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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> MacH. (J.) v. M. (J.) & Ors [2004] IEHC 32 (3 March 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/32.html Cite as: [2004] IEHC 32

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MacH. (J.) v. M. (J.) & Ors [2004] IEHC 32 (3 March 2004)

 
THE HIGH COURT

Record No. 2001 No. 9153P

Between:

J MacH

Plaintiff

And
J M, The Minister for Education and Science, T F, Ireland and The Attorney General

Defendants

Judgment of Mr Justice Michael Peart delivered the 3^rd day of March 2004:

The third named defendant, T F (hereinafter called "the applicant") brings this application on foot of a Notice of Motion dated 16^th May 2003, grounded upon his grounding affidavit sworn the 8^th May 2003. To that affidavit the plaintiff has sworn a replying affidavit on the 10^th July 2003. Two further affidavits have been sworn in support of the plaintiff's opposition to this application, namely one by Dr. Michael Loftus sworn the 18^th September 2003, and one (undated) by John F. Connolly, Consultant Psychiatrist.

The said Notice of Motion seeks the following substantive reliefs:

1. An order dismissing the plaintiff's claim against the third named defendant on the grounds of inordinate and inexcusable delay;

2. Further, and in the alternative, an order striking out the plaintiff's claim against the third named defendant on the grounds that it is statute-barred;

3. Further and in the alternative an order striking out the plea of fraudulent concealment contained in the Statement of Claim as against the third named defendant, for want of particularity and/or as an abuse of process of the Court.

Counsel for the applicant, Michael Cush SC has informed the Court that the relief sought at (2) above is not being pursued or argued at the present time. Submissions are made only in respect of paragraphs (1) and (3) thereof.

The plaintiff issued these proceedings on the 28^th June 2001, in which she claims damages for personal injuries allegedly sustained in the 1940s while she was a pupil at a National School in which the first named defendant was a teacher, and by whom she alleges she was sexually -abused over a period of one year. In short, she claims that she suffered severe emotional trauma then, and that the effects of this abuse have endured to this day, and have effectively destroyed her life. The full details of her claim are more particularly set forth in the Statement of Claim and Replies to Notice For Particulars, and there is no need for me to deal with those details in any more detail for the purposes of my judgment on the application presently before this Court for determination.

The applicant is sued in a representative capacity. Paragraph 8 of the Statement of Claim states that the National School at which the plaintiff attended "was under the management and/or control and/or supervision and/or was financed and funded by the Second, Third, Fourth and Fifth named Defendants, and/or each of them."

It is alleged, inter alia, in the Statement of Claim, that the defendants, including the applicant, are responsible for the alleged failures in supervision, control and management of the school at the material time. The basis on which the applicant has been sued is described in the Replies to Particulars dated 9^th January 2002 at paragraph 1 as follows:

"There is no allegation made against the third named defendant personally. Mr F is sued in a representative capacity and this is clear from paragraph 4 of the Statement of Claim. However, as such the applicant's predecessors in title would have been responsible for the appointment of the first named defendant to the Primary School."

In addition to any direct involvement that the applicant's predecessor may have had in the appointment of the first named defendant, it is, I am informed, also to be alleged or submitted that if the first named defendant is found to be liable for the plaintiff's injuries, the applicant would also be vicariously liable in respect of any such actions of the first named defendant which gave rise to such liability.

I have been informed on this application that as far as the applicant's involvement in the appointment of the first named defendant is concerned, the position is that the applicant's predecessor for the time being in that area would have appointed the parish priest in the village where the National School is located to be the manager of the school, and that the Parish Priest would have in turn appointed the staff to the school, including the first named defendant.

The applicant also refers to the claim against him of fraudulent concealment made at paragraph 10 of the Statement of Claim, and that no details of this claim is set forth, and submits that it is insupportable as a matter of fact, and that it is an absurd claim against the applicant, and has not been particularised in any way, as is required in the case of such a claim. Having sought particulars of this claim of fraudulent concealment at paragraph 2 of his Notice for Particulars, the plaintiff replied simply that it was a matter for evidence.

