of staff that three people should conduct the interview and that the references should be checked out.  If the Department were involved in the recruitment of Mr. Brady it is likely that these procedures would have been followed.  Had Mr. Granville travelled to Kilkenny specifically to interview Mr. Brady it is very likely that such a visit would be noted in the departmental files made at the time.  In my view, despite suggestions to the contrary in cross examination, the records show that Mr. Granville was a diligent note-taker.  It may be that Sr. Joseph Conception is confusing the appointment of Mr. Brady with that of some of the educational staff where there was a departmental involvement in the interviewing process.  In any event I am not satisfied that there was any negligence involved in the appointment of Mr. Brady.  Even if there were such negligence I am not convinced that it had any repercussions for the present case.  There is no evidence to suggest that had Mr. Brady been interviewed by three persons, or had his interview been conducted differently, there would have been a likelihood that he would not have been taken on for the post.  He was a suitably qualified person at the time.  

6. (2)	Mr. Granville and the resignation letter
There is also a conflict of evidence between Sr. Joseph Conception and Mr. Granville concerning Mr. Murphy’s letter of resignation.  Sr. Joseph Conception’s evidence was that Mr. Grasnville, having been sent a letter by Mr. Murphy, arrived “out of the blue” to discuss its contents with her.  Mr. Murphy, however, stated in evidence that he did not send a copy of his letter of resignation to the Department.  Furthermore there is no record of such letter ever having been received by the Department and Mr. Granville says that no such letter was seen by him.  I accept the evidence of Mr. Murphy and Mr. Granville on this point.  The evidence shows that Mr. Granville had arranged by letter dated 15th December, 1976 to visit St. Joseph’s on the 24th, 25th and 26th of January, 1977 and in a letter dated 12th January, 1977 Sr. Joseph Conception had written “We will see you on 24th January D.V.”.  It is clear that the purpose of the visit was not to discuss the letter of Mr. Murphy but to conduct the annual inspection and the visit had clearly been pre-arranged.  Sr. Joseph Conception says that she invited Mr. Granville to the parlour to view the letter and that he merely commented “It is your decision”.  Her evidence was that the department knew of the letter of resignation of Mr. Murphy and that Mr. Granville visited St. Joseph’s and visited her specifically in connection with it.  If that were so it is most unlikely that he would not have a full discussion with her about it.  Furthermore, I consider it most unlikely that had he been shown the letter he would have failed to take any action on foot of it.  His evidence, which I accept, is that had he been shown such a letter he would have asked Sr. Joseph Conception for a copy of it for his superiors and asked her what she was going to do with it and that he would have realised how serious it was.  I accept as accurate his testimony that he was not aware of the letter until late in these proceedings.  In his report he merely says that Mr. Murphy resigned on Friday, 23rd January, 1977.  
It is submitted that Mr. Granville is to be faulted as being in breach of his duty to inspect and monitor St. Joseph’s in failing to inquire into the reason for Mr. Murphy’s resignation.  I cannot agree.  Although with the benefit of hindsight it is easy to surmise that had such an inquiry been made, events might well have turned out differently, I do not think it would be right to attach blame to Mr. Granville for failing to inquire into the reason for the resignation of Mr. Murphy.  His failure to so inquire must be viewed in light of the fact that neither he nor the Department had any input into the engaging or dismissal of staff in St. Joseph’s.  The manager of the institution was Sr. Joseph Conception, and those duties were hers.

6. (3)	The failure to ensure that Sr. Joseph Conception was adequately trained
	in child care and for management. 
          
 Sr. Joseph Conception is a dedicated, committed person who devoted much of her life to the service of the poor and disadvantaged of this country in a totally selfless manner.  The evidence is that she was not only respected but loved by the boys in St. Joseph’s and several witnesses have testified to her extraordinary love of and devotion to the children in her care.   She did so at a time when the support for the work she was doing was inadequate in many respects.  There was a shortage of financial support for the work; this led her to state on 14th August, 1976, “We will be unable to continue if we get no increase in capitation grant”.  Professor Gilligan’s evidence was that the State did not give enough money to provide the level of services that these institutions needed to provide and were trying to provide.  Mr. Granville agreed with that observation.  There was a serious shortage of staff which was referred to by Professor Gilligan.  He commented on the inadequacy of the nineteen care staff consisting of ten religious and nine day staff covering the number of children in the institution, particularly when the Kennedy Report recommended five or six inspectors.  Mr. Granville in fact was the only inspector.  There was a shortage of trained personnel.  Sr. Joseph Conception herself was not formally trained either in childcare or in management; this was a cause of some concern to Mr. Granville, which he expressed to his colleagues in the Department.  Mr. Granville also gave evidence that he discussed with Sr. Joseph Conception the possibility of her undertaking a childcare course and that she was reluctant to do so.  Unfortunately this was not put to her.  Mr. Granville’s evidence was also to the effect that no suitable management courses were available at the time.  It seems strange indeed that the largest such institution in the country was run by a person without any formal qualifications.  However, it must be remembered that Sr. Joseph Conception was not appointed to the course by or on behalf of the third named defendant nor was she employed by the Department of Health or Education.  It was not the function of the Department to manage the institution; that function was undertaken by Sr. Joseph Conception’s religious order.  In those circumstances the suggestion that the third named defendant should have insisted on Sr. Joseph Conception being qualified in management and/or childcare, and that he is to be faulted for failing to ensure that Sr. Joseph Conception obtained the requisite qualifications by invoking, or threatening to invoke, his statutory powers to decertify the school, is not realistic. There is no evidence whatsoever to support the view that the general level of the performance of her duties was inadequate although there were minor issues concerning her form filling and her use of psychologists and psychiatrists that were unreasonable.  Of course it would have been desirable in general terms if Sr. Joseph Conception had formal qualifications in management and in child care but, in my view, it would be unreasonable to attach blame to the Department for failure to insist on her being trained in such disciplines.  Moreover I am not persuaded on the evidence that had she had the requisite training she would have acted any differently on the receipt of the letter from Mr. Murphy.  It required no training in child care, it required no training in management to recognise the urgency and importance of Mr. Murphy’s resignation letter.  Unfortunately Sr. Joseph Conception made an error of judgment in failing to investigate the complaint of Mr. Murphy.

