High Court 

W (A Minor) Suing by his Mother and next Friend, W v B

1994/43 & 3 P 

18 March 1999

BARR J: 

The Motion for Discovery of Documents which is presently before the court by way of appeal from an Order of the Master made on 30 April, 1998, arises on foot of the claim for damages made by the plaintiff against the defendant in this action in which he alleges that while a student at a primary school of which the defendant was headmaster he was sexually assaulted and abused by the defendant on diverse dates between mid-1987 and the months of September/October, 1989. 

The defendant has sought an order directing the plaintiff to make discovery on oath of all documents which are or have been in his possession or power or under his control relevant to the above entitled proceedings and specifically the following documents and records:- 

(i) complaints in writing made by the plaintiff regarding the allegations or any of them contained in the statement of claim; 

(ii) all documentation relating to his conviction of any criminal offence or prosecution in respect thereof; 

(iii) all documentation relating to his suspension or expulsion from any school or college; 

(iv) all documentation relating to his detention in any penal or reform institution, including any industrial school; 

(v) any and all medical reports and records, psychiatric reports and records and including (but not limited to) counselling notes and records relating to or touching upon the issues raised in this action or any of the complaints made by the plaintiff therein being documents which came into being from 1 January, 1981 when the plaintiff entered the said school as a pupil and 1 October, 1992 when it is believed he first consulted his solicitor about his complaints against the defendant. 

Mr Counihan, counsel for the plaintiff, recognises and accepts that the allegations made by his client against the defendant are of a grievous nature and that, if their veracity is established in evidence at the trial, judgment against the defendant would have catastrophic consequences for him in his professional, social and family life. In the defence delivered on behalf of the defendant he has denied all of the allegations made against him. It is also not in dispute that the defendant is entitled to full information about the allegations against him and as to all relevant matters relating thereto. It is also recognised that the defendant is entitled to make the best possible defence open to him in respect of such charges in accordance with law. 

The defendant's right to discovery of documentation referred to at (i) to (iv) supra is not in dispute. The area of controversy relates to documentation comprised in item (v). It is submitted that documents in the nature of medical, psychiatric or counselling reports and notes relating thereto which come into existence in connection with the treatment of alleged child sexual abuse should be regarded as privileged and outside the scope of a discovery order. Three reasons are advanced in support of that proposition. First, that there should be a free-flow of information from a person (in particular a minor) who alleges such abuse to authorities whose function is to investigate and where necessary to treat the consequences of harm to the child where found to exist. (It is conceded by Mr Counihan that this prohibition does not include any formal statement of complaint made to the police by an alleged victim). It is contended that if medical and quasi-medical records were vulnerable to discovery it would inhibit an abused child from reporting harm done to him/her by the abuser and may deprive the victim of the full benefit of professional treatment and counselling to which he/she is entitled. It is submitted that this potential harm outweighs any possible advantage which may accrue to a defendant in his defence through discovery of such records. 

Secondly, it is argued that experience from litigation relating to the sexual abuse of children has established that such victims are often reluctant to make complaints against their abusers and that reluctance to come forward should not be aggravated by perceived liability to discovery of such documents if civil proceedings are subsequently brought against the wrongdoer. 

Thirdly, there is conflict between the defendant's right to defend his good name and reputation by all means properly open to him and the plaintiff's right to the benefit of confidentiality as to the investigation of his allegations by professional carers and the remedial treatment of harm done to him by such abuse. 

I am satisfied that the foregoing submissions are not well-founded. Although the plaintiff was a minor when the action was commenced, he is now 22 years of age. He is pursuing a civil action in which he seeks damages for harm done to him by the defendant through alleged sexual wrongs committed by the latter upwards of nine years ago when he, the plaintiff, was a child. When a defendant denies such allegations and seeks to refute the case being made against him, the plaintiff's past history and all aspects of his character, personality and conduct relevant to any issue raised in the action are properly open to investigation by the accused person and that is a factor which in the interest of justice the claimant is obliged to accept. He cannot on the one hand make grievous allegations against the defendant which, if believed, will destroy his reputation and professional life and at the same time inhibit the accused person from making his defence by seeking to exclude him from potentially relevant information. The medical and quasi-medical records sought by the defendant came into existence prior to the date when the plaintiff first consulted his solicitor about his allegations against the defendant and are therefore prima facie discoverable. All or some of the documents may contain information which is helpful to the defendant in making his defence to the plaintiff's allegations. In my opinion it would be unjust to deprive him of that potential advantage. In the instant case the divulging of such documentation does not impinge upon any medical or quasi-medical treatment which the plaintiff may have received and may continue to receive since the date when he first consulted his solicitor about the complaints which are the subject-matter of this action. Mr Stewart, counsel for the defendant, is content to limit the application to such documentation which came into existence prior to the latter date and thus avoid controversy that subsequent documentation in that category might be privileged on the basis that it is related to the preparation of the plaintiff's case for trial. 

As to Mr Counihan's second submission; I do not accept that the reluctance of many children to complain about sexual abuse caused by adult persons in positions of dominance over them is contributed to by the possibility of having to disclose in related civil proceedings documentation such as that in dispute herein. In particular, no such possibility exists in the present case. 

Finally, the plaintiff, having brought civil proceedings against the defendant claiming damages for alleged sexual abuse, does not have a right to confidentiality vis-a-vis the defendant and his advisors in respect of remedial treatment of harm allegedly suffered by him on foot of such abuse prior to the date when he first consulted his solicitor in that regard. 

The defendant is entitled to an order for discovery of documents as sought in the Notice of Motion dated 23 January, 1998 including documentation relating to the matters referred to at (i) to (v) herein.