The High Court dismissed a woman’s civil claim alleging that her brother sexually abused and assaulted her at their family home in County Limerick between 1969 and 1972. The court held that the claim was statute barred and also dismissed it for want of prosecution. It did not decide the defendant’s application for security for costs.
The judgment, delivered by Kearns P. on 6 May 2011, concerned proceedings issued in November 2006. The plaintiff sought damages for assault, including sexual assault, battery, trespass to the person, false imprisonment, negligence and breach of duty. The defendant denied the allegations.
The defendant had been tried twice on a criminal charge of indecent assault relating to the plaintiff. A jury failed to reach a verdict at the first trial in February 2008. At the retrial in February 2009, the jury unanimously acquitted him. The civil judgment addressed the defendant’s applications to dismiss the separate civil claim; it did not determine the original abuse allegations.
The court first considered whether the plaintiff could rely on a limitation provision for claims arising from childhood sexual abuse. That provision can delay the running of time where a person suffers a significant psychological injury caused by the abuse, substantially impairing their will or ability to make a reasoned decision to bring proceedings. The judge said the evidence described physical conditions, including Arnold-Chiari Malformation and chronic obstructive pulmonary disease, but did not establish a significant psychological injury meeting that test. The court also found no evidence that the defendant caused those conditions. It concluded that the plaintiff could not rely on the provision and that the claim was statute barred.
The judge also considered the alternative application to dismiss for want of prosecution. The plaintiff had sought repeated adjournments because of health problems that prevented her from travelling from Germany to Ireland. The court noted medical reports concerning her condition, but also that she had not applied to give evidence by commission or television link. At a January 2011 call-over, no one appeared for her, and the notice of trial was struck out. A later medical report stated that she would be fit to travel in May or June that year.
The court found that the delay was inordinate and inexcusable. In weighing the balance of justice, it considered the effect of the passage of 39 to 41 years on memory and the ability to cross-examine, the damage to the defendant’s reputation, and the absence of acquiescence by the defendant. It concluded that allowing the case to proceed would be unfair. Having dismissed the claim on both grounds, the court said it was unnecessary to rule on security for costs.