The High Court has refused an application to dismiss a personal injury action alleging abuse by a former Christian Brothers teacher, finding that the long delay before proceedings began did not make it clearly unfair for the second defendant to face the claim.
The plaintiff, identified as J.S., alleges that he was physically, psychologically and sexually abused while a pupil in fourth, fifth and sixth class at a primary school run by the Christian Brothers. The alleged abuse is said to have occurred between 1977 and 1979. The second defendant, identified as J.K., denied abusing the plaintiff. He admitted in general terms to using corporal punishment, including a leather strap, and to sometimes losing control, but made no admission specific to the plaintiff.
The proceedings were issued in March 2006. In February 2008, the second defendant sought dismissal for inordinate, inexcusable and unreasonable delay, or alternatively for want of prosecution. The motion was heard in January 2009. The court accepted that there had been no delay by the plaintiff in progressing the case after it was issued; the dispute concerned the period before proceedings began.
The second defendant argued that the passage of time prejudiced his ability to defend the claim, including because he did not remember the plaintiff and knew of no other witness who could assist. The plaintiff’s solicitor said the plaintiff had been aged between eight and 11 at the time, and had experienced psychological and psychiatric difficulties and alcohol dependency. The plaintiff also argued that former classmates who were present at some alleged incidents could potentially be identified through school records.
Justice Dunne said the delay in starting the proceedings was inordinate but excusable, having regard to the plaintiff’s reported psychological difficulties and alcoholism. She considered the test for delay before proceedings began distinct from the rules governing delay after a case has been issued. The question was whether there would be “a clear and patent unfairness” in requiring the second defendant to defend the action after the lapse of time.
The judge noted that the second defendant said he did not remember the plaintiff but had a general recollection of the relevant period and had made admissions about his conduct towards boys in his care. No unavailable witness was identified. The judge also considered that classmates who may have witnessed incidents could potentially be traced through school records.
The court refused the application. It did not determine whether the alleged abuse occurred or decide the underlying personal injury claim.