I should perhaps note at this stage that Defences have been delivered by each Defendant, including the applicant. All such Defences plead that the plaintiff's claim is statute-barred, and also plead that the plaintiff has been guilty of inordinate and inexcusable delay.

The Defence of the First named defendant states that this delay renders these proceedings an abuse of process, or in the alternative are not maintainable by virtue of the delay because of the prejudice to the First named defendant in his defence of the claim.

The Defence of the Third named defendant, the applicant herein, makes a preliminary objection that the proceedings should be dismissed on the grounds of this delay, as it would be contrary to natural and constitutional justice to require him to defend the proceedings after such delay.

The remaining defendants also plead similarly, but go on to indicate that an application to dismiss the claim on account of the delay will be made at the hearing of this action by way of preliminary application. These defendants have before me, through their Counsel, Vincent Foley SC, expressed their view that while they are supporting the application now being brought by the applicant, in a general way, they are of the view that it is preferable that the application to dismiss the plaintiff's claim against the applicant should be dealt with at the time of trial of this case, when all such applications can be dealt with. Mr Foley also drew the court's attention to the fact that as between the various defendants Notices Claiming Contribution and/or Indemnity have been served, and he submits that in such circumstances, even if this court was to accede to the applicant's application, the third named defendant would still be in the action on foot of such Notices, and nothing would be gained.

The applicant deals with the delay in this case, starting at paragraph 10 of his grounding affidavit. He states that the claim made by the plaintiff goes back some 57 years prior to the commencement of these proceedings. He states that during the decades following the alleged abuse, the plaintiff appears to have made little or no attempt to complain to anybody about what happened to her. In Replies to Particulars, the plaintiff has stated that she first complained about these matters to her mother at the age of "14 or 15 years of age". She has also stated therein that she went to the Gardaí about these matters only after she had seen a news item in July 2000 which showed the first named defendant having been convicted of sexual abuse of young children after a period of 36 years. Having located the Garda dealing with that case, she made a complaint in or around November 2000. She also consulted her solicitor for the first time in June 2001. In addition to these occasions, the Replies to Particulars refer to an occasion in 1993 when the plaintiff states that she revealed to a neighbour of hers that she had been abused while a pupil at the school, and to the fact that she has made a complaint to the Commission on Sexual Abuse in June 2000.

The applicant in his grounding affidavit has stated that this delay is both inordinate and inexcusable, and that he is prejudiced in defending the action by reason of it both in terms of records now available and in terms of witnesses who might be relevant to an investigation of the plaintiff's claim, and/or the role of the applicant's predecessor in relation to the matter.

The plaintiff's replying affidavit details the allegations of abuse, and the effect it had on her whereby she could not bring herself to tell anybody about it either at the time or afterwards. She states that she in fact tried to tell her mother about it when she was fourteen or fifteen years of age, but that her mother said she could not believe that a teacher would abuse a child and said that the teacher must have been just checking if she was wearing underwear. She also states that in fact her parents could not I fact afford to buy her underwear. Her affidavit sets out in considerable detail what she describes as the profound effect that these events had on her throughout her life. She details a long medical history of depression and nervous breakdown, hospitalisation for psychiatric problems,, an inability to develop relationships with men, and an inability to develop a career and so on.

She also states that seeing the news item to which I have referred gave her the courage to make a complaint about the abuse, and that prior that she had a residual fear caused by the abuse. She also states that the fact that she may have mentioned the abuse "on rare occasions" did not change what she describes as her "feeling of total inhibition and paralysis". She says that in these circumstances her claim is not statute barred. She also says that the third named defendant appointed and employed the first named defendant, either directly or indirectly through the Parish Priest, and as such is vicariously liable for his wrongful acts committed during the course of his employment.

