Neutral Citation: [2017] IEHC 559
THE HIGH COURT
[2013 No. 858 P.]
NIAMH MCDONALD
PLAINTIFF
AND
TOMMY CONROY, GOREY COMMUNITY SCHOOL AND DENIS BRENNAN
DEFENDANTS
JUDGMENT of Mr. Justice Robert Eagar delivered on the 9th day of October, 2017
Introduction
1. The plaintiff in this case claims that, between 2004 and 2007, the first-named defendant wrongfully, physically and sexually assaulted, falsely imprisoned and sexually abused her. At all material times the plaintiff was a schoolgirl at Gorey Community School, Co. Wexford, and the first-named defendant was a school chaplain, teacher, and priest of the Catholic Church.
2. The plaintiff claims that her personal injuries have been exacerbated by the response of the defendants, their servants and/or agents to the plaintiff’s claim.
3. The first-named defendant denies that any sexualised behaviour occurred between himself and the plaintiff. He counterclaims that the plaintiff’s claim is without foundation, is malicious and vexatious, an abuse of process, and that the plaintiff has inflicted emotional harm on him. He claims malicious falsehood. He counterclaims for damages for personal injuries.
4. The second-named defendant is a secondary school which the plaintiff claims is vicariously liable for the acts of the first-named defendant. The third-named defendant is sued in a representative capacity as an agreed nominee and representative of the Catholic Church. Similarly, the plaintiff claims that the third-named defendant is vicariously liable for the wrongs of the first-named defendant. Both the second and third-named defendants deny vicarious liability, although interestingly, the second-named defendant states that the third-named defendant is vicariously liable to the plaintiff.
5. This judgment will set out relevant evidence in chronological sequence. By moving thematically through the evidence in the case, and any evidence corroborating the position of the plaintiff or first-named defendant, the Court will move to addressing the central question of the case, namely, who in this case has told the truth. After assessing the evidence in this manner and reaching factual conclusions, the issues of the Statute of Limitations, and vicarious liability will be addressed.
Chronology of Evidence
First Meeting
6. The plaintiff states that she first met the first-named defendant when she had broken up with her boyfriend in her third year of secondary school. This was around Christmas time of 2003, when the plaintiff was 15 years old. Her parents had suggested that she go to him for a chat, as she was upset about the break-up. The first-named defendant was the school chaplain, the plaintiff’s religion teacher. She states that he was very well liked. This has been a constant theme throughout the case. The first-named defendant was held in high regard by students, the school community, by the plaintiff’s parents, and by the Gorey community. The first-named defendant admitted that the first encounter he had with the plaintiff was in her third year, and that she had given him details of sexual encounters with her boyfriend. The plaintiff’s mother’s evidence supports this. She states that she told her daughter to go chat to the first-named defendant about her break-up, because he had experience of dealing with teenagers. The plaintiff would have said ‘how would you know anything’ to her mother, and so she suggested to her daughter that the first-named defendant would be in a better position to explain things to her, and advise on how to move on. The plaintiff’s mother states that the first-named defendant was a trusted, well-respected and popular person within the community.
School Trip to Gambia
7. In transition year, in February, 2005, the plaintiff went on a trip to Gambia. This was a trip that had been established for a few years in the school, where students would bring medicines and clothes to local people. It was simultaneously a mission awareness trip. Approximately 15 students were on this trip, with two teachers, the first-named defendant, another priest, Father O’Reilly, with Father O’Reilly’s niece and her partner also in attendance.
8. The first-named defendant states that a few weeks prior to this trip, another priest, named Father Doyle had informed him that the plaintiff was a ‘psycho’. He does not elaborate on the circumstances of his receiving this information. He denies that the plaintiff presented as a vulnerable person.
9. The plaintiff states that one night in Gambia, the plaintiff, the first-named defendant and another student, Michelle O’Shea had been at dinner with the group, near to the building where they were all staying. She states that the three of them left dinner early to go to the shop and then returned to the dorms. The plaintiff states that she and Michelle O’Shea were messing in the first-named defendant’s room. They put on his clothes and some after-shave. When the rest of the group arrived back, the plaintiff states that she and Michelle were told to stop messing. It is unclear on the plaintiff’s account whether or not the first-named defendant was present in the room at this time.
10. Michelle O’Shea gave evidence and stated that the first-named defendant was in the room with them when they were messing with the shaving foam. She doesn’t remember being given out to for messing, and she doesn’t remember leaving the room and coming back in again.
11. The first-named defendant states that he and Father O’Reilly came back after dinner and found the two girls messing, wearing his clothes, and that Father O’Reilly unequivocally told them to get out, and that they left.
12. Róisín Dempsey, a teacher on the trip, states that she remembers seeing the two girls coming out of the first-named defendant’s room with shaving foam on their faces. She thought this was just a prank, that the girls were being silly.
13. Father O’Reilly doesn’t recall the girls wearing shaving foam, he just remembers seeing the two girls sitting on the first-named defendant’s bed one night, and subsequently telling them it was a private area and that they were to go back downstairs. He doesn’t recall Father Tommy being in the room at the time, he thought the girls were just messing and ‘making a French bed’.
14. The plaintiff states that on this same night, she and Michelle O’Shea were in the first-named defendant’s room. The two girls and the first-named defendant were playing the game Jenga in his room. The plaintiff states that she fell asleep on his bed. The first-named defendant was in the bed beside her. She can’t recall where Michelle O’Shea fell asleep, but she remembers that she was in the room with her. She fell asleep very late, and was fully clothed. She remembers the first-named defendant having his arm around her at some point. The first-named defendant had been drinking. She states the Michelle and herself got up early in the morning, around 5 or 6 am, and went back to their own room.
15. Michelle O’Shea’s evidence supports the plaintiff’s account. She states that they were all in the room playing Jenga on the night in question, and that the first-named defendant was drinking spirits. She states he wasn’t drunk, he was coherent. She sat on a chair in the room and didn’t go to sleep. She states that the plaintiff and the first-named defendant were in his bed together. She wasn’t happy that they were in the bed together, and she states that she didn’t want to leave the room because she didn’t want people to think that they were alone together. She states she was worried that the plaintiff would be spoken about, and she didn’t want anyone talking about her. She didn’t disclose what had happened to anyone.
