The High Court has set aside a notice for a trial by judge and jury in an employment-related damages claim involving allegations of sexual assault, harassment and victimisation.
In a judgment delivered on 22 June 2006, Ms Justice Dunne granted an application by the first named defendant to cancel the notice of trial. The ruling addressed only whether the case could proceed before a jury; it did not determine whether the allegations were true or resolve the underlying claim.
The plaintiff’s statement of claim alleged that a co-worker, the second named defendant, sexually assaulted her and that the first named defendant was vicariously liable. It also alleged breach of employment contract, negligence and a pattern of harassment, intimidation, victimisation and isolation between December 1998 and 2001. The plaintiff claimed those matters caused personal injuries and other loss. These were pleaded allegations, not findings in this judgment.
The first named defendant argued that the case included multiple causes of action and separate incidents, extending beyond the alleged assault. It submitted that the statutory exception permitting jury trials in certain cases did not apply to the wider claim. The plaintiff argued that the case was, in substance, an assault claim and that the damages sought arose from intentional acts that could fall within the exception.
The judge considered section 1 of the Courts Act 1988, which generally excludes jury trials for High Court personal injury actions based on negligence, nuisance or breach of duty. A limited exception can apply where damages are claimed for false imprisonment or intentional trespass to the person, alongside damages for another cause of action arising from the same act or omission.
Relying on the Supreme Court’s decision in *Sheridan v Kelly and McDonnell*, Ms Justice Dunne accepted that damages for assault could be claimed alongside damages under other legal headings where they arose from the same act or omission. But she found that the plaintiff’s claims went further, covering separate incidents and an alleged ongoing pattern of behaviour. Those later matters could not be treated as flowing from the alleged assaults for the purpose of the exception.
The plaintiff also argued that harassment, intimidation and victimisation could themselves amount to intentional trespass to the person. The judge was not persuaded that they came within that category, noting the lack of authority supporting the argument. She said it was unnecessary to reach a final view on whether such conduct could constitute a tort.
The order set aside the notice of trial by judge and jury. The judgment made no ruling on liability or the truth of the pleaded allegations.