The two other affidavits sworn on behalf of the plaintiff and to which I referred at the commencement of this judgment are from her medical advisers, and they describe some of her medical history, and that of Dr Loftus states that he is satisfied that until she learned of the first named defendant's conviction her psychological condition would have rendered her incapable of taking action against him or concerning her abuse.

Before proceeding further I should refer to the reference which I have just made to the plaintiff's contention that as a result of the matters set forth by her, that her claim is not statute barred. This, however, is not an application to have the claim declared statute barred. It is an application to have her claim as against the third defendant dismissed on the grounds that the delay between the events complainer of and the complaint being made, and proceedings being instituted is so long that it is contrary to natural and constitutional justice that he should be required to defend it. That is a different application altogether from an application under the Statute, and different considerations arise.

The applicant in his grounding affidavit has referred to the delay and the reasons given for it and has stated that he has sought particulars from the plaintiff in respect of her medical treatment over the years, including occasions of hospitalisation in 1975 and 1978 for depression, and to the fact that no details have been provided. He also refers to the fact that the plaintiff has not answered particulars as to specific treatment which she might have received in relation to the alleged abuse. He also refers to the absence of replies to particulars sought in relation to when she first discussed the issue of abuse with a medical practitioner. He also refers to the fact that while there is a claim that she received treatment up to 1978, there is no evidence that she has required or received treatment since that date, and that therefore she ought to have been capable of making a complaint about these matters after 1978, and reference is made to the fact that even on her own evidence and in the pleadings she appears to have mentioned the abuse to a neighbour in 1993, which is some eight years prior to the institution of these proceedings.

In the circumstances, the applicant submits, that while her delay in coming forward with her complaint may be understandable, nevertheless the fact is that the facts alleged all happened nearly sixty years ago, and that she now wishes to hold the applicant responsible for damages, and that she has been guilty of delay which he submits is both inordinate and inexcusable. He claims to be severely prejudiced as set out in his affidavit at paragraphs 23 and 24, and that it would be impossible to furnish any evidence as to the role if any which may or may not have been played by any of his predecessors in relation to the management of the school, because there are no records now available, and the vast majority of potential witnesses have since died. His affidavit concludes by saying that it is impossible for a fair trial to be conducted concerning issues of liability as between the defendants because of the lack of records going back to the 1940s.

Legal submissions:

As I have already noted, this is not an application to determine whether or not the plaintiff's action is statute-barred, even though Defences delivered have pleaded the Statute, and the Notice of Motion before the Court seeks that relief.

It is an application to dismiss the plaintiff's claim on the grounds that the inordinate and inexcusable delay by the plaintiff in making her complaint about the acts complained of, and in the commencement of these proceedings, render it unfair to the third named defendant that he should be required to defend the proceedings.

Mr Cush says that the delay is both inordinate and inexcusable, but goes on to submit that even if this Court were to find that the delay was excusable, the Court should nevertheless, and can on the basis of its inherent jurisdiction to protect fairness, dismiss the plaintiff's claim as against the applicant because of the prejudice resulting from the passage of so great a period of time from the date of the alleged acts giving rise to the claim, as already outlined. On the other hand, Mr Simon Boyle, SC for the plaintiff has submitted that before this Court can consider the overall fairness of whether the claim should be allowed to proceed against the applicant, or whether it should be dismissed, the applicant must first establish that the delay has been both inordinate and inexcusable. In other words, if this Court was to find that while the delay was inordinate, it was nonetheless excusable given the mental state of the plaintiff, and other reasons perhaps, that is an end of the matter, and the court should refuse the application, and ought not to go on and consider the matter further on the basis of general fairness or unfairness. In response to that Mr Cush has submitted that there is no authority for that proposition that the Court can shut its mind to the overall concept of fairness, even where the delay has been found to be excusable. In that regard I should just refer to a short passage from Primor plc. v. Stokes Kennedy Crowley (1996) 2 IR 459 at page 466. This passage was not specifically opened to the Court, but it appears to be relevant to this particular submission. At page 466, having referred to a passage from the judgment of Ó Dalaigh CJ in Dowd v. Kerry County Council (1970) I.R. 27, Hamilton CJ states as follows:

"From this short passage it is clear that the matters which are fundamental to the consideration of the issue are the concepts of fairness and justice, whether it is fair to the defendant to allow the action to proceed and whether it is just to the plaintiff to strike out the action.