16. The first-named defendant states that the allegations that he invited the two students into his room to play Jenga are outrageous. He states that he was ambushed. He states that the plaintiff got into his bed, and that he didn’t see or hear her getting into his bed. When he woke up he was startled, he jumped up, he saw Michelle in the chair, he told them it was outrageous and he ran them out of the room. He states that he ‘kicked them out of the room with gusto’. He states that he didn’t take any further steps to tell anyone about this, as he felt that he had dealt with it appropriately, and the girls had learned a valuable lesson. He dealt with it on the spot. If it had happened today, he states that he would have had the students suspended. When asked if he had told anyone else about this incident, he states that he had told Roisin Dempsey about it. He states that he told her about the two separate pranks, first, the shaving foam incident, and second, ‘the girls breaking the boundaries’.
17. Roisin Dempsey stated that she had not been told by the first-named defendant that the plaintiff had been in his bed on the Gambia trip. She recalls the first-named defendant telling her about the girls playing pranks, and having run them out of his room. She states that she cannot think of anything more serious to have happened to a teacher, than for a student to be asleep in the bed beside them. If the first-named defendant had disclosed this to her, she would have gone straight to the school principal. She states that she cannot understand why a teacher would not report this to a principal or to a student’s parents.
18. Father O’Reilly stated in evidence that the first time he knew about the incident of the plaintiff being in the first-named defendant’s bed was when the first-named defendant spoke to him about it. This was during the currency of the trial, when the first-named defendant was under cross-examination.
19. The plaintiff states that there would have been a lot of slagging going on between herself and the first-named defendant on bus trips. She states that the first-named defendant would sit in the same seat, and she would always sit behind him.
20. Michelle O’Shea states that organised trips seemed to revolve around the plaintiff and the first-named defendant. She states that she knew something was going on between them after the trip to Gambia.
21. Roisin Dempsey’s evidence corroborates this. She recalled one long bus journey during which the plaintiff was seated behind the first-named defendant. The plaintiff was leaning into him and ‘chatting an awful lot’. She states that she felt that she couldn’t interrupt the conversation.
22. The plaintiff states that after the trip to Gambia they got a bus back to the school. The first-named defendant gave her a hug, and later in a text message, he told her that this had been a special hug between them.
23. The first-named defendant states that students would have hugged him after the trip, it was possible all 16 of them gave him a hug. There was ‘euphoria’. He states he is generally a handshake man, but it was human nature to give hugs after the experience and the students were all excited when they came home. He states that he never texted her that it was a special hug.
24. The plaintiff states that after the trip to Gambia, there was regular texting between them. This was in February, 2005. She states that the texting was platonic at the beginning. The first-named defendant states that students would text him about fundraising events. Any texting with the plaintiff would have been about the trip.
Photo night at the First-Named Defendant’s House
25. The plaintiff states that a photo night was organised by the first-named defendant for students after the trip to Gambia. This was held in the first-named defendant’s house, where the students shared photos of the trip. She was messing in the house on the photo night, she remembers chasing someone up and down the hall. She was also messing with tea towels, and she ended up in the utility room with the first-named defendant. They were hiding from other people. She remembers feeling very nervous, he was standing close to her and she remembers feeling like something was going to happen. Nothing actually did happen. There was someone holding the door handle on the other side, and she felt very uncomfortable.
26. The first-named defendant states that he did host such a night for students in his house. He recalls the plaintiff chasing someone down the hall with a sweeping brush.
Trip to the Cinema after the Plaintiff’s Birthday
27. After the plaintiff’s 17th birthday, in April, 2005, she states that she, the first-named defendant and roughly four other students went to the cinema together. She states that the first-named defendant drove them home after the cinema. He brought her home last, and she went to his house first. She describes going in to his house and being in the sitting room. She states that they were both sitting on the couch, and that he kissed her. It was in an intimate kiss on the mouth. After this, he dropped her home. The first-named defendant admits that he did bring the plaintiff and her friends to the cinema. This was at the plaintiff’s request. He describes it as a post-Gambia gathering, and he did it as a kindness. He dropped the plaintiff home last. He states that today, he would never give a student his phone number. He states that in hindsight, he should not have brought the plaintiff home from the cinema, as he left himself exposed being on his own with a student.
Plaintiff’s Account of the Sexual Element of the Relationship Progressing
28. The plaintiff states that from this evening on, there was regular texting between them. She states that the texting between them was daily, back and forth, approximately 15 times a day. She started going out to his house at the weekend. The sexual element of their relationship progressed over time. She states that he initiated oral sex on her, and that this had taken place before a subsequent school trip to Cologne. After some time, she performed oral sex on him. She estimates that they met up approximately 35 times within the course of their relationship, and sexual acts were performed. Full penetrative sex was never performed, despite an attempt on one occasion. She states that the first-named defendant was unable to perform.
29. The first-named defendant denies having ever come into sexual contact with the plaintiff. He states that the plaintiff’s motives for making these complaints is that of revenge, for him not ‘going with her’, or having sex with her. He maintains that she had an obsessive crush on him.
Texting
30. The first-named defendant states that he would have texted the plaintiff about fundraising after the Gambia trip. He also states that the plaintiff, having been appointed a mentor in 5th year, would have had his mobile number for this reason. All mentors would have contacted him regarding first year students. She would have also sent on her camogie results to him.
31. Fionan Donohue, a school friend of the plaintiff’s, states that the plaintiff texted a lot in school, under the desk. He knew that she was texting the first-named defendant, because his name ‘Fionan’, would come up on the phone, and he would have been sitting beside her and not texting her. The plaintiff stated that she had the first-named defendant saved in her phone under Fionan’s name. He observed texts being sent between the plaintiff and the first-named defendant, maybe five or six times during chemistry class, which they took together in fifth year.
Trip to Cologne
Night in the Field in Cologne
32. The plaintiff attended on a trip to Cologne in August, 2005 organised by the first-named defendant for students in her school. On one night, they hiked to a field to hear mass being said by the Pope. The plaintiff states that herself and the first-named defendant slept under her sleeping bag that night, that it opened out into a duvet. She states that they were holding hands underneath the sleeping bag.
