THE SUPREME COURT
1997 No 69/99

MURPHY J
McGUINNESS J
GEOGHEGAN J

BETWEEN:

LINDA RYAN
PLAINTIFF/RESPONDENT

AND

THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS/APPELANTS

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 21st DAY OF DECEMBER, 2000 (nem. diss.)

The issue in this appeal is whether the pleadings herein raise a point of law which might be properly set down for hearing and disposed of before the trial of the action.

The question arises in this way. In her statement of claim delivered on the 27th day of May, 1997, the Plaintiff alleges that on the 2nd day of April, 1994, she was abducted and raped at Loughshinney, County Dublin. Her assailant is not a party to these proceedings. The above named Defendants are sued on the basis set out at paragraph 3 of the statement of claim, namely:- [*2]

“The said incident was occasioned, contributed to or facilitated by the acts and omissions of the Defendants, their servants or agents, which acts and omissions amounted to negligence and breach of duty.”

Under the heading “Particulars of Negligence and Breach of Duty” it is then pleaded as follows:-

“(A) 	Releasing (the assailant) prematurely.

(B)	Releasing (the assailant) before the lawful expiry date of his sentence.

(C)	Failing to undertake any proper evaluation of the likelihood of the (assailant) offending further before releasing him prior to the expiry of his sentence.

(D)	Failing to provide sufficient prison places to accommodate persons sentenced by the Court but instead releasing persons prematurely to make space for further prisoners.

(E)	Exposing the Plaintiff unnecessarily to a risk of being assaulted and raped.

(F)	The Plaintiff reserves the right to furnish further particulars of negligence following discovery.” [*3]

By notice dated the 23rd day of January, 1998, the Defendants sought particulars which included the following:-

“(K) Please specify whether it is alleged that the Defendants ought reasonably to have known that the said assailant would abduct and rape the Plaintiff.”

In reply to that notice the Plaintiff said:-

“(K) It is not alleged that the Defendants should have known that the assailant would abduct and rape Linda Ryan. However, it is contended on behalf of the Plaintiff that the Defendant should have been aware that the assailant was a person of criminal character and violent disposition who would pose a threat to members of the public.”

In paragraph 2 of their Defence delivered on the 2nd day of February, 1998, the Defendants pleaded as follows:-

	“2 .... The Plaintiff’s claim against the Defendants has no reasonable prospect of success and/or is bound to fail on the grounds that the Defendants did not owe the Plaintiff a duty of care in deciding to grant to (the assailant) of Loughshinney, County Dublin, temporary release from Wheatfield Prison and/or the Defendants were not in breach of any duty of care to the Plaintiff in affording to the assailant temporary release and/or any breach of duty by the Defendants in affording temporary [*4] release to the assailant did not cause the loss or damage sustained by the Plaintiff.”

By letter dated the 9th September, 1998, the solicitors on behalf of the Plaintiff invited the Defendants to make voluntary discovery in relation to details concerning the imprisonment and release of the assailant. No such discovery was made. Instead the Defendants applied by notice dated the 4th day of December, 1998, seeking an order pursuant to Order 25 Rule 1 and/or Order 34 Rule 2 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the Court directing the trial of preliminary issues of law in the following terms:-

“(I) Whether the Defendants in the above entitled proceedings or any of them owed to the Plaintiff a duty of care whether at common law or otherwise in determining whether to cause or permit a person to be released from prison on temporary release;

(II) whether the Defendants in the above entitled proceedings or any of them owed to the Plaintiff a duty of care at common law or otherwise to evaluate the likelihood of persons offending further before releasing them on temporary release.

(III) whether the Defendants in the above entitled proceedings or any of them owed to the Plaintiff a duty of care at common law to provide sufficient prison places to accommodate persons sentenced by the Courts.” [*5]

That application was grounded on an affidavit of the then Chief State Solicitor, Mr Michael A Buckley, who, in paragraph 3 thereof referred to the claim by the Plaintiff that she had been abducted and raped on the 2nd day of April, 1994, and then went on to say:-

“At the time of the said abduction and rape it is accepted that the (assailant) was on temporary release from Wheatfield Prison. The assailant was serving a prison sentence for burglary and malicious damage in Wheatfield Prison having been convicted and sentenced on the 24th January, 1991. (The assailant) was due for release on the 29th October 1994 but was granted temporary release on the 8th March 1994 to reside in Cluain Mhuire for the treatment of alcoholism until 19th October, 1994. (The assailant) remained in Cluain Mhuire until the 15th of March, 1994 when he absconded from them. He remained unlawfully at large until the 3rd April 1994 when he was returned to Wheatfield Prison following the alleged abduction and rape of the Plaintiff in these proceedings on 2nd of April 1994.”

