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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Doherty v Quigley [2015] IESC 54 (24 June 2015) URL: http://www.bailii.org/ie/cases/IESC/2015/S54.html Cite as: [2015] IESC 54 |
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Judgment
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THE SUPREME COURT [Appeal No. 303/2011]
Murray J.
DANA DOHERTY (A PERSON OF UNSOUND MIND NOT SO FOUND BY INQUISITION) SUING BY HER NEXT FRIEND FINTAN GALLAGHER RESPONDENT/PLAINTIFF V. MICHAEL QUIGLEY APPELLANT/DEFENDANT JUDGMENT of Mr. Justice John Murray delivered the 24th day of June, 2015
1. In these proceedings the above named plaintiff, who is the respondent in this appeal, was awarded €400,000 damages by the High Court for sexual assault and unlawful sexual intercourse with her by the appellant, which persisted over many years commencing when the respondent was 12 years old. The respondent was born in April, 1970, and the sexual assault and abuse commenced in 1982. It is common case that the last assault occurred in 1989. So far as these proceedings are concerned, a letter of claim was issued by the plaintiff in September, 2006, and she received authorisations from the Personal Injuries Assessment Board (PIAB) on 22nd February, 2007. The plenary summons initiating these proceedings was issued on 16th September, 2007. 2. It is also common case that the respondent’s claim against the appellant is statute barred by virtue of the provisions of the Statute of Limitations Act, 1957, unless the respondent was entitled, as the High Court so held, to benefit from the provisions of s.48A of that Act, as inserted by s.2 of the Statute of Limitations Amendment Act, 2000, as being a person whose ability to bring proceedings was substantially impaired by reason of the sexual abuse committed on her by the appellant. 3. The appellant appealed against the decision of the High Court on the grounds that the learned trial judge erred in fact and in law in holding that the respondent was entitled to rely on s.48A of the Act of 2000, by reason of which these proceedings were not statute barred. This Court dismissed the appeal at the conclusion of the hearing in July, 2014, having stated that it was satisfied that the learned High Court judge’s decision was correct in law and justified by the evidence which was before him. This judgment contains the detailed reasons for the Court’s dismissal of the appellant’s appeal. 4. In this appeal, the appellant did not raise any issue concerning the liability, as such, of the appellant to the respondent for the sexual assault and abuse committed on her, nor the quantum of damages. The sole issue raised by the appellant in the appeal is whether, having regard to the facts of the case, the learned trial judge was correct in law in holding that the provisions of s.48A of the Statute of Limitations Act, 1957, as amended, applied to the claim as brought by the respondent and, therefore, the action was not statute barred. The core contention of the appellant in the appeal is that the entire of the plaintiff’s claim was statute barred by virtue of the provisions of the Statute of Limitations Act, 1957, as amended. The Legal Issue However, the respondent had relied, in answer to any plea that her claim was statute barred by the effluxion of time, on s.48A of the Act of 1957, which had been inserted in that Act by s.2 of the Statute of Limitations (Amendment) Act, 2000. That inserted a new provision providing for an exception to the normal limitation period on the grounds of the disability of persons for the purpose of bringing certain actions arising out of acts of sexual abuse. The relevant provisions of that section are as follows:
48A. (1) A person shall, for the purpose of bringing an action - (a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached full age, or (b) against a person (other than the person who committed that act), claiming damages for negligence or breach of duty where the damages claimed consist of or include damages in respect of personal injuries caused by such act, be under a disability while he or she is suffering from any psychological injury that - (i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and (ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired.” 6. Central to the appellant’s appeal was his contention that the learned High Court judge erred in fact and in law in holding that s.48(A) of the 2000 Act applied, and specifically as regards his conclusion that the will or ability of the respondent to bring proceedings “was so impaired as to prevent her bringing a civil claim”. 7. It was submitted that the learned trial judge, in his analysis of this issue, ignored such matters as the fact that the respondent had reported the abuse to a local G.P. in 1990, had confronted the appellant himself on two occasions between 1990 and 1992, and had made a formal complaint to the gardaí in August, 1993, which led to the questioning of the appellant. Also, it was submitted she was the principal prosecution witness in the prosecution of the appellant in the year 2000 and in the year 2007. She had been examined on behalf of the D.P.P. on two occasions in 1998 and 2001 by Dr. Steven Clarke, who compiled reports. She had issued a press release after the second prosecution failed stating that she would prosecute a civil claim against her abuser. It was also submitted that the learned trial judge erred in fact in accepting the conclusions of Professor Browne, particularly when Dr. Clarke, on behalf of the D.P.P., had prepared a report in early 1998 in which he concluded, inter alia, that she was controlled and insightful, but at times could go into a temporary state of dissociation and fear, and suffering from intrusive memories. It is alleged that these reports, being contemporary documents in 1998, should have been relied upon, rather than Professor Browne’s assessment in and around the time of the trial. It is not entirely clear as to whether the reports of Dr. Clarke were received in evidence in the High Court, although the contents and conclusions were put to Professor Browne in cross-examination. It was also submitted that the learned trial judge should not have found as he did, since Professor Browne had admitted that the respondent did not come within the terms of s.48(A). 8. Finally, it was submitted that the trial judge was wrong in law in applying a subjective test for the purposes of determining whether the respondent’s ability to bring proceedings had been substantially impaired; that he should have applied an objective test, and on any objective test she was not so impaired, during at least a substantial part of her life between 1998 and the initiation of these proceedings in 2007. 9. In support of this submission, the appellant relied upon Whitely v. Minister for Defence [1998] 4 IR 442, and Bolger v. O’Brian 2 I.R. [1999] 431, which concerned the interpretation of s.2 of the Statute of Limitations (Amendment) Act, 1991.