33. Fionan Donohue had been on the trip to Cologne. He states that the plaintiff and the first-named defendant were inappropriately close to one another. He states that it wasn’t surprising to him that he had seen the first-named defendant and the plaintiff asleep side-by-side in the field in Cologne. He has no doubts as to them sleeping together under the sleeping bag that night. There was commentary amongst the students on the trip about it. Everyone in their year was talking about this after the trip when they came back to school.
34. Michelle O’Shea states that she had been on the trip to Cologne, and that it was obvious how close the plaintiff and the first-named defendant were. She states that they slept under the sleeping bag together in the field. She states that they would have been gossiped about a lot for having shared the sleeping bag on the trip. She remembers the students joking about how the first-named defendant hadn’t forgotten a sleeping bag, he had come completely unprepared. She remembers the first-named defendant making a joke that it was like the Titanic in the field, that there were bodies everywhere.
35. Esther Kavanagh, a community worker who came on the trip under the invitation of the first-named defendant, stated that she did not see the plaintiff and the first-named defendant under a sleeping bag together. She does not think it could have happened without her seeing it.
36. Fionan Donohue observed that the plaintiff was texting a large amount in Cologne. Michelle O’Shea states that the plaintiff and first-named defendant were blatantly texting one another, constantly on the trip to Cologne. There was an issue with roaming so they would just use his phone instead of sending texts to each other. She describes the first-named defendant putting his phone down, the plaintiff would say she wanted to play a game on it, he would say, ‘oh look give me my phone’, he would pick it up and put it back down. She states that everyone had tweaked that they were talking to each other using the mobile phone. Esther Kavanagh states that she did not see the plaintiff or the first-named defendant texting each other on their phones.
37. Several students and the plaintiff were staying in a house in Cologne for the other nights of their trip. The plaintiff states she was in a room with a number of different students, and that Esther Kavanagh stayed in that room too. The first-named defendant slept in this house too, on an air mattress in the sitting-room. One night they went out and had been drinking. The plaintiff states that she had too much to drink, and was getting sick. She remembers getting sick on the floor of the bathroom of the host house. She states that the first-named defendant changed her clothes and put her into his bed with him. She states that he performed oral sex on her that night. She states that she kept quiet, because she knew that someone was asleep on the couch in the room. She got up from the mattress and went back to her own bed in the early hours of the morning. She remembers her friends laughing at her, because her knickers were hanging out over her pyjamas. She was annoyed at them for laughing at her. She would have told the other students that she had slept on the sofa, and not on the mattress with the first-named defendant. She recalls the first-named defendant telling a student who had come downstairs to go back upstairs.
38. Fionan Donohue was on the trip, and gave evidence in regard to the night in question. He states that the plaintiff was not in the room she was supposed to sleep in on and they had all been drinking. The plaintiff wasn’t in her bed when he went to sleep, and he remembers being awake when she came back into the room in the morning. He recalls coming back to the house, and the plaintiff vomiting in the toilet, and the first-named defendant assisting her. When she came back into the room the following morning, he saw that her underwear was on the wrong way. He states that one could see the back part of her underwear above the level of her pyjama bottoms. He states that the other students mocked the plaintiff and joked about her underwear being on the wrong way the following day.
39. The first-named defendant states that the plaintiff was sick on the third night in the house, and that he cleaned up the sick on the bathroom floor, and that Esther took the plaintiff from there.
40. Esther Kavanagh recalls staying in a room upstairs with several students on the trip to Cologne. The first-named defendant initially was staying in a property two-miles away, but due to her arthritis, he asked if he could stay in this house also, to help out. The host couple said this would be fine, if he slept on a mattress in the hall, as there was no other room for him. The first-named defendant’s air-mattress was outside their bedroom door. The plaintiff was the only girl staying in this accommodation. She discussed with the plaintiff if she wanted to move to the other accommodation, but the plaintiff said it was fine to stay there with them. She recalls that on the night in question, when the plaintiff was getting sick, one of the boys approached her and said that the plaintiff wasn't well, and that the first-named defendant was helping her. The student asked her would she go in and help, and she refused, as she had a delicate stomach, and was afraid of throwing up herself. She states that the first-named defendant then brought the plaintiff down to her and then she put her into bed.
41. Michelle O’Shea states that the first-named defendant told her ‘not to be getting on to Niamh’ on the night in question. She recalls this being an intense moment, outside a pub in Cologne. She states that the students were gossiping about the plaintiff and the first-named defendant. One night, she recalls the plaintiff being in the shower and two of the boys reading a text message from the first-named defendant stating that she looked well on the train that day. She remembers feeling annoyed after Germany, that everything going on was inappropriate.
42. The first-named defendant states that in hindsight it was a mistake to allow the students to drink on the trip.
43. Esther Kavanagh states that the first-named defendant gave the students permission to go drinking on the trip. She recalls one night how the plaintiff walked up to herself and the first-named defendant at the bar, and said ‘you shouldn’t be chatting up women’. She thought this was cheeky of the plaintiff at the time.
Plaintiff’s Appointment as Mentor
44. The plaintiff states that she was chosen for things because of her relationship with the first-named defendant. She was chosen to be a mentor, and was not interviewed for this position. She was chosen to go to Gambia, and chosen to go to Cologne. Fionan Donohue states that students who were well liked by the first-named defendant would be chosen to go on trips. He wasn’t chosen to go to Gambia, and the first-named defendant offered him a chance to go to Lourdes, as a way to make up for him not going to Gambia.
45. The first-named defendant stated that the plaintiff was chosen to become a mentor in 5th year, despite having played the prank in Gambia. All mentors would have had his phone number.
Driving Lessons
46. The plaintiff states that the first-named defendant gave her driving lessons on two occasions. Michelle O’Shea was present on these occasions in the car. The plaintiff’s parents did not know that he was giving her driving lessons. She didn’t tell them anything about her relationship with the first-named defendant, and she lied about where she was going.
47. Michelle O’Shea stated in evidence that she was in the car for a driving lesson in Courtown with the plaintiff and the first-named defendant. She definitely went once, and could have gone twice. She recalls sitting in the back of the car and leaning forward. The plaintiff was in the driver’s seat. The first-named defendant was in the passenger’s seat. She and the first-named defendant were trying to get the plaintiff to get the revs up and get off the clutch. They were joking about how rubbish she was at driving.