Before these considerations can arise, it must be established that there was inordinate and inexcusable delay which would cause or be likely to cause prejudice to the defendant in the conduct of this defence to the proceedings and this undoubtedly depends on the particular circumstances of each case."

This passage appears on its face to lend some support to the submission of Mr Boyle. But the question remains whether in a case such as the present one, where the delay is pre- commencement of the proceedings, as opposed to post- commencement delay, the Primor principles are applicable, or whether the Court should confine its consideration of the matter to the principles in O'Domhnaill v. Merrick (1984) IR 151 and Toal v. Duignan (No. 2) (1991) ILRM 135, the latter principles being less exacting, in the sense that the Court was not precluded from looking at the overall fairness of the situation, even where the plaintiff was regarded as not being responsible for the delay, which I regard as another way of saying that the delay was excusable. I shall return to that subject in due course.

Mr Cush has referred the Court to the principles emerging from the Primor case to which I have already referred, and which are relevant to an application to dismiss a claim for want of prosecution. It must be said at the outset that this involved an application to dismiss based on delay by the plaintiff after the commencement of proceedings, and not delay in the commencement of the proceedings, as in the present case. But nevertheless there is a certain overlapping of those principles with the principles derived from cases such as O'Domhnaill v. Merrick, and Toal v. Duignan, which deal with pre-commencement delay. However, I believe there is good reason why there should be a difference of approach when dealing with pre-commencement delay as opposed to post-commencement delay, and that it is undesirable that the two lines of case-law should become blurred.

The Primor principles are set out as follows in the judgment of Hamilton CJ (with whom Denham J. concurred) at page 475:

(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof that the delay was inordinate and inexcusable;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to

(i) the implied constitutional principles of basic fairness of procedures;

(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action;

(iii) the delay on the part of the defendant – because litigation is a two party operation, the conduct of both parties should be looked at;

(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay;

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case;

(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant;

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.

In cases of post-commencement delay, the position is therefore quite clear. The delay must first be both inordinate and inexcusable, and only then will the court proceed further and decide whether the balance of justice favours striking out the proceedings, or allowing them to proceed. The judgment then provides clear guidelines as to how the court should go about its task of deciding that question.

In O'Domhnaill v. Merrick there was delay in the institution of the proceedings themselves, in the order of about 16 years. The claim was in respect of personal injuries to the plaintiff when she was three years of age, arising out of a traffic accident. The proceedings were commenced when she was about 20 years of age, and since she had not yet reached her majority, they were instituted within the period permitted by the Statute of Limitations. Nevertheless the defendant, the driver of the car, had received no intimation prior to the service of the proceedings that such proceedings would be instituted against her. However, in addition to the delay prior to the commencement of the proceedings, there was extraordinary delay in the prosecution of the proceedings after they were commenced. In these circumstances, Henchy J. found the delay both inordinate and inexcusable, both in respect of the pre-commencement period and the post-commencement period, and since there were no countervailing circumstances which would justify a disregard of that delay, he dismissed the proceedings on the basis that it would be an abrogation of basic fairness to allow the case to proceed to trial. That decision did not relate to a case solely of pre-commencement delay, and one cannot, in my view, assume that the decision of Henchy J. was not significantly influenced by the extraordinary and unaccounted for delay after the proceedings got under way, a delay about which Henchy J. expressed himself strongly.