Submissions of the Respondent Background Facts Concerning the Respondent 12. For the purpose of putting the issue of law in this appeal in context, and which was necessarily also the context in which the learned trial judge decided this matter, it is necessary to refer to the facts generally relating to the series of assaults and sexual abuse which the respondent endured over many years at the hands of the appellant. This can best be done by referring to the summary of the respondent’s evidence in the High Court, as set out in the judgment of the High Court, as well as extracts from the particular findings of fact in this regard by the trial judge. The purpose is to set the factual context in which the trial judge came to consider the medical evidence and determine whether s.48A applied to the respondent’s claim, and in particular whether she is a person whose ability to bring proceedings was substantially impaired by reason of the assault and abuse committed by the appellant. The appellant, of course, hotly disputed the allegations of the respondent in the High Court, but as will be seen from the relevant extracts, the learned High Court judge accepted the account given by the respondent as credible, rejecting the evidence of the appellant in this respect, and these finding of fact have not been put in issue in the appeal. 13. The learned High Court judge recorded the plaintiff’s account in the following terms:
The plaintiff was born on the 30th April, 1970 and she grew up in Letterkenny as one of a family of eight children. She and her sisters were keen Irish dancers from a very early age. The defendant was a very well known teacher of Irish dancing in the locality and he was very highly regarded. The events with which this case is concerned began when the plaintiff was twelve, but she was a pupil of the defendant for a number of years before that. She went to classes that he held in her home town of Letterkenny and remembered going to those classes from age six and upwards. There were other pupils at the classes and the plaintiff recalled that the defendant was a very physical and tactile person who was demonstrative and outgoing and apparently affectionate. She did not make a complaint that there was anything offensive about this conduct but it obviously took on a somewhat sinister aspect when viewed in retrospect in light of her complaints, assuming that those complaints are indeed justified. During this early period before the plaintiff was aged twelve years, she was thus in the care of the defendant as a teacher on a fairly frequent and regular basis when she took her lessons with the other children of her age in the classes in Letterkenny. The plaintiff remembered in particular that the defendant would ask the children to “come and give Mickey a kiss” before they left the class. But she emphasised that that was done quite openly and in the presence of parents and nothing was thought of it at the time. The plaintiff described how from the age of twelve until she was nineteen there was a gradual development of offensive sexual intimacy by the defendant in which he exploited the relationship of teacher and pupil as between her and him. It would nowadays be described as a process of grooming. She specified incidents that she recalled but she also said that sexual abuse was actually more general and was not confined to the specific episodes. The first instance she described was in August 1982. The plaintiff was attending a class given by the defendant at the Commercial Centre in Letterkenny. He had arranged for another teacher named Peader Matthews who was expert in one aspect of Irish dancing to assess his pupils and that included the plaintiff as one of his star pupils. When the assessment had taken place the plaintiff was upstairs in the Centre and the defendant took her onto his knee and stroked the area of her breasts and spoke about how her body was developing. She was unhappy and uncomfortable about that but she was reassured when a few days later she met the defendant’s wife and Mrs. Quigley said something about the plaintiff growing up or developing and she plaintiff took this to be a sort of reference back to her conversation with Mr. Quigley at the Commercial Centre. In the result the plaintiff was reassured as to the propriety of the incident that had made her uncomfortable. The defendant and his wife denied that any such incident occurred with either of them. Mr. Quigley described the arrangements in the upstairs part of the Commercial Centre, the location specified by the plaintiff, and said that it was practically impossible for the incident to have occurred as the plaintiff described because there was no unoccupied and unlocked room available in which the episode as described could have taken place. As for Mrs. Quigley, she did not recall any conversation about the child’s development such as the plaintiff had said happened and went further and said it did not happen. The plaintiff recalled an occasion in December 1982 that happened on the way back from Ramelton in Co. Donegal. She attended classes in Letterkenny on a regular basis and they were always given by Mr. Quigley. But he was in great demand and drove to other parts of the county where he gave lessons as well and it was customary for him to bring the plaintiff and other pupils - girls - to these additional classes. One of these was Ramelton where he gave a class on Friday nights. He drove there after he had taught at Letterkenny. The plaintiff said she recalled this occasion because at the time her sister Catriona was usually in the car as well when they went to Ramelton but not his time because it was her birthday and the plaintiff was on her own with the defendant. When the class at Ramelton finished they were on their way home. She said that the defendant turned off the road and kissed her and groped her upper body. The defendant flatly denies that anything of this kind happened. The plaintiff described an event that occurred when she was twelve or thirteen years old. This happened again at a time when she was in the defendant’s car travelling from an Irish dancing lesson. The incident happened at a place named Windy Hall, near Glencar in Co. Donegal. Again the car was stopped and the defendant engaged in lewd conversation. He asked the plaintiff had she ever seen a grown man’s penis. She was frightened and reacted and he backed off. The plaintiff did not suggest that he showed her his penis on this occasion but that he asked about it. She said that she wrote something into her diary that she was keeping at the time about this and one of her sisters saw it and the plaintiff was afraid as a result that her parents might hear about it and she destroyed the page. She mentioned this to Mr. Quigley when they next met and he, according to her account, did not take the matter seriously but merely said that she should or could say that she had a crush on him and that would account for the entry. Another incident is alleged to have taken place on