48. The first-named defendant stated that he had given the plaintiff a driving lesson in Courtown carpark. Looking back, he feels like an idiot to have done this. He states that the plaintiff had parental permission for him to take her on the driving lesson. He states that the plaintiff asked him to give her a driving lesson.
Trips in the First-named Defendant’s Car
49. The plaintiff states she went on lots of trips with groups of students in the first-named defendant’s car - trips to Westport, Dundrum shopping centre and the cinema. She states that one Christmas Eve, she and the first-named defendant exchanged gifts at his house. She gave him a Connacht rugby jersey that she had bought for him in Dundrum. He gave her a teddy and a Wexford t-shirt.
50. Fionan Donohue states that a trip was organised by the plaintiff and the first-named defendant to Dundrum shopping centre. He and two other students went. This was between the summer of 4th and 5th year. He states that the plaintiff went around to the various shops choosing clothes for the first-named defendant to buy, which was, he felt, a strange thing for a student to be doing for a teacher.
51. The first-named defendant states that he drove students home from trips at around 11 or 12 at night, and that he had done this on many occasions.
14th February, 2007
52. The plaintiff states that their relationship continued throughout her 5th year of school until the February of her leaving certificate year, in 2007. She states that the first-named defendant was worried about his job because of their relationship, and they had been fighting a lot. One day, he took her out of class, brought her to Mr. O’Sullivan’s office, and he gave her a letter. The letter stated that he wanted to have a relationship with someone he could do things with, and asked if they could remain friends.
53. The first-named defendant states that in or around December, 2006 and January, 2007 the plaintiff sent him a ferocious amount of vitriolic texts. On the 14th of February, he took her out of class. He states that they went to Mr. O’Sullivan’s office. He states that he told her to get with someone her own age. He states that he realised at this point that the plaintiff had a very serious crush on him. Her texting amounted to an absolute obsession, and this was why he had to bite the bullet and call her in. The texts were about him ignoring her, and having time for other people. She was extremely jealous of his female colleagues. He states that in the office on this occasion, the plaintiff indicated to him that she wanted to be in a relationship with him, and at this point, he told her to fuck off.
Subsequent Relations between Plaintiff and First-named Defendant
54. The plaintiff describes that she went up to the first-named defendant at her graduation mass, and asked him how he could he have been so nice about everyone, and have treated her so horribly. There was no contact between them until the end of that summer of 2007. She states that there was texting between them after this point, and they would occasionally meet up. They would meet in his house, and the activities between them would consist of oral sex and kissing. Between her J1 in the summer of 2009 and her trip to New Zealand in the summer of 2010, there was texting between them, but no sexual contact.
55. The first-named defendant states that at the graduation mass in the plaintiff’s leaving certificate year she came up to him at the altar and said 'how can you get up there and say all those nice things and treat me like the way you did'. He replied something to the effect of 'look, go and enjoy yourself' and did not engage with her any further. He states that this must have referred to him telling her to fuck off.
56. He states that he would have seen the plaintiff in Gorey out socialising in the town when she was in college. He states that he had buried the hatchet and life was moving on. He also states that he was at the plaintiff’s family home at two birthday parties in 2010, whilst the plaintiff was in university. The invitation came from the McDonald family to attend.
First Disclosure in 2010
57. The first disclosure the plaintiff states she made about her relationship with the first-named defendant was to her sisters in New Zealand in the summer of 2010. She then came home at the end of September, and told her parents and brother. At this stage, she was still very protective of what had happened between them.
58. Sinead McDonald, the plaintiff’s mother gave evidence that when the plaintiff came back from New Zealand, they had a family meal, herself, her son, her husband and her daughter. They had just finished their meal and the plaintiff burst out crying. She said she had something important to tell them and then she proceeded to tell them what had happened between herself and the first-named defendant. She said there had been sexual contact between herself and the first-named defendant whilst she’d been in school. There had been an incident in Gambia, in Cologne, and incidents that had taken place in school and at his home.
59. They were all very upset, and crying. She hugged her daughter and told her they would get her help to come to terms with this. She kept saying she was stupid, she was ashamed and embarrassed, she felt guilty. She kept saying no one will believe this. The very next morning, the plaintiff’s mother contacted One in Four counselling. They said that due to the plaintiff’s age, she would have to call them herself.
60. The plaintiff’s brother’s graduation ball was in September, 2010. The first-named defendant states that he sent the plaintiff a text that night saying:-
"According to your arrogant asshole of a brother you obviously told him things. If that's what you want to do that's fine, but maybe we should talk first."
61. The first-named defendant states that he had had a lot of difficulties with her brother in school. He found him to be ‘sneery and sly’. He states that he thinks that the plaintiff’s brother mooned in front of some of the girls on the way down a hill on one occasion. He states that he told the plaintiff that her brother had been mooning. He states that he told her this on one of her visits out to him during college.
62. He states that when he says ‘you obviously told him things’ in the text, he was referring to the conversation he had with the plaintiff about her brother. When asked what he meant by ‘if that’s what you want to do that’s fine, but maybe we should talk first’, he states that he didn’t care, he had nothing to hide. She was welcome to do so, but he wanted to be made aware of it, so she would give an accurate version of what he had told her.
Disclosure to Mr. Sweetman in 2011
63. The plaintiff states that nothing was done for a year after her first disclosure, her family was all over the place. She was in a very bad place, crying a lot, she was very depressed and had a lot of self-blame. She didn’t think anyone would believe her about what had happened, and she didn’t want to tell anyone. She felt that their relationship was her fault.
64. Sinead McDonald stated that the matter didn’t really go anywhere after the plaintiff’s initial disclosure, as a family they were waiting for the plaintiff to make the call when she felt ready. They constantly prompted her to contact a counsellor. She did meet a counsellor in UCD but he had no experience of dealing with sexual abuse cases so it didn’t go anywhere. The family moved around on eggshells that year. She states that her daughter wasn’t ready to make an official complaint for a long time. They ‘limped’ through that year.