Toal v. Duignan (No.2), however, is a case in which, while there was great delay in the commencement of the proceedings, since the cause of action dated back some 18 years to the time of the plaintiff's birth, they were commenced within the permitted period, and there was no inordinate delay on the part of the plaintiff after the proceedings were commenced. In other words, the delay was inordinate, but was akin to being excusable. It was held, inter alia, that the courts have an inherent jurisdiction to dismiss a claim in the interests of justice where the length of time which has elapsed between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself, and that the existence of culpable negligence on the part of the plaintiff whose claim has been delayed is of considerable relevance, but is not an essential ingredient for the exercise of the court's inherent jurisdiction to dismiss a claim. In other words, even where the delay is not inexcusable, the court can nevertheless decide in the interests of justice that a claim ought to be dismissed on the basis that it would be unfair to require a defendant to defend himself in respect of same.

A case which is factually similar to the plaintiff's claim in the present case, is Kelly v. O'Leary (2001) 2 I.R. 526. The claim arose some 50 years prior to commencement and involved a claim of negligence against the Sisters of Charity while the plaintiff was in their care at the orphanage run by them at Goldenbridge. Kelly J. had no doubt that such a delay was inordinate. He went on to decide the case on the basis of the Primor principles and chose to not decide the question as to whether there were two separate tests in respect of the different categories of delay. He applied the Primor test on the basis that it was the test which was more demanding of the defendant moving party, and was the test urged upon him by Counsel for the plaintiff. He decided on the facts of that case, that there was no evidence in the plaintiff's replying affidavit to explain or justify the delay in the commencement of the proceedings. He then went on to consider whether the balance of justice was in favour of or against the claim being allowed to proceed. He dismissed the claim.

I am of the view that there are two separate and distinct tests, one, the Primor test in respect of post-commencement delay, and the other, the Toal v. Duignan test, if I can so describe it, in respect of pre-commencement delay. First of all, the distinction reflects the different and respective contexts in which the delay took place in each case. But besides that, I am of the view that there are sound and logical reasons why the test in each instance ought to be different.

In the case of post-commencement delay, it is usually the case that the proceedings have been commenced within the period permitted by the Statutes of Limitations, although that fact of itself does not preclude a court from regarding the delay as inordinate. That would be the case, most often, with a case commenced by a plaintiff who has reached his or her majority, and within three years thereof, institutes proceedings in respect of a claim which arose sometime during his or her minority. But in most cases, the proceedings would be commenced within three years of the event giving rise to the claim, and again in most cases, a defendant would have notice of the likelihood that proceedings will be commenced before commencement. The delay giving rise to a motion to dismiss arises only out of delay in the actual prosecution of the case to trial. In the case of inordinate delay, there can be some reasons which are regarded as excusable, and others which are not. Even in the case of reasons which do not excuse or justify the delay, there will in many cases be no real or significant prejudice to the defendant. For example, in a claim for damages for personal injuries arising out of a traffic accident, there could easily, and probably often is, a delay of six months since the entry of an appearance by the defendant and the delivery of the plaintiff's statement of claim. The reason for that delay might be simply be that the plaintiff's solicitor never got round to doing it. That is an inordinate and inexcusable delay, but the court would go on and consider the balance of justice issue, and might well decide that to dismiss the plaintiff's claim would be an unnecessarily draconian consequence of that type of delay. If, on the other hand, there was a justifiable excuse for not delivering the statement of claim, it would make no sense if the court could nevertheless consider the balance of justice and perhaps dismiss the claim, in circumstances where (1) the delay was inordinate in the sense of abnormal or out of the ordinary, and (2) was excusable.