a Friday night following the class in Ramelton, not on the journey from Ramelton to Letterkenny but later that night after the Late Late Show, when the defendant was driving the plaintiff from his home to her’s. The defendant drove off the road to a quarry area and stopped the car. He reclined the plaintiff’s passenger seat, opened her jeans and groped her pubic hair. She said that on the way back from there they passed a public house where she noticed her father’s car outside and, when she got home, she mentioned to her mother that she had seen her father’s car. Her mother asked why they had been going that way which would not have been the normal direct route and the plaintiff said that they had to do an extra message and thus covered up the defendant’s diversion to the quarry. The defendant denied this outright. A significant issue arose in relation to the lessons in Ramelton and more particularly the journey home from there. The plaintiff described how it would often happen on a Friday night that they would set off for Ramelton - she and the defendant - in the defendant’s car. After the lesson had taken place they would return to Letterkenny. She said that it was quite common for the defendant to bring her to his home where he would watch the Late Late show and then he would leave for her home after the show. Mr. Quigley and his wife denied that this had ever happened. They said that he would drive the plaintiff home first and then come home and watch the Late Late show on a Friday night. They said that it would not have been appropriate nor would it have been accepted by the Doherty parents that their daughter would be out until after the Late Late show on a Friday night. It followed, therefore, on the Quigley’s account that the incidents described by the plaintiff that took place on the Ramelton Friday nights could not have taken place as she described. The next occasion of abuse as described by the plaintiff was when she was babysitting the defendant’s daughter Alison. She said that when the Quigley’s came home and went to bed, Mr. Quigley came into the small front bedroom that she was occupying and engaged in sexual activity. She specified an occasion when she was about thirteen years of age when he did this - he came into the bedroom and took her hand and put it on his penis. She said that he came into her room on a number of occasions and gradually the sexual activity increased to the point where he would put his fingers in her vagina. Then he would return to his own bedroom. On some occasions a niece of Mrs. Quigley, Caroline McKelvey - who also gave evidence in the case - would stay over at the same time as the plaintiff. The plaintiff and Caroline slept in the double bed in the front room. On one such occasion the defendant came into the room at a time when the girls were sleeping and he groped the plaintiff under the blankets feeling about her vagina and she described how he appeared to be enjoying the discomfort that she was experiencing because Caroline was asleep beside her in bed. According to the plaintiff, the level of sexual activity continued increased. When she was around fifteen years or sixteen years of age, on a summer morning when Mrs. Quigley, a national teacher by occupation, was doing a course away from home and Alison Quigley was in the garden playing, Mr. Quigley locked the back door and took the plaintiff upstairs and engaged in sexual activity that led to him masturbating and ejaculating over the plaintiff whom he then told to have a shower and clean up. This again is totally rejected by the Quigley’s. Alison Quigley gave evidence that it did not happen and could not have happened. Mr. and Mrs. Quigley said the same. They said that there was no way that Mr. Quigley would lock the back door in any circumstances when Alison was outside. Alison was a bad asthmatic and might have suffered an attack at any time and therefore she needed to be under constant supervision. Therefore this incident simply could not have happened because there was not way that Mr. Quigley would or could have locked the back door in the circumstances. When the plaintiff was sixteen, she said, she was in the garage at the Quigley home and was having a dancing lesson from the defendant. There were wooden planks on the ground. Mr. Quigley locked the connecting door between garage and kitchen and felt around her vagina and he also removed her underpants and put them in his pocket. This left the plaintiff wearing a short dancing skirt and no underwear. Mrs. Quigley came on the scene and criticised the way she was dancing, which was because the plaintiff was afraid that Mrs. Quigley would see that she had nothing on underneath her skirt and so was dancing in a very constrained manner. She said that the defendant was getting pleasure out of witnessing her discomfort in the presence of his wife. This again was the subject of bitter dispute. The Quigley’s said that the door between garage and kitchen was never locked; indeed, they seemed to suggest that there was not even a key for it. Mrs. Quigley said that she had never expressed criticism of the plaintiff’s dancing and it is right to say that that would have been the province of Mr. Quigley and it would not have been Mrs. Quigley’s function to do so. That does not exclude the possibility that on some occasion a lesser expert might express a view, particularly if that was somebody like Mrs. Quigley who was also very familiar with Irish dancing even if not as expert as her husband. The plaintiff said that the abuse progressed to a point where Mr. Quigley got her to give him oral sex, which soon became a regular occurrence. He would stop the car and bring her head to his penis for oral sex. He could sometimes behave roughly during these encounters. He sometimes forced her head. Again Mr. Quigley flatly denied the plaintiff’s evidence. She said that he abused her every time he was in contact with her, that it became constant, once twice or three times a week, that oral sex became a regular thing at a usual place in the woods. All this continued to take place until 1989, when the plaintiff finished school and went to University in Coleraine. The plaintiff said that her feelings at the time for the defendant were complicated and confused and that a considerable element of conflicted emotion continues to be part of her life. He was her teacher. He was in loco parentis. He was expert in Irish dancing and he was widely respected in that field. She was talented and ambitious. She wanted to do well in this field and he was the means by which she could do it. She was in awe of him and she was subservient and she trusted him implicitly. She was emotionally involved with him. When he interfered with her, she became sexually aroused. She felt guilty about this and blamed herself. On her evidence, the defendant encouraged her in this belief and manipulated and exploited her immature anxiety. He preyed on it. He used her religious scruples to reinforce in her the feeling that she was