65. She states that she told the plaintiff in around April or May that she would not go to her graduation until she got help. Then at a family gathering she overheard the plaintiff asking her sister (the plaintiff’s aunt) who was a GP to give her the name of a counsellor. This was in June, 2011. The plaintiff got an appointment with Ms. Gilliland at the start of September. This counsellor suggested that her parents also attend. She told them that it had to be reported to the school. She suggested, because of how close they were to the school, was there anyone like an ex principal they could talk to, to guide them through the process.
66. The plaintiff’s parents went to Mr. Sweetman, an ex-principal of the school who had retired in 2009. She and her husband met him on the 17th of October, 2011, at his home. Mr. Sweetman then reported the complaint to the school. Mr. Finn, the principal of the school, then came to their family home on Friday the 21st of October. Mr. Finn took notes of the meeting and then told them it would be passed on to the HSE. They received a letter from the school to that effect, that there would be an inquiry conducted by the school and the HSE, two in tandem. The plaintiff met Mr. Sweetman on her own in his family home a few weeks after that on a Saturday. The plaintiff later met Mr. Finn in the café at Springmount nursery.
67. The first-named defendant states that he sent a text after he had been notified of the disclosure by the plaintiff’s parents to Mr. Sweetman of the plaintiff’s allegations saying:-
'Will you stop texting SHIT about me and a married ex. I have no married ex'.
Alleged injuries
68. The plaintiff alleges she has suffered injuries as a direct consequence of the negligence, breach of duty and tortious acts of the first-named defendant. The nature of her injuries are complex, and may be permanent. She has attended counsellors and psychiatrists and is currently on anti-depressants and anxiety medication. She states that the visits to the doctor, and her being on medication are all related to the events she has discussed in court - she was never an anxious person before all this happened. She states that she had low self-esteem as a teenager, but this was part and parcel of normal adolescence. Now, she states she has very low self-esteem, and is very anxious. Going to court was not her first choice, and she states that it is the hardest thing she has ever had to do. She has found it very difficult to accept what went on between herself and the first-named defendant. She has experienced suicidal ideation.
69. Dr. Cryan assessed the plaintiff at the end of August, 2012. She is a consultant psychiatrist. She opined that the plaintiff was suffering from a recurrent depressive disorder. She further opined the plaintiff was suffering from complex post-traumatic stress disorder. In her opinion, the cause of these two disorders was the illicit and secret relationship which the plaintiff had had with the first-named defendant.
70. The plaintiff also went to Dr. Paul O’Connell earlier this year for an assessment at the request of the school and the diocese. He suggested that she go back on medication.
Factual Conclusions
71. The plaintiff must, by the evidence adduced, discharge the burden of proof on the balance of probabilities. In other words, the plaintiff must prove that her version of events is more probable than not. Counsel on behalf of the first-named defendant further submits that the first-named defendant has disputed every matter of substance alleged against him by the plaintiff.
72. This Court finds the contrary upon assessing the evidence in this case. Matters of substance have not all been disputed by the first-named defendant. This case does not involve the mere assertion of the plaintiff being met with the simple denial of the first-named defendant. There is some undisputed evidence. This includes evidence such as:
• the fact that the plaintiff disclosed to the first-named defendant intimate details of her break-up with her boyfriend in her third year of secondary school;
• the fact that sexualised behaviour occurred in Gambia as between the plaintiff and the first-named defendant, with the plaintiff being in the bed of the first-named defendant one night;
• the fact that numerous texts were sent between them over a number of years;
• the fact that the plaintiff was in the first-named defendant’s house on several occasions;
• the fact that the first-named defendant slept in close confines with the plaintiff in the house in Cologne;
• the fact that the first-named defendant drove the plaintiff home alone after taking her and her friends to the cinema;
• the fact that the plaintiff was driven by the first-named defendant on several trips or outings;
• the fact that the first-named defendant took the plaintiff out of class on the 14th February, 2007 (on his version of events, he told her to fuck off, on her version of events, he wanted to end their relationship);
• the fact that he texted the plaintiff following her brother’s graduation “According to your arrogant asshole of a brother you obviously told him things. If that's what you want to do that's fine, but maybe we should talk first”;
• the fact that the first-named defendant texted the plaintiff following her parent’s disclosure to the school “Will you stop texting SHIT about me and a married ex. I have no married ex”.
73. This case is one that turns largely on the Court’s assessment of the accuracy and truthfulness of witnesses. As counsel for the plaintiff stated, it is for the Court to assess which of the parties is telling the truth, and who is telling lies.
74. This Court has regard to the judgment of Charleton J. in F.W. v. J.W.(Unreported High Court, Charleton J., 18th December, 2009). It was stated by Charleton J.:-
“In any case the tribunal of fact be that a judge or a jury, is required to fairly assess the accuracy and truthfulness of witnesses […] There are perhaps three usual approaches which can, when used together, assist in attempting to discover whether a witness is telling the truth about a vital issue. Firstly, a tribunal of fact will often look to the detail with which a narrative is presented. Bearing in mind that lies can disguise the absence of truth in an account, the fact-finder may bear in mind that a narrative lacking in truth is less likely to be discovered if detail is kept to a minimum. Where two or more witnesses are conspiring to tell lies, the closer they keep to a simple narrative, the less likely they are to be discovered. Truthful witnesses often produce surrounding details that are unrelated to the core events and which may constitute spontaneous observations on surrounding circumstances and events. To this, a caution should be added. Those who have suffered and experienced the horrible trauma of sexual abuse may find themselves overwhelmed by emotion and therefore unable to produce anything but a core account of the narrative: the court has observed that many times in sexual violence criminal trials. Secondly, the fact-finders often look to see whether the witness appears to be reliving events in answering questions, or merely consulting their memory. Psychologists tend to call this appropriate affect. This, however, can be acted and it is dangerous to imagine that a mere view of the demeanour of a witness can always uncover the truth. In Shakespeare's play Macbeth, Duncan says about the deceitful main character: "There's no art to find the mind's construction in the face: he was a gentlemen on whom I built an absolute trust". Finally, as has been emphasised in previous caselaw, the relationship of the contested facts to all the relevant circumstances otherwise proved in the case can be crucial. Having a witness available who saw part of what occurred, or who is in a position to place two people together, or to put them apart, at a particular time, can be very important while circumstances such as the layout of a room or the conduct of an accused or accusing party before or after an event can be crucial [this Court’s emphasis]. Again, as in all human circumstances, this test is subject to deceit. Sexual violence generally takes place in private and is sustained by concealment, very often by threats to the victim which exploit the tendency of the child to comply with adult authorities.”