6. (4)	The alleged failure of the department in discharging 
statutory and constitutional obligations
The plaintiff complains that the Minister failed to make the regulations under s. 3 of the Children's Act, 1941, which provides as follows:
“The Minister may make regulations for the conduct of certified schools and in particular, and without prejudice to the generality of the foregoing, such regulations may make provision in relation to the educational training skills to persons detained in such schools and the safeguarding of the health of such persons.”
	Those are wide powers indeed.  It is submitted that the Minister was negligent in failing to make such regulations, and that the Minister is liable in negligence and was in breach of statutory duty in failing to make such regulations.  I cannot agree.  Firstly, however desirable the making of such regulations may be, there is no statutory duty imposed on the Minister to make such regulations.  Section 3 reads “may make regulations” and does not impose an obligation.  Secondly, even if the failure to make such regulations amounted to a breach of duty which gave rise to a liability, such duty could only be towards those people for whose benefit the regulations were enacted that is persons resident in the school.  Even if the incidental affect of making such regulations for the benefit of persons resident in the school were to safeguard the health of the plaintiff, it is not open to him to invoke the failure of the Minister to make regulations in order to support his case.  The plaintiff was not a person within the contemplation of the statutory powers which it is alleged the Minister had to exercise.  
The observations of the Chief Justice in Glencar Exploration v. Mayo County Council Supreme Court, Unreported, 19th July, 2001 at p. 62 concerning the plaintiff in that case also apply to the plaintiff in the present case, his
“. . .  position in contrast to that of the plaintiffs in both Siney and Ward v. McMaster, in each case, they belong to a category of persons for whose benefit a particular statutory framework had been created and who might reasonably be said to have relied on the local authority in each case to take reasonable care in the exercise of the statutory powers vested in them.”

	In any event the assault on the plaintiff was not caused, contributed to or facilitated in any way by the failure of the Minister to make regulations.  There was a failure to comply with regulation 20 of the Rules made under the Childrens’ Act, 1908 which provided for quarterly medical inspections.  It is argued that had those inspections been carried out, the complaints of the boys would have become apparent and Mr. Brady’s wrongdoing would have been exposed.  I consider that it is highly speculative to suggest that a medical examination would have brought to light Mr. Brady’s wrongdoing or potential to harm the children; it has not been proven in the balance of probabilities.  The fact is that, despite all the inadequacies in the system, the complaints of the boys were picked up relatively soon after the arrival of Mr. Brady, owing to the vigilance of Mr. Murphy.  Mr. Murphy in turn did all that was possible to have those concerns investigated.  The failure to conduct such an investigation cannot be contributed to the failure of the Department in respect of its statutory duty.
	The Kennedy Report was described by Professor Gilligan in evidence as being “some kind of blueprint for the future development of services” in the area of institutional child care.  Amongst its findings were a lack of awareness of  “the need for security and love on the part of people working in the area of institutional child care, the primary importance of training in child care, the inadequacy of staffing levels in the institution, and the inadequacy of financial provisions for such institutions and the deficiencies in the statutory inspection system under the provisions of s. 46 (3) of the Children Act, 1908.  The report stated bluntly, that: 
“The system of inspection of industrial schools and reformatories has, so far as we can judge, been totally ineffective”, 
and went on to say, 
“To allot this task to one man on a part-time basis is obviously unrealistic.”  
It recommended that there should be five or six inspectors.  The evidence of Mr. Granville was that he was the only inspector, albeit working as such on a fulltime basis, and that, despite his repeated requests, no other inspector was appointed.  He agreed that this was a wholly unsatisfactory situation and described it as “hopeless”. There was, however, no mention of sexual abuse in the report.  
Professor Gilligan gave evidence of the lack of implementation of the recommendations of the Kennedy Report and Mr. Glanville outlined some of the progress that had been made, as well as some of the reasons for delays in implementing the recommendations of the Kennedy Report.  I am not convinced of the relevance of such evidence to the present case.  Certainly there was a need for a more thorough inspection system, but this fact does not assist the plaintiff for the following reasons.  Firstly, the implementation of the report was not mandatory; secondly, the plaintiff was not a resident of the institution and therefore did not fall within the category of persons who would benefit by the appointment of more inspectors, and to whose benefit the reforms suggested in the Kennedy Report were directed.  Thirdly, there is nothing to suggest that had the report been implemented in full, it is less likely that the assault would have occurred.  The failure in this case, as has been pointed out, was not a failure of systems or procedures; it was a failure of an individual to take action where such action was clearly called for.
	The second named defendant claimed indemnity of the contribution from the third named defendant.  It was contended that the liability of the third named defendant arises out of his constitutional responsibility as set out in Article 42.5 of the Constitution which provides as follows:
“In exceptional cases where the parents, for physical or moral reasons, fail in their duty towards their children, the State as guardian of the common good by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

