The High Court has refused an application to remove a jury trial notice in a personal injuries case brought for a child who attended a Malahide crèche.
Mr Justice Hedigan ruled on 7 August 2015 that the child’s allegations of assault were the dominant part of the case and that the linked negligence claim did not displace the right to a jury trial.
The proceedings concern alleged assault, battery and mistreatment at Links Abington Malahide, where the child attended the “wobbler room” between October 2012 and May 2013. The judgment says footage recorded for an RTÉ Primetime investigation, filmed at the crèche in or around March 2013, showed staff yelling and swearing at, pulling, flipping, pushing and otherwise mishandling young children. The defence described the conduct as “inappropriate”. These are allegations and descriptions recorded in the judgment, not findings made in this ruling about the individual incidents.
The child’s case was brought by her mother and next friend against the two companies operating the crèche, two individuals said to have exercised significant control over its operation and staff, and the Health Service Executive, sued in its capacity as the statutory body responsible for supervising pre-school services.
The defendants sought to set aside the notice of trial by judge and jury, transfer the case to the personal injuries list for trial by a judge sitting alone, and obtain costs. The dispute turned on whether the claim was, in substance, one for intentional trespass to the person, including assault, or a negligence case about crèche management and care.
The judge considered the statutory rules governing jury trials in civil cases and a Supreme Court decision concerning claims that combined assault and other causes of action. He concluded that the negligence allegations arose from, and were closely linked to, the alleged assaults, with damages claimed in respect of the same act or omission.
The court refused the application to set aside the jury trial notice. The judgment did not determine whether the alleged assaults or negligence occurred, decide liability or damages, or make a final order transferring the case to a judge sitting alone.