75. This Court finds that the plaintiff’s evidence in this case was coherent, consistent and credible. She gave an account of the confused feelings she had towards the first-named defendant. She found herself under great emotional pressure and was suffering from depression around the time of her first disclosure to her sisters of the relationship between herself and the first-named defendant.
76. I accept her evidence that she felt that no-one would believe her. I accept that this was why she found it difficult to report to the authorities what had happened for a year after making a disclosure to her family. I accept the characterisation of her family ‘limping’ through the year, and ‘walking on eggshells’ around her, in that they were trying their best to support her through a difficult time.
77. The proposition of the first-named defendant, that the plaintiff has brought this case out of a lust for revenge, for him refusing to ‘go with her’, or have sex with her, in my view is wholly unconvincing. It does not accord with logic, or with his behaviour. If the first-named defendant had been notified that the plaintiff was a ‘psycho’, it is inconceivable that he would permit her to develop a relationship with him, which on his evidence, involved overnight stays in foreign countries, their sleeping in close proximity to one another, their texting one another throughout her senior years of secondary school.
78. If the plaintiff’s account is to be disbelieved this Court deems it necessary to consider the plaintiff’s current condition. The plaintiff is suffering from recurrent depressive disorder and complex post-traumatic stress disorder, disorders that Dr. Cryan linked back to the plaintiff’s secret and illicit relationship with the first-named defendant. Dr. Cryan placed emphasis in her report on the events that occurred before a relationship was established between the plaintiff and the first-named defendant. She opined that they constituted acts of grooming. These included, amongst other things:
• the plaintiff’s experience in Gambia;
• the first-named defendant’s executive power in school;
• the fact that he was held in high regard by the plaintiff’s family, who recommended she talk to him following the break-up with her boyfriend, and who invited him to their family home at the plaintiff’s sisters’ joint birthday party.
79. The evidence of the independent witnesses, Fionan Donohue, Michelle O’Shea, Esther Kavanagh, and Roisin Dempsey is crucial to the plaintiff’s case in this regard. Fionan Donohue gave evidence as to the nature of the plaintiff and first-named defendant’s unusual and inappropriate relationship. He offered a first-hand account of what he saw in Cologne. Michelle O’Shea described how she felt unable to leave the plaintiff and first-named defendant alone in bed together, she didn’t want students to be gossiping about her friend. Esther Kavanagh described how the first-named defendant stayed in close proximity to the plaintiff in the host house in Cologne, and how the plaintiff made strange comments to the first-named defendant at the bar. Roisin Dempsey described being unable to interrupt the conversation between the plaintiff and the first-named defendant on a bus trip in Gambia. This Court repeats the dicta of Charleton J. in the above cited case:-
“Having a witness available who saw part of what occurred, or who is in a position to place two people together, or to put them apart, at a particular time, can be very important while circumstances such as the layout of a room or the conduct of an accused or accusing party before or after an event can be crucial.”
It may be emphasised that this Court considers these witnesses to be credible and finds their evidence on the whole to be cogent and convincing.
80. Sexual acts take place in private. Whilst certain sexual acts may never be proved, in cases where mere assertion is met by bald denial, on balance, the narrative presented by the plaintiff in this case has been corroborated by independent witnesses. It is undisputed that sexualised behaviour occurred as between the plaintiff and the first-named defendant. It goes without saying that the undisputed evidence of a school chaplain finding himself in bed with a school girl is evidence of sexualised behaviour. This evidence of sexualised behaviour has provided a picture of the developing relationship between the plaintiff and the first-named defendant.
81. The medical evidence offered by Dr. Cryan is consistent with the plaintiff’s account. She was groomed by the first-named defendant. This grooming consisted of sexualised behaviour. This Court accepts the plaintiff’s evidence that the relationship between the first-named defendant and the plaintiff developed into a sexual relationship, whilst at all material times she was a school girl.
82. In contrast with the evidence of the plaintiff, the first-named defendant’s evidence has been inconsistent and unconvincing. The Court does not accept the answers the first-named defendant gave surrounding, in particular, what happened in Gambia. I do not accept that he did not see or hear the plaintiff getting in to his bed in Gambia. I do not accept that he told the plaintiff and Michelle O’Shea that their behaviour was outrageous, and that he ran them out of the room. His behaviour surrounding the event does not support this. He maintained a relationship with the defendant after this event, and has admitted to texting her, and staying in close confines with her on the trip to Cologne.
83. Taking the first-named defendant’s evidence at its highest, this would imply that the plaintiff was displaying sexualised behaviour as a schoolgirl. If the events had had occurred as the first-named defendant said it did, there was an onus on him, as a teacher/chaplain, to report this behaviour to the school and to the plaintiff’s family. He accepted the contention when put to him that intimate sexual relations between a teacher-chaplain and a school girl would amount to an exploitative position. He accepts that such a relationship could cause lasting psychological damage to a young person.
84. The first-named defendant also stated that he had informed Roisin Dempsey, a teacher on the trip, of the plaintiff having ‘broken the boundaries’, separate to the incident where he describes the plaintiff as messing in his room, putting on shaving foam. Roisin Dempsey stated that had she been told by the first-named defendant that the plaintiff had been in his bed, she would have reported it to the school principal. It bears repeating that she could not imagine anything more serious happening to a teacher, for a student to be in their bed beside them.
85. There is independent evidence that the first-named defendant engaged in improper and sexualised behaviour with the plaintiff. The Court places emphasis on the evidence of Fionan Donohue and Michelle O’Shea surrounding the trip to Gambia and the trip to Cologne. Moreover, the texts that the first-named defendant admitted to sending to the plaintiff do not fit with his version of events.
86. The Court also has regard to the fact that the first-named defendant admitted to being in contact with several witnesses in the case whilst under cross-examination. Father O’Reilly stated that the first-named defendant came to his house within the currency of the trial to discuss the incident of the two girls being in his room in Gambia. This was whilst the first-named defendant was under cross-examination. He had been informed by this Court that he was not to discuss the case with anyone outside of court. This Court does not treat such matters lightly.