	I was referred to a passage in the Adoption No. 2 Bill, 1987, [1989] I.R. 656, where it was stated at p. 665:
“In the exceptional cases envisaged by that section where failure of duty has occurred the State by appropriate means shall endeavour to supply the place of the parents.  This must necessarily mean supplying not only the parental duty to education but the parental duty to cater for the other personal rights of the child.”

	Counsel argues that because many of the children were committed to St. Joseph’s following proceedings in the District Court under the Childrens’ Act, 1908, St. Joseph’s was thus acting at the behest of the State.  The second named defendants submitted that St. Joseph’s School and Sr. Joseph Conception were agents of the Department of Education and according to accepted laws of agency should be imbursed all expenses and indemnified against losses and liabilities incurred by them in the execution of their authority. (see Bowestead on Agency (17th ed.) 2001, Article 64)
	Although the provisions of Article 42.5 of the Constitution impose duties on the State where there is a failure on the part of the parents, the Article does not specify how that duty is to be exercised.  In Ireland that duty may be exercised through the mechanism of the Childrens’ Acts, 1908 and 1941.  Those Acts provide for a very clear demarcation of functions between the Minister (formerly Secretary of State) and management.  The functions of the Minister are not management functions.  The evidence was that the ownership and the management of the school was in the hands of the religious order who ran the institution.  The fact that the institution was used by the State as a means of fulfilling its constitutional obligations towards at least some of the children in the school does not automatically make the institution an agent of the State, still less an agent of the Minister for Education and Science who is the third named defendant in these proceedings.
Although Professor Gilligan accepted the proposition that there was a hierarchy of bodies with the Department at the top, St. Joseph’s in the middle and the children at the bottom in the sense that ‘ultimate responsibility for safety of the children rested with the Department’.  I cannot accept this as imposing a liability on the third named defendant in this case.  Whatever way they may be described the roles of the Department and of the managers are clearly delineated in the Children’s Act, 1908.  Although Sr. Joseph Conception stated that “We were totally accountable to the Department of Education”, this does not accurately reflect the large level of autonomy in the running of the institution given to the managers and provided for in the statutory framework.  The role of the department as described by Mr. Granville, “to certify, to inspect, and to advise” more accurately describes the reality of the situation.  In those circumstances, although it is true that Sr. Joseph Conception and her order were involved in a public service and that the support for the work in which they were involved was at times woefully inadequate both in terms of financial provision, training and expertise, I do not think that in the context of this particular case the Minister can be made liable for the assault the subject matter of these proceedings.
7.  The assessment of damages
The assessment of damages in this case causes particular problems.  Without in any way diminishing the nastiness and seriousness of any sexual assault the incident in the subject matter of the present proceedings was at the lower end of the scale of sexual abuse.  However, the consequences of the assault as set out by the plaintiff, his mother and Mr. de Valenzuela were serious and have caused a great deal of suffering to the plaintiff over a long period of time.  The plaintiff is a patently truthful witness and in no way exaggerated his suffering or symptoms.  The course of his adolescence was changed by the assault and he suffered loneliness and isolation as a result of the assault and the feelings it evoked in him.  It also had adverse effects on the development of his personality.  He suffered many bouts of depression, some of them very severe, which have been proven on the balance of probabilities to be attributable to the assault.  He also suffered from marital problems and marital unhappiness.  It may very well be that the effects of the assault contributed to the marital problems but this has not been demonstrated to the court with sufficient clarity to make him entitled to compensation for his marital difficulties.  While he is at present free from symptoms, it is true to say, in the time worn phrase that the possibility of adverse sequelae cannot be ruled out.  However, I do not think that the separate finding should be made for future pain and suffering.  Likewise I do not consider that a separate award should be made for false imprisonment in addition to damages for the assault.  I assess damages for assault and false imprisonment in the sum of €75,000 to encompass pain and suffering to date and into the future.