Different considerations, I suggest, arise in relation to pre-commencement delay which is inordinate and yet excusable. There can easily be circumstances in which, in such a case, the balance of justice would be in favour of dismissing the claim. For example, even if Kelly J. had in Kelly v. O'Leary, found that the delay of 50 years was excusable, he could well have reached the conclusion based on the facts and circumstances of that case, that the defendant was so prejudiced as to her ability to defend the proceedings after such a passage of time, that the claim ought not to be allowed to proceed. That inordinate and excusable delay is of such a completely different category to the Primor-type delay, that it is perfectly understandable that a different rule should apply as to how the courts should assess the significance of the delay. In my view it must follow that the Primor principles must be confined to post-commencement delay, and that the wider discretion based on general fairness regardless of whether the delay is excusable or not, should be confined to pre-commencement delay.

In the present case, there can be no doubt but that the delay of 54 years is inordinate. In order to decide whether it is excusable, it is necessary to examine whether the circumstances described by the plaintiff in her replying affidavit fulfil the task of justifying that delay in a way in which the plaintiff in Kelly v. O'Leary failed to do. In the latter case, Kelly J. was of the view that the replying affidavit contained no evidence which excused the delay.

In the present case, the evidence of the plaintiff is that she was terrified by the abuse and told nobody at the time, but that she mentioned it to her mother when she was fourteen or fifteen but that she did not believe her. She has sworn that the events had a profound effect upon her and has blighted her life ever since, and has resulted in nervous breakdowns, periods of hospitalisation, depression, an inability to work for significant periods of time, a deep distrust of men and so on. But she also says in her affidavit that in spite of treatment for her mental problems over many years, she was unable to reveal the abuse she complains of to any of her doctors, until she saw the news item to which I have already referred. She says that her residual fear of the first named defendant caused by the abuse was such that she was incapable of taking action against him. Significantly, however, there are two affidavits sworn in her support and to which I have already referred. That of Dr Michael Loftus is of assistance in relation to the justifying of the delay, as he exhibits a copy letter dated 25^th July 2003 from him to the plaintiff's solicitor, and in which he states that "the psychiatric consequences suffered as a result of the sexual abuse inflicted by J M on J were the prime reason why she was incapable of taking proceedings against him." The applicant on this motion has referred to the fact that she was able to talk to somebody about the abuse in 1993 at some centenary celebration at the school in question. I am satisfied, however, that for the purpose of this application, that fact is not sufficient to disturb the opinion of Dr Loftus that the abuse and its consequences was the cause of her not commencing these proceedings sooner. In my view that is sufficient to enable me to decide that the delay is excusable.

Under the Primor principles, that would be an end of the matter. I could not go on and decide the issue of whether in spite of the delay being excusable, the proceedings ought to be dismissed in any event because the prejudice to the applicant so outweighs the entitlement of the plaintiff to bring the claim, that the applicant should not be required to defend them. Not to be able to do so could in a particular case depending on a consideration of all the circumstances render an injustice to a defendant.

In the event of the plaintiff's claim being dismissed the prejudice to the plaintiff is obvious. It is her contention that the acts of the first named defendant are the very cause of the delay in bringing the proceedings, and her doctor has expressed the same opinion. She maintains that the applicant is vicariously liable for the liability of the first named defendant, and it is also a fact that he has pleaded guilty to offences arising out of similar behaviour, albeit not in relation to the plaintiff. If the plaintiff succeeds against the first named plaintiff, she has little prospect of recovering the amount of her damages from the first named defendant as he will not be a mark, in all probability, and accordingly, if the claim against the third named defendant is dismissed, she will not be able to make a claim against him on the basis of the vicarious liability of the applicant for the unlawful acts of the first named defendant. She submits that the third named defendant is not prejudiced in his defence of this claim on the basis of vicarious liability, because the fact of the employer/employee relationship between the applicant and the first named defendant cannot in all reality be denied successfully, and she maintains that the passage of time could not be said to have prejudiced the applicant in relation to that issue. It is, in her submission, a matter of incontrovertible fact, and a matter of law, and that the absence of records relating thereto is not a matter which should be determinative.

