The Supreme Court has set aside the dismissal of a woman’s civil claim alleging sexual abuse by her brother when she was a child, ruling that an objection over the absence of a Personal Injuries Assessment Board (PIAB) authorisation came too late because it had not been included in the defence.
The judgment, delivered by O’Donnell J. on 30 July 2014, concerned an appeal from a High Court order made after a jury had been empanelled. The defendant raised the authorisation issue shortly before trial and applied to have the case struck out. The High Court accepted the argument that it lacked jurisdiction to hear the claim and stayed its order to allow an appeal. It refused the defendant’s application for costs.
The woman’s claim alleged repeated sexual assaults, battery and trespass to the person at the family home between 1971 and 1978, when she was aged eight to 15. The defendant denied the allegations and denied that she had suffered the injuries or other losses claimed. The Supreme Court did not determine whether the alleged abuse occurred or decide the underlying claim.
O’Donnell J. held that the claim, as pleaded, sought damages for personal injuries arising from alleged assault and fell within the 2003 PIAB Act. The claim for breach of constitutional rights listed in the original summons had not been repeated in the statement of claim and was to be treated as abandoned. The court also rejected the argument that a claim based on assault or trespass to the person necessarily fell outside the Act because those torts can be actionable without proof of injury.
But the court held that the Act’s requirement for authorisation did not deprive the courts of jurisdiction. It restricted the bringing of proceedings and, in this case, the absence of authorisation had to be raised as a defence. Because the defendant had not pleaded that objection and had made no application to amend the pleadings, there was no basis to hear the application to strike out.
The Supreme Court allowed the appeal and set aside the High Court order. It did not decide the abuse allegations or direct a new trial. O’Donnell J. added that the late timing of the objection and the fact that the correct order would have been to reject the application should weigh heavily against any application to amend the proceedings at this stage.