unable to control her sexual urges. On the plaintiff’s account, the defendant was a cunning abuser who exploited the opportunity he had as teacher of Irish dancing with a pupil who had exceptional ability. This gave him an opportunity to be with her for long periods of time in journeys to different parts of Donegal and elsewhere and he encouraged or permitted her to become emotionally attached and even dependent on him. He deviously twisted and exploited her concerns about her physical development, her emotional attachment and her moral compass in order to satisfy his own sexual desires. The plaintiff described how she at one time wanted to follow the example of a notorious case in the world of Irish dancing, in which a teacher and his pupil developed a sexual relationship and lived a new life together away from his wife and her parents. The plaintiff discussed that with the defendant, who brushed it off. The plaintiff said that at times she felt deeply uncomfortable and upset about what was going on. She was confused in her life at school and at home and wanted to talk to somebody but that did not work out. She said that when she was aged fifteen she told her parents that she was giving up Irish dancing. They did not know anything about the abuse that was going on and they were very angry. The plaintiff, who was a good student at school, said that she deliberately failed examinations in December, 1985 and her real rationale for this was that she would thereby be able to give up Irish dancing. Her parents would think that the dancing was interfering with her studies and would more easily consent to her giving it up so that she could concentrate on school work. That, according to the plaintiff’s evidence, is what she was thinking at the time. Mr. and Mrs. Quigley came to the Doherty home and discussed the matter and were very keen that Dana should continue to do her Irish dancing. The plaintiff said that Mr. Quigley came and spoke to her in her bedroom and that he cried and said that what was going on would stop. The Quigley’s agreed that they had visited the Doherty’s on this occasion but denied that Mr. Quigley went to the plaintiff’s bedroom and he denied that he promised as the plaintiff testified or that he cried on the occasion.”
The plaintiff went on to third level education at the New University of Ulster at Coleraine where she graduated in 1992 with a degree in Irish studies. During her time as a university student she became increasingly concerned about her experiences with the defendant. She attended Dr. Maria Murray in Letterkenny and discussed the matter with her over six sessions. During this time the plaintiff became concerned that what happened to her might well be happening to other children at the hands of the defendant. She arranged to meet him and this happened in Derry in early 1991. The plaintiff wanted reassurance from the defendant that he would do something about his condition. He did not agree that he needed any treatment or counselling. She said or accused that he was a paedophile and that he had sexually interfered with her. He denied that he had sexually abused her. The plaintiff wanted the defendant to undertake a course of counselling and he agreed to do so. He further agreed that he would phone Dr. Maria Murray in Letterkenny to confirm to her that he was indeed attending the counselling that he had discussed with the plaintiff. It is agreed between the plaintiff and the defendant that this conversation took place and that following the conversation Mr. Quigley did indeed telephone Dr. Murray and give the confirmation that had been requested by Ms. Doherty. Ms. Doherty said that Mr. Quigley told her that he had been attending a priest called Fr. Stephen in Derry and he brought her to meet him. They travelled together to see Fr. Stephen and he had a separate conversation with the defendant and plaintiff. The defendant gave evidence that the meeting with Fr. Stephen happened not by special arrangement between him and the plaintiff but rather by chance. His account was that the plaintiff was looking for a lift home and called into the Derry Journal offices, where he worked, and it was Mr. Quigley’s normal practice to call to Fr. Stephen for confession on a Friday evening, which this occasion was. The result was that he went to confession with Fr. Stephen and there was some casual further conversation between Ms. Doherty and Fr. Stephen. The difference is whether the occasion was pre-arranged and specifically for the purpose of bringing Ms. Doherty to Fr. Stephen for the purpose of reassurance or otherwise or whether it was merely a relatively fortuitous encounter brought about by the fact that Ms. Doherty wanted a lift from Derry and it was a Friday evening when it was Mr. Quigley’s usual practice to go to confession with Fr. Stephen on his way home on a Friday evening. Whatever the particular arrangements whereby it happened, Ms. Doherty is correct about the visit having taken place to Fr. Stephen. Mr. Quigley agrees that he discussed with Fr. Stephen the fact that Ms. Quigley was making allegations of sexual abuse against him. Mr. Quigley agreed to phone Dr. Murray to confirm that he was going to attend a course that would be suitable for a person who had a history of sexual interference with a child and he followed up on that agreement by phoning Dr. Murray with the confirmation. The fact that Mr. Quigley did not attend any such course does not detract from the significance of his agreement to doing so and to confirm that to an independent outsider. Another incident in 1992 followed a tragedy in the Doherty family when one of the plaintiff’s siblings took his own life. The defendant and his wife and daughter called to the Doherty home to sympathise but the plaintiff would not permit the defendant to enter the house and only his wife and daughter went in. c. the Garda investigation Between 1992 and 1994 the plaintiff was at home in Letterkenny doing casual work as a substitute teacher in local secondary schools. During this time she received counselling from a Mr. Seamus Gordon extending over a period of eighteen months. He and a social worker persuaded the plaintiff to report her experiences at the hands of the defendant. On the 29th August, 1993, the plaintiff made a statement of complaint to Garda Sarah Hargadon of Letterkenny in which she related the sexual abuse that she alleged she was subjected to by the defendant in the relevant period as disclosed above. The Garda visited the defendant’s home and on the 31st August, 1993 Mr. Quigley attended at the Garda Station where he answered questions put to him by the Garda after the usual caution. The questions and answers were recorded in writing and Sgt. Hargadon, who is now retired, produced a copy of the written record. This account given by Mr. Quigley is of considerable importance in the case and I will consider it later in this judgment. Garda Hargadon submitted the file to the Director of Public Prosecutions but he decided that there