The High Court has dismissed a former soldier’s claims against the Minister for Defence, Ireland and the Attorney General over sexual assaults he said were committed by a sergeant major while he was serving in the Army.
In a judgment delivered on 30 July 2007, Johnson P. found that the assaults occurred and that the plaintiff suffered post-traumatic stress disorder which substantially impaired his ability to make a reasoned decision to bring proceedings. The court therefore rejected the defendants’ limitation defence and allowed the action to proceed on that issue.
The plaintiff alleged that the first defendant fondled and exposed him on about eight occasions between 1989 and 1994 or 1995. He said the assaults caused severe distress, a breakdown in his family life and changes in his behaviour. The first defendant did not contest the allegations in court; the judge said he had been informed that the plaintiff and first defendant had reached a compromise.
The plaintiff said he had not reported the conduct while in the Army, explaining that he believed complaints would not be acted on. The court heard that he later told a former colleague, Battery Sergeant W., who said two other gunners had complained about the first defendant and had not been believed. Despite the plaintiff asking him to keep the disclosure secret, W. passed it to superior officers.
The defendants argued that the claims were out of time, that the State could not be held vicariously liable for the first defendant’s conduct, and that they had no notice of his alleged proclivities. In addressing limitation, the judge preferred the evidence of the clinical psychologist who had treated the plaintiff over time to that of the defence psychiatrist, who had examined him twice. The judge accepted the psychologist’s evidence of post-traumatic stress disorder and found the injury significantly impaired the plaintiff’s ability to bring the case.
The court then rejected the vicarious-liability claim. It considered authorities involving sexual abuse by employees in positions of care and supervision, but said those cases concerned young and vulnerable children, unlike the plaintiff, who was a married soldier when the first incident occurred. Despite the control the sergeant major had over him, the judge concluded the balance was against holding the State defendants vicariously liable.
On notice, witnesses for the plaintiff described barrack-room talk about the first defendant, while the defendants’ witnesses denied it. The judge found there had been banter and “general slagging”, but concluded it was not taken seriously enough to alert a reasonable person to the need to investigate or prevent the alleged conduct. The plaintiff had therefore not proved that the State defendants had the required notice.
The judgment dismissed the case. It did not make a finding against the first defendant, who did not contest the allegations and had reached a reported compromise with the plaintiff.