87. The first-named defendant stated that he did not discuss the evidence in the case with Father O’Reilly, and that Father O’Reilly is mistaken. Under cross-examination, the first-named defendant also admitted to texting Jonathan Reynolds, a witness in the case, the following within the currency of the trial: "Hi Jonathan, you are going to be on on [sic] Thursday. Need to meet you tomorrow at some point for a few minutes please." He admits to sending another text saying "I know you're away, but let me know when you get home as I'm going to meet you and Lynsey together, Cheers." Lynsey Sweeney was another witness who gave evidence in the case, and the first-named defendant admitted to driving to her house within the currency of the trial, whilst he was under cross-examination. I do not accept the first-named defendant’s evidence, that he did not discuss the evidence in the case with these two witnesses. I believe he was seeking to influence the witnesses in the account they should give in court.
88. My conclusion is that the plaintiff has established on the balance of probability that the first-named defendant wrongfully, physically and sexually assaulted, falsely imprisoned and sexually abused her. In line with the judgment of White J. in Walsh v. Byrne [2015] IEHC 414, this Court finds that the tort of grooming has been established. In that judgment, grooming was described as:-
“a combination of behaviour by which a child is befriended, to gain his or her confidence and trust and which includes a process by which a person prepares a child, significant adults, and the environment for abuse. The behaviour can involve many acts of individual kindness, but with the aim of gaining access to the child and maintaining the child’s compliance with the abuse and secrecy to avoid disclosure.”
89. In accordance with the evidence of Dr. Cryan, the evidence before this Court of the acts that took place as between the first-named defendant and the plaintiff constituted grooming. The mental trauma suffered by the plaintiff is not confined solely to the tortious acts of assault and false imprisonment, but also arise from the consequences of the breach of trust by the first-named defendant who played such an important role in the plaintiff’s schooling and local community.
Statute of Limitations Act 1957
90. The plaintiff submits that the relevant statutory limitation periods do not apply in her case as she was under an impairment, and was unable to litigate this claim due to her psychological injuries. Each of the defendants pleads that the plaintiff’s claim is statute barred. Accordingly, the Court must determine whether the plaintiff was under a disability, as defined in the Statute of Limitations (Amendment) Act, 2000.
91. In line with the dicta of Ryan J. in Doherty [A. P. U. M.] v. Quigley [2011] IEHC 361, the Court holds that the plaintiff in this case has suffered a serious psychological injury, within the meaning of section 48A, such that her capacity to sue has been “substantially impaired”. The Court accepts the evidence of the plaintiff, that she struggled to reveal the relationship to her family, and that after her initial disclosure, she did not feel ready to make a further disclosure to the authorities. She gave evidence that whilst as a student at UCD in the period between 2010 and 2011, she went to a counsellor but he was of no assistance. She agreed to report the abuse when she felt pressure from the counsellor Kay Gilliland, that the safety of other children was at risk.
92. This Court also places emphasis on the evidence of Dr. Cryan in assessing the plaintiff’s mental capacity and ability to litigate this claim. The plaintiff has suffered from depression and anxiety, and at times experienced suicidal ideation, in considering drowning herself, or taking an overdose. The plaintiff suffered from self-blame, guilt, shame, fear of exposure. Above all, she feared that she would not be believed. Dr. Cryan opined that the plaintiff’s symptoms were consistent with her account of an illicit and secretive relationship with the first-named defendant.
93. Dr. O’Connell gave evidence on behalf of the defendants, and agreed that the plaintiff was suffering from a recurring depressive disorder.
94. The plaintiff continues to experience depressive symptoms and episodes of recurrent stress. She is currently on medication and has had cognitive behavioural therapy. She requires anti-depressants and anxiety medication.
95. The Court finds that the plaintiff is not prevented by the Statute of Limitations from bringing a claim for damages for injury as a result of the actions of the first-named defendant.
Vicarious Liability
96. The concept of vicarious liability arose in the judgment of O’Higgins, J. in Delahunty v The South Eastern Health Board and St. Joseph’s Industrial School Kilkenny and The Minister for Education and Science [2003] 4 IR 361. The central question in that judgment concerned if a tort was committed by an employee in the scope of employment, should this devolve vicarious liability onto an employer? O’Higgins J. referred to the English case of Lister v Hesley Hall Ltd [2002] 1 AC 215, which established the close connection test. In Lister, the central issue was whether the owners and managers of a school were vicariously liable for sexual abuse committed by the warden employed by them:-
“If the employer’s objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business.”
97. Vicarious liability as such can be imposed in circumstances where there is a significant connection between the possibility of risk and the wrongful conduct that arose from that risk, regardless of the intentions or wishes of the employer. Recently, in Hickey v MacGowan [2017] IESC 6, the Supreme Court upheld the decision that the Marist Order was vicariously liable for the sexual abuse of the plaintiff by a Marist Brother while attending a National School run by the Marists. In that judgment, it was held that the test of vicarious liability depends on a careful and balanced analysis of particular factual matrix of the case.
Vicarious liability of the school
98. Counsel for the plaintiff submits that there was a close connection between the work the first-named defendant was employed to do in his capacity as a teacher and school chaplain, and the abuse he perpetrated on the plaintiff.
99. The first-named defendant’s role ought to have been subject to the control of the school, yet it appears to this Court that the first-named defendant enjoyed a large amount of executive power when it came to organising school trips, selecting mentors, and choosing to reside in close confines with students on school trips. This is supported by the evidence of the plaintiff, Michelle O’Shea and Fionan Donohue, in that students who were favourites of the first-named defendant were ‘chosen for things’. Esther Kavanagh herself was selected by the first-named defendant to attend a school trip as a ‘community leader’. The first-named defendant was the ‘leader’ of these school trips, and he abused this position of power.
100. The failure of the school to adequately monitor the behaviour of the first-named defendant allowed for the inappropriate relationship to develop into an abusive relationship between the plaintiff and the first-named defendant.
101. Mr. Finn, principal of the school agreed that a sexual relationship between a teacher and a student was wrong; he agreed that it would breach the duty of care owed to the student; it would be a breach of duty and he agreed that psychological damage could be foreseen. He agreed that if the conduct as alleged had taken place, this would amount to “a breach of boundaries.”