would not be a prosecution. The plaintiff was devastated by this decision, as she testified. Garda Hargadon was also unhappy with it and made representations for the file to be re-examined. Meanwhile, in January 1994, the plaintiff left for the United States of America where she remained until 1997. During this time she met and married her husband who was a teacher of Irish dancing. She herself acquired a qualification to teach Irish dancing and did so with her husband in the United States. In 1995, she was at home and went to Lough Derg on a pilgrimage with her sister where she said she spoke to a priest about the abuse that the defendant had perpetrated on her. In 1997, she returned to Ireland from the US. She worked from 1997 until 2000 in the Customer Care section of Bank of Ireland at Shannon, Co. Clare. On the 12th July, 1998, the plaintiff made a second statement to Garda Hargadon, who was still pursuing the question of a prosecution of the defendant. A child protection officer, Mr Mulligan and the social worker, Mr Gordon, who had previously counselled the plaintiff, made contact to encourage her to make another statement. Sgt. Hargadon described how extremely upset the plaintiff was at the time when she made this second statement. The plaintiff confirmed this. She said that she had observed Michael Quigley at a dance competition in Ennis and became very apprehensive when she saw him with other children that he would be doing the same thing with one of them. There is no doubt according to the evidence of the Sergeant that the plaintiff was extremely emotionally upset when she made this statement. When the Sergeant resubmitted the file with the new statement the Director decided that there should be a prosecution. d. Criminal Trials 2000 & 2007 The case came on for hearing at Letterkenny Circuit Court in June 2000 and the plaintiff gave evidence. The result was a disagreement by the jury and a re-trial was ordered. The defendant obtained an order permitting him to bring judicial review proceedings to stop the re-trial. The High Court delivered judgment in 2003 rejecting Mr. Quigley’s application. He then appealed to the Supreme Court and that held the trial up for another three years. The Supreme Court delivered judgment in October, 2006. There followed a re-trial at Letterkenny Circuit Criminal Court on the 6th February, 2007, which also ended in a disagreement by the jury. The criminal matter concluded on the 24th August, 2007, when the Director entered a nolle prosequi in respect of the charges. Between the two abortive trials - June 2000 to February 2007, the plaintiff’s life proceeded. She qualified as a teacher and got a job in Ennis, Co. Clare. In 2001 her marriage broke up. She undertook counselling after that for approximately one year. In 2002 she was in Letterkenny and spent the summer of 2003 in Ennis. In the years 2004/5 the plaintiff went on a round the world trip and it was during this period in April 2004 that she met Fintan Gallagher, her partner, and she spent the summer of that year in Letterkenny. They arrived home in February or March in the year 2005. In 2005 she got a job as a teacher near Letterkenny which is the position she still holds. 3. The Civil Proceedings In March 2006, the plaintiff consulted a solicitor, who obtained authorisation from PIAB for a personal injuries claim by authorisation of the 22nd February, 2007. On the 13th December, 2007, proceedings were instituted by way of personal injuries summons in the name of Dana Doherty a person of unsound mind not so found. The statement of claim was delivered on the 12th February, 2008. The plaintiff saw Prof. Ivor Browne in October and November 2008 and he diagnosed severe post traumatic stress disorder and marked personality dissociation with the condition of frozen present which I will discuss in more detail below. The plaintiff said that she had had counselling again from Mr. Seamus Gordon during the last six months.” 15. The findings of fact of the learned High Court judge, on foot of which he decided to award damages to the respondent for the assaults and sexual abuse committed on her by the appellant, have not, as indicated at the outset, been put in issue in this appeal. Therefore, it has not been necessary to refer to the witnesses called by the respondent in support of her account, nor the evidence of the appellant, and the witnesses which he called in support contesting her account. The learned trial judge concluded:
16. It was in the context of those findings of fact and the medical evidence before him, to which the learned trial judge turned in order to consider the legal issue arising concerning the application of s.48A of the Act of 1957, and in particular as to whether the respondent could be considered to be under a disability for the purposes of that section. If so, then the claim was not statute barred. 17. Section 48A applies in the first instance to a person who brings an action founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not reached full age. That the respondent falls within that category of person is not in issue. Accordingly, the plaintiff is deemed by s.48A to be under a disability for the purposes of the Statute of Limitations Act, but only while:
(b) caused, in whole or in part, by the acts of sexual abuse, and (c) the psychological injury is of such significance that her will, or her ability to make a reasoned decision, to bring such action is “substantially impaired”. 19. In this case, the learned trial judge determined that the respondent was indeed suffering from a psychological injury caused by the sexual abuse which she endured over many years, as a result of which her ability to bring proceedings was “substantially impaired”. In reaching these conclusions he relied principally on the medical evidence. Of course, the medical evidence was given against the backdrop of the history of the sexual abuse endured by the respondent as described in her evidence before the trial judge. Medical Evidence 21. First of all, the following comprises some extracts from Professor Browne’s evidence, as outlined by the trial judge in his resume of evidence called on behalf of the respondent:
Prof. Browne said in his report that there was evidence of marked personality dissociation in Ms. Doherty. He observed that at times she would behave like an adult but then suddenly become like a small child and even refer to herself in the third person. Prof. Browne said that Ms. Doherty’s symptoms were typical of a person who had been subjected to years of repetitive sexual abuse. His diagnosis of Ms. Doherty was that she suffered from “full blown” Post Traumatic Stress Disorder (PTSD), a condition by which she remained seriously incapacitated. He said that due to the subtle and insidious conditioning to which she was subjected during her adolescence she lost volition and control over her personality. His report went on to state as follows:- “Furthermore it is essential to understand that the only way that she could survive this continuous abuse was to dissociate and to freeze the experience so that she was unable to feel the emotion which would have been appropriate to such experiences at the time they were happening. Thus Dana like so many others in this situation was observing what was going on as if it was not really happening to her. Evidence of this is to be seen in the ‘out of body’ and other depersonalised behaviours which she describes in her statements. This is the phenomenon which I have termed ‘unexperienced experience’ and which was referred to by the great French psychiatrist, Pierre Janet, over a 100 years ago as ‘unassimilated happenings’. When a person is subjected to a serious trauma, an immediate, non conscious, biological mechanism may be invoked which will suspend the experience, either partly or completely, thus blocking further integration into long term memory. It is now as if a part of the external world is within the person but not part of them. This internalised ‘stressor’ now exists outside time, in a potentially unstable state. I have referred to this as the ‘frozen present’, which may well be held in that state for years or even a lifetime.” In relation to Ms. Doherty’s delay in bringing her civil claim, Prof. Browne said that in cases such as hers a person is so incapacitated and frozen that she is unable to take any effective action at the time. He said that this had been even more difficult than usual in Ms. Doherty’s situation because of the failed legal actions brought by the State and the long delays extending over years which further devastated her personality. Prof. Browne observed that even now Ms. Doherty had only been capable of proceeding with a civil action with the support and help of her partner taking the case on her behalf. Prof. Browne expressed the view that what finally led to Ms. Doherty deciding to take the action against Mr. Quigley - which he described as a “difficult decision” - was the realisation that other girls might be at risk. In his oral testimony, Prof. Browne expanded on his report. He said that a sudden sexual interference could lead to great shock but in the case of Ms. Doherty the sexual intrusion was gradual so the shock element would be less. Nonetheless, as each episode occurred, it did lead to a feeling of shock, going on eventually to the whole question of “freezing” the experience. In these types of trauma cases Prof. Browne said he had noticed a pattern as to the process of freezing. When a traumatic event happens a raw recording of it is made but the person resists it becoming part of her long term memory. The recording is stored in the brain and when it is later triggered, when something activates it, it starts from where it left off. In other words, the recording has yet to become a memory and starts to play. … Prof. Browne’s overall clinical diagnosis was that Ms. Doherty suffered from PTSD at the severe end of the spectrum. As regards how this has affected her daily life up to and including the present, Prof. Browne expressed the view that Ms. Doherty can go about her daily business and do normal things for a large amount of time but her condition is there continuously and can be activated at any moment, at which point she will show all the disorganisation and emotion of the traumatic experience. He described it like there were two dimensions to the one person. Both of these dimensions are there at any given time, although not always apparent. Prof. Browne took the view that having seen Ms. Doherty give evidence in these proceedings, the core of her dissociation and her PTSD were still active and had not been resolved. Prof. Brown accepted that a person suffering from this condition may act normally and enjoy periods of lucidity and intellectual clarity but he said the other dimension was always there and could activate at any moment. So in the context of bringing these proceedings, Ms. Doherty could have been able to list the facts quite clearly in her PIAB claim application or through instructions to her legal representatives but it did not follow therefore that the other dimension of her personality had gone away. In cross-examination it was put to Prof. Browne that it could not be said that from the early 1990s to 2007, adopting the language of s. 48A of the Statute of Limitations Act 1957, Ms. Doherty was “substantially impaired” throughout that period, considering that she participated in two criminal proceedings, dealt with Mr. Quigley, met Mrs. Quigley, went travelling and generally carried on normal activities. Prof. Browne expressed dissatisfaction with the terms of s. 48A, which he thought was simplistic in its assumptions and did not cater sufficiently for sophisticated conditions such as dissociation. He said that when Ms. Doherty was in a rational frame, she was capable and was not impaired in bringing the action. But there were serious errors in her personality that were impaired if activated, as was evident from her testimony. Prof. Browne expressed the view that he could not answer the question with a simple “yes” or “no” as to whether her will was impaired across the board - it was not as simple as that. In the rational, ordinary part of Ms. Doherty’s personality, she was capable of making those decisions but at any time she could move into the other part of her personality and be completely incapacitated. It was put to Prof. Browne that Ms. Doherty’s behaviour did not manifest any constricted normal life insofar as she moved back to Letterkenny some time ago, she met with Mr. Quigley, she went back to dancing and to teaching. This, it was suggested, ran contrary to what he said was a feature of dissociation, namely a tendency to adopt defensive manoeuvres and avoid whole areas of life to avoid confronting anything that would remind a person of her traumatic experiences. Prof. Browne explained that in his opinion a person can make efforts to normalise her life but this can be very difficult and can come at a cost. He pointed out that there was also a loving side - namely the support of her friends and family - that would naturally draw Ms. Doherty back to Letterkenny. He said that tendencies of avoidance can co-exist with efforts to normalise life. Prof. Browne said that it was clear that Ms. Doherty was finding it extremely difficult to make her complaint regarding the abuse and it took her a long time and only after psychotherapy to make her first statement to the police, and she had said that the only reason she did so was in order to protect other children who might be harmed. Using the cognitive part of her personality she would have been capable of bringing this action earlier, but not in any easy way and it was under great strain that she eventually did so. Prof. Browne said that taking her personality as a whole there was considerable impairment but she had managed to override that enough to be able to take this case eventually. She was acting under extreme difficulty, however, and her alternative personality was tending to interfere constantly with her ability to do so. Prof. Browne told the Court that regardless of what Ms. Doherty might have said in her press release following the collapse of the criminal proceedings, when she came to see him she was very exhausted by the legal ordeal and could not go on without help. He said he thought that this was the reason why Ms. Doherty was suing through her partner in the within proceedings. Prof. Browne expressed the view that Ms. Doherty brought these proceedings with great difficulty and only because of her fear that other children were being abused.” Decision 24. In dealing with this point, the learned trial judge stated:
26. Next, I think I should deal with the submission on behalf of the appellant that the trial judge ought to have used an objective test and not a subjective test when determining, in the light of the facts he found to be established, whether or not the respondent’s ability to bring or to decide to bring proceedings was “substantially impaired” by reason by her psychological injuries. 27. I am not so sure it is at all helpful to analyse how a judge should approach the application of s.48A by examining whether it should be subjective or objective. In most cases there is an element of both when deciding mixed questions of fact and law. In any event, in this case, for the purpose of applying s.48A to the circumstances of the respondent, the learned trial judge had to be satisfied essentially that (a) she was suffering from a psychological injury, (b) caused by an act of the appellant, and (c) of such significance that her will to bring the action was substantially impaired, or her ability to make a reasoned decision to bring the act was substantially impaired. These are essentially questions of fact to be decided by the trial judge in the ordinary way on the balance of probabilities. 28. Insofar as the appellant has argued that an “objective observer” of the respondent’s conduct in the years which followed the period of abuse, and in particular the normality of so many aspects of her life, her involvement with the criminal trials, communications with the appellant, and similar matters, would conclude that she understood the gravity of her injury, as it was put, and the action which needed to be taken as regards civil proceedings, that cannot be considered to be the test for applying s.48A. Having determined that the respondent was suffering from psychological injury arising from the acts perpetrated by the appellant, the trial judge’s task then was to determine, not her understanding of the nature of the acts and the remedies available to her, but the impact of the psychological injury as regards any impairment of her capacity to take a decision to bring civil proceedings. This can only be decided having regard to the evidence before the trial judge, including the medical evidence as regards her personal situation. 29. Counsel for the appellant relied upon two authorities in particular for the proposition that, essentially, an objective test should have been applied by the trial judge. One is the case of Whitely v. Minister for Defence [1998] 4 IR 442, and the other is Bolger v. O’Brian [1999] 2 IR 431. Each of those cases concerned an interpretation of sections 2(1), (2) and 3(1) of the Statute of Limitations (Amendment) Act, 1991. These concerned provisions whereby a plaintiff’s claim for personal injuries could not be brought after the expiration of three years from the date on which the cause of action accrued, or the date of knowledge of the injury and its significance, if later, of the person injured. Section 2(1) of that Act had an express definition of a person’s knowledge for the purposes of determining his date of knowledge. Section 2(2) of that Act provided:
(a) from facts observable or ascertainable by him, or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.” (emphasis added) 31. In any event, since s.48A is concerned with the existence of a psychological injury to a plaintiff, and the effects of that psychological injury on his or her capacity to make a decision about bringing proceedings, it must, as I have already indicated, be a matter for the trial judge to determine whether the particular claimant, given her particular circumstances, has been “substantially impaired” in the manner referred to in s.48A. This is necessarily a largely subjective approach but, of course, the trial judge will inevitably have regard to objective facts and determine the weight to be accorded to them. The onus is on a plaintiff, relying on s.48A, to establish the necessary factual basis from which a trial court can properly conclude, on the balance of probabilities, that the section applies to him or her. Thus, the outcome of such an issue is governed by this essentially subjective approach, but it does not seem to me to be a fruitful exercise in this context to approach this issue by trying to break down the process of the determination by characterising the process as involving, wholly or partly, objective or subjective elements. I do not consider the appellant’s objection to the trial judge’s conclusions on the grounds that they were not based on an objective, or sufficiently objective, analysis of the facts pertaining to the respondent to be well founded. Trial Judge’s Conclusions on the Evidence 33. Counsel for the appellant referred in this Court to many aspects of the respondent’s life, career, and conduct after she left school up to the time when she wrote her letter of claim to the Personal Injuries Assessment Board in 2006, and initiated proceedings in 2007. These included the fact that she had reported the abuse to her local G.P. in 1990, that she made a formal complaint to the gardaí in Letterkenny in 1993, and that she felt able to confront the appellant himself on at least two occasions in 1990/1992 about his abusive behaviour. This included demanding that he undergo treatment to curb his paedophilia. She was able to give evidence for the prosecution in the two, unsuccessful, prosecutions against the appellant, and after the second trial she issued a statement to the media to the following effect:
34. The essential thrust of the submission on behalf of the appellant is that these factors, and other similar factors, showed that the plaintiff had in many respects led a normal life, for example, graduating from University, emigrating, returning to Ireland, going back to live in Letterkenny, taking up her career again as a teacher, and so forth, all of which in turn demonstrated that she was capable of making major decisions, including a decision to bring civil proceedings against the appellant in a timely manner, or at the very least, long before she did so in December, 2007. 35. If one leaves aside the medical evidence, there is undoubted force in the submissions made on behalf of the appellant. There are indeed many aspects of the life and career of the respondent, and of her conduct generally, which could well be taken to suggest that she was capable of taking a decision to initiate civil proceedings against the appellant long before she did in 2007. 36. But, of course, it would be quite wrong and unreal to consider these elements separate from the expert medical evidence concerning the psychological state of mind of the respondent, particularly with regard to addressing, coping with and dealing with the consequences of the acts of sexual abuse found to have been committed by the appellant against her over an extended period of years. 37. The appellant, in his submissions at various points, also referred to the fact that the respondent not only understood the gravity of her injury, but was well aware of the steps she had to take if she was to seek a remedy by way of civil proceedings. She knew, as it was put on behalf of the appellant, exactly what was required. It seems to me quite clear from the terms of s.48A that it is intended to cater for persons who are the victims of sexual abuse who may be quite aware of the time limitation imposed by statute for the bringing of a civil action, but nonetheless “his or her will” or “his or her ability to make a reasoned decision, to bring such action, is substantially impaired”, to quote from the provision itself. What the section seeks to do is to deem such a person to “be under a disability” for the purposes of the statutory limitation period, as provided in s.48A(1). Thus, the fact that such a person is aware of the relevant limitation period, and its implications, does not of itself defeat the application of the section. 38. Two fundamental facts are not in issue in this matter, namely that the respondent suffers from psychological injury, and that that injury was caused by the sexual abuse and assaults committed on her by the appellant. 39. The core conclusion in issue is, of course, whether the learned trial judge was correct in deciding that the respondent’s will, or the respondent’s ability to make a reasoned decision to bring proceedings was “substantially impaired” by reason of the psychological injury. 40. It is quite evident from the learned trial judge’s findings that he was quite conscious and took full account of all those matters referred to by the appellant concerning her career, apparent normality of her life and involvement in the criminal prosecutions when deciding that she was, nonetheless, substantially impaired in her capacity to initiate these proceedings. 41. For this purpose, I would refer to the most pertinent of his findings. 42. The learned trial judge concluded that the respondent suffered from a serious psychiatric condition in the following terms:
A specific effect of the post traumatic stress disorder that resulted from the prolonged sexual abuse is what Prof Browne called frozen present or dissociation. That causes the plaintiff to relive the abuse experience as a present event, not as a memory, nor even as a disturbing and extremely horrible memory. This specific feature of the plaintiff’s PTSD, when it was present, represented a block on her ability and her will to bring proceedings. It was not always present, which explains why Ms Doherty was able to deal with the criminal trial and eventually to institute these proceedings. But dissociation of this kind is a feature of the plaintiff’s life; it prevents or inhibits her thinking about the abusive events and gives rise to avoidance behaviour. As I understand, it is impossible to quantify the time when dissociation is present or indeed the level of intensity of the impact on thinking. It does however constitute serious impairment of psychological health with specific impact on any decision to sue Mr. Quigley. …………… The plaintiff was able to live an apparently normal life while the abuse was going on but it was having a profound effect on her, just as much lesser abusive behaviour did on Michelle McCafferty and Jacqueline Toner. The effects of her PTSD operated to make it extremely difficult for her to think about the abuse or related events and circumstances. To do so meant re-experiencing them. That was not present all the time nor, I presume, was it always at the same level of intensity. The evidence of Prof Browne is that the plaintiff’s capacity to decide to sue or to make a reasoned decision to do so was seriously interfered with when her ever-present condition was activated, which means that for such time those capacities were substantially impaired. And accepting, as I do, that those active periods were and continued to be of such duration and frequency that they interfered significantly with the relevant capacities, then it follows that the conditions of the section are fulfilled and that the plaintiff was under a disability. It seems to me that, contrary to what Counsel for the defendant have suggested, carrying on one’s life with a semblance of normality does not preclude the possibility that there may be a myriad of complex and debilitating psychological problems lurking beneath the surface. I am satisfied that this was - and remains - the case with Ms. Doherty.” 45. In the light of the foregoing considerations and the other matters referred to in his judgment, the trial judge concluded:
47. The words of s.48A, in referring to circumstances where the ability of a victim of sexual abuse to bring civil proceedings is “substantially impaired”, is clearly not suggesting that victim’s ability must be totally impaired, or indeed substantially impaired at every moment of time. There could well be short periods or a window in a person’s life where he or she might have the capacity to bring proceedings, but the underlying psychological injury which impairs the ability to bring proceedings may intervene before the opportunity to act arises. The courts have long recognised the difficulties which young victims of sexual abuse may have in making a complaint for the purposes of criminal prosecution, or even bringing civil proceedings. In P.O’C. v. D.P.P. [2000] 3 I.R. 87, at 105 (which concerned criminal proceedings), it was stated:
49. A subsidiary point made by the appellant was that Professor Browne took issue with the wording of s.48A, given the complex and severe psychological condition of the plaintiff. The learned trial judge correctly pointed out that the interpretation and application of s.48A, as a matter of law, was a matter for him, and not a medical witness whose expertise lay in explaining the psychological condition of the respondent and its implications. 50. In short, there was ample evidence before the learned trial judge which entitled him to reach the conclusions he did, namely, that the respondent’s ability to bring these proceedings prior to 2007 was substantially impaired due to psychological injury resulting from acts of sexual abuse perpetrated by the appellant. For the reasons stated, the appellant did not establish, in my view, any grounds for impugning the findings and conclusions of the learned trial judge. It is for these reasons that I concluded that the Court should dismiss the appeal. | ||||||||||||||||||||||||||||||||||||||