In paragraph 6 of his affidavit Mr Buckley summarised the case on behalf of the Defendants in the following terms:-

“I am advised by counsel and believe that there are good grounds for believing that the Defendants do not owe a duty of care to persons in deciding whether to grant temporary release to persons from prison or in evaluating the likelihood of such persons offending further before releasing them on temporary release or in the provision of prison places for those convicted of offences. If the Defendants are [*6] correct in this regard, no duty of care was owed by the Defendants, their servants or agents to the Plaintiff of the type alleged by her in these proceedings. If this is so, the Plaintiff’s claim against the Defendants must fail.”

Mr Buckley went on to draw attention to an order which had been made by Mr Justice Kinlen on the 18th May, 1998, in the case of Patricia McCabe .v. The Minister for Justice & Ors  [1995] (No 9222 Op). That case was subsequently appealed to this Court and reported in 1999 IR 4 IR 151. In his affidavit of reply Mr Matthews, the solicitor on behalf of the Plaintiff, contended that it was not a case in which a preliminary issue would be either appropriate or convenient. He went on in paragraph 4 of his affidavit to say:-

	“I respectfully submit to this honourable Court that this is not a case where abstract 
legal issues can be decided without reference to the facts. One of the principles the sentencing Court applies in its jurisdiction is the need to protect the public by removing persons identified as a danger to the public. I say that the question of whether there is any duty to continue the incarceration of a prisoner cannot be divorced from a consideration as to whether that particular prisoner is incarcerated because he was seen by the sentencing Judge as somebody who was a danger to the community. I further say, there are other facts which could determine the question of whether a legal duty exists and the extent of that legal duty. Examples that come immediately to mind are whether information available to the Minister established that a particular prisoner was a continuing threat as is a person who is identified as [*7] a serial killer or a serial rapist. Again, many persons who have been incarcerated or persons who had difficulties in the area of alcohol abuse or drug abuse. I say that the Court considering the responsibilities of the Minister would clearly want to know whether a person released was undergoing treatment and what particular stage any such treatment had reached and what if any implication it would arise a result of the treatment programme being interrupted.”

In addition Mr Matthews urged that an order for discovery should be permitted to proceed.

The matter came before Mr Justice Johnson on the 1st day of March, 1999, when he delivered an ex tempore judgment, the agreed note of which is in the following terms:-

“This application comes before me by way of an application on behalf of the Defendants for an order directing certain preliminary issues to be tried. Those issues concern the existence or otherwise of a duty of care.

In my view, the issue as to whether a duty of care arises or whether there has been a breach of that duty will depend to a great extent on the knowledge of the prison authorities in deciding whether to grant early or temporary release to the person responsible for the assault in this case. The relevant facts would include the mental condition of the prisoner, the prison authorities opinion concerning that condition, the record maintained by the prison authorities, if the prison authority took the trouble to consider the matter and so on. It is not possible to segregate those factual [*8] issues from the legal issues which l am asked to direct to be tried by way of preliminary issues. Accordingly I must refuse the Defendants application.”

The Appellants relied primarily on two grounds in their argument to this Court. First, it was argued that there was not, or at any rate for the purposes of the issue, would not be, any dispute in relation to any question to fact. In his affidavit sworn on the 2nd day of March, 1998, Mr Buckley had made it clear that for the purposes of the preliminary issue “The Defendants will assume that the Plaintiff would, at the trial of this action, prove the assault, that the person who perpetrated it was on temporary release, that the temporary release had been accorded by the Defendants”.

In their written submissions to this Court the Defendants took the matter further. In paragraph 23 of those submissions the Defendants - no doubt having regard to the decision of this Court in the McCabe Case - stated that they were prepared:-

	“To accept for the purposes of the trial of the preliminary issue of law only (and not otherwise) the facts alleged in the statement of claim and in the replies to particulars and in addition they accept those facts expressly accepted by Mr Buckley in his affidavit. The trial of the preliminary issues of law (if directed by the Supreme Court) can proceed on the basis that the facts alleged by the Plaintiff in the statement of claim and in the replies to particulars are not in issue.” [*9]

The McCabe Case has a particular significance having regard to the close similarity between the facts of that case and those in the instant matter. That too was a case in which the plaintiff was assaulted by a person who was, at the time of the assault, on “temporary release” from Mountjoy Prison pursuant to a statutory scheme. The plaintiff claimed damages for personal injury and alleged that the personal injury sustained in the assault were caused by reason of the negligence of the defendants. As in the present case the defendants pleaded that in releasing a person on temporary release they did not owe any duty of care to the plaintiff in that case. An application was brought by the Defendants for the trial of a preliminary issue as to the existence of a duty of care to the plaintiffs. Mr Justice Kinlen granted the defendants’ application for the trial of the preliminary issue and an appeal was taken by the plaintiff to this Court. In the course of his judgment - with which the other members of the Court agreed - Lynch J said (at page 157):-