102. The abusive relationship that occurred as between the plaintiff and the first-named defendant was closely connected with first-named defendant’s role as school chaplain and teacher. It was reasonably foreseeable that students were at risk when the first-named defendant was allowed unfettered discretion in organising school trips, in selecting students who would attend such trips, in locating himself within the proximity of student’s sleeping arrangements.
103. Counsel for the plaintiff submits that the second-named defendant, its servants or agents, failed to take appropriate steps to prevent sexualised conduct between the plaintiff and the first-named defendant when the second-named defendant was put on notice of evidence of inappropriate conduct between the parties. Roisin Dempsey gave evidence that the plaintiff was talking to the first-named defendant ‘an awful lot’ on a bus trip in Gambia, yet she did not act on these observations.
104. The first-named defendant exercised his duties without accountability, and this increased the risk of harm to the plaintiff, ultimately resulting in the abuse of the plaintiff.
105. In circumstances where the first-named defendant’s duties as school chaplain gave him special opportunities to commit the tortious acts alleged, the second-named defendant should have foreseen that the intimacy and privacy of the Chaplain’s role had the potential to create risks for students. There is no evidence of any system of checks being put in place by the second-named defendant to monitor the behaviour of the first-named defendant.
106. The failure to implement a safe system of checks on the first-named defendant constitutes a negligent action on the part of the second-named defendant which caused the injuries to the plaintiff in this case. On the balance of probabilities, the plaintiff’s injuries would not have occurred but for the negligence of the second-named defendant. In all the circumstances, this Court finds that the second-named defendant was negligent and failed in it’s duty of care to the plaintiff. The Court finds that the second-named defendant as such is vicariously liable for the tortious acts committed by the first-named defendant.
Vicarious liability of the diocese
107. The plaintiff claims that the Archdiocese is vicariously liable for the sexual abuse perpetrated on the plaintiff by the first-named defendant. The plaintiff submits that there are a number of factors in this case which demonstrate a sufficiently close connection, between the first-named defendant’s status as a priest and the abuse which he inflicted on the plaintiff, to render it fair and just to impose vicarious liability for the abuse on the diocese.
108. In applying the close-connection test, the Court does not feel that the plaintiff has adequately established that the first-named defendant’s position as a priest gave him the power to exercise influence over students. Upon assessing the evidence of the case, it appears to the Court that the influence the first-named defendant had over students, his executive powers when it came to appointing the plaintiff as a mentor, and selecting her to attend on various trips with him, all arose from his position within the school as a chaplain and teacher.
109. Whilst it was held by O’Donnell J. in Hickey v MacGowan [2017] IESC 6 that in principle, it was possible to hold a religious order vicariously liable for acts of abuse committed by a Marist brother, the acts of the abuse in that case were held to be “sufficiently and closely connected to the object and mission of the order”. In that case, there was evidence that the Brother of the order had supplied teachers to the school where the abuse was perpetrated. Teaching was central to the mission of the Order. There has not been evidence of this nature in the present case.
110. The plaintiff lead no evidence as to the nature of the relationship between the first-named defendant and the bishop, or as to the nature of the relationship between school chaplains and the Roman Catholic Church more generally. This is in stark contrast to the evidence given in Hickey v MacGowan [2017] IESC 6, where extensive evidence was heard on the structure of the Marist Order, and how the structure created a close connection between the Brother and the Order, as an employee of the Order. The first-named defendant was employed by the school, and gave evidence that his wages were paid by the state. Evidence was given that the Bishop nominated the first-named defendant for his role as school chaplain, however, the Bishop maintained no active role in monitoring the first-named defendant’s performance of his role of school chaplain. In the absence of the direct employment of the first-named defendant by the Roman Catholic Church in the school as chaplain and teacher, the Court cannot find the Bishop vicariously liable for the tortious acts committed by the defendant against the plaintiff.
Damages
111. The principles which apply to awards of damages in sexual assault cases are set out in the case of M.N. v. S.M. [2005] 4 IR 461. Therein, the Supreme Court held that an award of damages must be proportionate, fair to the plaintiff and to the defendant, proportionate to social conditions, and should also be proportionate to awards made for other personal injuries. It was also correct for the courts to consider the actions of the defendant in assessing damages.
112. In Connellan v St. Kilkenny [2006] IEHC 119, O’Donovan, J. considered it reasonable, when assessing damages to include a figure to cover the costs of future medication and counselling.
113. The Court has regard to the evidence of Dr. Cryan, who stated that her prognosis regarding the plaintiff’s recurrent depressive disorder and post-traumatic stress disorder is guarded. There is a significant risk that the plaintiff’s recurrent depressive disorder will recur again. Both Dr. Cryan and Dr. O’Connell recommended that the plaintiff should consider remaining on anti-depressant medication.
Aggravated Damages
114. The plaintiff claims that her difficulties have been exacerbated by the response of each of the defendants’ in relation to her claims.
115. In O’Donnell v. O’Donnell [2005] IEHC 216, Kelly J. stated:-
“Aggravated damages are compensatory in nature and can be awarded in cases in which the injury to the plaintiff has been aggravated by malice or insolence or arrogance accompanying it.”
116. The plaintiff following her disclosures to her school has been subject to the denial by the first-named defendant of any sexualised conduct having occurred between them. This included a counterclaim in which the first-named defendant claims that the plaintiff’s allegations are an abuse of process, the cause of emotional harm to him and are malicious lies. The first-named defendant counterclaims for damages.
117. The Court finds that in accordance with the dicta of Kelly J. in O’Donnell v. O’Donnell [2005] IEHC 216, the manner in which the first-named defendant brought his counterclaim could arguably have exacerbated the plaintiff’s existing injuries.
Conclusion
118. This Court awards damages to the plaintiff in the sum of €200,000. The Court awards aggravated damages to the plaintiff in the sum of €10,000. The award of damages is against the first and second named defendants.
119. The Court is cognisant of the fact that this was a case that was run over 34 days. The plaintiff stated that this was the hardest thing she has ever had to do. She was challenged on her evidence by counsel for the first-named defendant and the second-named defendant, and repeatedly accused of not telling the truth. The Court commends her on her bravery in bringing this claim.