The applicant on the other hand submits that it is by no means clear that the applicant would automatically be held vicariously liable for the unlawful acts of the first named defendant, since he would submit that the acts complained of by the plaintiff against the first named defendant are acts not committed in the course of his employment, as they are unlawful acts not related to his position as a teacher in the school. They are simply criminal or tortious acts committed and which the legal concept of vicarious liability does not automatically cover. The Court has been referred to the decision of the House of Lords in Lister v. Hesley Hall Limited (HL(E)) [2001) 2 WLR, which in turn refers to two Canadian decisions, and it is clear that the question of automatic vicarious liability of the employer for acts of this kind on the part of a teacher is not necessarily settled once and for all. The question has also been discussed in McMahon and Binchy, Law of Torts at paragraph 43.12 et seq. In the present case, it appears at least relevant to bear in mind the fact that these acts, if proven to have occurred, took place more than 50 years ago, and the question must at least be posed as to whether, given the fact that only in the past ten years or so has our awareness of the particular problem become so sharpened, the foreseeability of injury to the plaintiff would or should be judged by today's standards in relation to the duty of care, and in particularly in the light of the decision of the Supreme Court in Glencar Exploration Limited v. Mayo County Council (2002) 1 IR 84, which has decided that a court when determining whether a duty of care arises, and whether there has been a breach of that duty, must ask itself not simply whether there existed between the parties the necessary proximity of relationship, and whether the injury was foreseeable, and whether there is any public policy consideration which ought to negative the existence of the duty of care, but must go on and ask an additional question, namely whether it is reasonable or fair that a duty of care be imposed in the particular circumstances of the case. However, I mention these matters only to indicate that in my opinion the question of prejudice, which is linked to the question of whether the applicant might be found to be vicariously liable is a difficult and complex matter, but nevertheless I am of the view that in the end it will be very much a matter of law rather than fact, and that the prejudice to the applicant in dealing with that question will not be significant, if it exists at all, and certainly could not outweigh the prejudice to the plaintiff in the event of her claim being dismissed on the grounds of delay.

The other manner in which the applicant submits he is prejudiced in his defence of this claim at this point in time is that records in the area have not revealed any record of the first named defendant being a teacher at the school at the relevant time. However, that fact is not denied in the Defence which has been delivered by the first named defendant. It is also claimed that because of the death of a number of key personnel the applicant is prejudiced in his defence of the claim of system failure at the school. Again, as I have stated, I believe that the principal and real defence of the claim of vicarious liability will be based on legal submissions regarding the question of whether the concept of vicarious liability should cover the acts complained of by the plaintiff.

The Court must also bear in mind that in spite of the passage of time, it will still be necessary for the plaintiff to prove her case on the basis of a balance of probabilities. Even if the plaintiff fails to prove her case against the applicant in respect of those matters which are beyond the claims based on vicarious liability, such as those set forth in the Particulars of Negligence in the Statement of Claim, liability on the basis of vicarious liability is going to arise for debate in the event of any liability which may be found against the first named defendant.

There is also the fact that there have been Notices of Indemnity and/or Contribution served as between the defendants, and that issue will involve the applicant being involved in the hearing of this case in any event.

Taking all of these matters into consideration I am satisfied that the balance of justice is in favour of refusing the relief sought in respect of the dismissal of the plaintiff's claim.

I am however satisfied that the failure of the plaintiff to particularise in any way the claim of fraudulent concealment pleaded at paragraph 10 of the Statement of Claim is a matter which makes it desirable that this aspect of the plaintiff's claim ought not to proceed. It is certainly a claim which cannot be made out against the applicant in any personal way, but in addition she has been asked to particularise the claim and has not done so. It is unreasonable that this part of the plaintiff's claim should be allowed to proceed, and accordingly I dismiss that part only of the plaintiff's claim against the applicant which is referred to as part of paragraph 10 of the Statement of Claim.