	“A preliminary issue of law obviously cannot be tried in vaccuo: It must be tried in the context of established or agreed facts. The facts relevant to the preliminary issue must not be in dispute, but they may be agreed for the purposes of the preliminary issue of law only without prejudice to the right to contest the facts if the actual determination of the preliminary issue should not dispose of the matter at issue. The facts must be agreed or the moving party must accept, for the purposes of the trial of the preliminary issue which he raises, the facts as alleged by the opposing party. In Kilty .v. Hayden  [1969] I.R. 261-265 0‘Dalaigh C.J. said:-

	“When Order 25 is contrasted with Order 36 it becomes clears that Order 25 is not providing for the separate trial of issues which are partly of fact and partly of [*10] law, but for the separate trial of a net point of law this is associated from issues of fact, that is to say, the point of law must arise on the basis of the facts being as the opposing party in his pleadings alleges them to be.””

On that basis the Court upheld the decision of Kinlen J to direct the trial of the preliminary issue and went on to uphold the decision of the learned High Court Judge to postpone an order for discovery of documents.

Counsel for the Plaintiff/Respondent, Mr Peter Charleton SC, correctly pointed out that the decision to direct the trial of preliminary issue was a discretionary one and that accordingly the affirmation by this Court of the order of Mr Justice Kinlen would not be necessarily inconsistent with a decision of the Court in this case upholding the exercise by Johnson J of his discretion in a contrary manner. Whilst I can accept that this argument is technically correct I think it would be highly undesirable for this Court to endorse two conflicting orders made on substantially the same facts. Furthermore, it does seem that the learned trial Judge in the present case was incorrect in saying that there was a dispute of fact. Mr Gardiner, SC, on behalf of the Appellants was at pains to emphasise that all of the facts alleged by the Plaintiff in the statement of claim and in the replies to notices for particulars would be accepted by the Defendants for the purposes of the trial of the preliminary issue. That being so the conflict apprehended by the learned trial Judge does not exist. In those circumstances I would allow the appeal and, subject to the further qualifications contained in this judgment, direct the trial of the preliminary issues as set out in the notice of motion dated the 4th day of December, 1998. [*11]

In his argument to this Court Mr Charleton identified what was described as “a second tier” in the Plaintiff’s case. It was contended that the Plaintiff could claim, and indeed had claimed, that the Defendants or some of them were or might be in breach of a duty which they owed to her as a result of their failure to police or enforce conditions governing the temporary release of the assailant. If such a case were to be made then indeed serious problems would arise in identifying a preliminary issue which could be segregated from the particular facts which might emerge in the course of a plenary trial.

The nature of this second tier basis of claim and the variable nature of the duty to which it might give rise was discussed by reference to the decision in Swan (by his next friend) . v. State of South Australia [1994] 62 SASR 532. In that case the infant plaintiff alleged that he had suffered injuries as a result of numerous sexual assaults committed against him by S who had been sentenced in March 1984 to a period of imprisonment following his conviction on eight counts of unlawful sexual intercourse with a young boy. At the time of the alleged assaults S had been released on parole. It was a condition of such release that S would not associate with children except in the presence of another adult. It appears that this condition was breached and that, notwithstanding allegations made to them, the parole board or their officers who investigated the matter accepted the dishonest statements of S that there was an adult present at all times when he was in the company of the plaintiff. The issue, therefore in that case was the alleged negligence of the parole board in supervising the released prisoner both to the conditions of the parole and as to the prisoners compliance with them. One would have therefore issues as to the existence of a duty at all or the existence of a duty having regard to investigations which were or were not made.

As I read the pleadings in the present case no allegation has been made as to the nature of any conditions imposed on the Plaintiff as a term of his temporary release or as to the supervision or policing of any such conditions. For that reason it seems to me that the problems which arose in the Swan Case do not exist here and accordingly, as the matter stands, it seems to me that it would be appropriate for this Court to follow its judgment in the McCabe Case. If, however, the pleadings are amended then the question of a preliminary hearing would have to be reviewed. Indeed, it is my understanding that in those circumstances the Defendants would not contend that any useful purpose would be served by adopting that procedure. However, on the basis of the pleadings as they exist it seems to me that the appeal must be allowed.