Title: Conway v. Ireland & Ors [1988] IEHC 29 (2 November 1988)
Author: Onder
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THE HIGH COURT

FIONA CONWAY

V.

IRELAND AND OTHERS

Judgment of Mr. Justice Barron delivered the 2^nd day of November
1988.
 
The background facts to the present action are to be found in the reports of Crowley .v. Ireland, 1980 I.R. 102, and Hayes .v. Ireland 1987 I.L.R.M. 651.

The present Plaintiff was born on the 7th December 1967. She was a pupil at Drimoleague National School and when the teachers' strike commenced on 1st April 1976 was in third class.  As a result of the strike, she received no further school education for the rest of that school year.  She returned to school at the beginning of the next school year, but since the strike had not been settled, she did not again attend school until the 14th February 1977 when she returned in fourth class. There she was taught by the teacher for the fifth and sixth classes.  From that date on she progressed through fifth and sixth class without any break.  She went to secondary school in Skibbereen.  She passed her Intermediate Certificate at the age of 14 with nine honours which included an A in Science and Bs in History and Maths.  She passed her Leaving Certificate in 1984 at the age of 16 with seven honours which included a B in Physics.

She applied through the Central Applications Office for a university place.  Her choices were solely:

(1)	Pharmacy in Trinity College Dublin; and
(2)	Science in University College Cork.

She obtained her place in University College Cork.  There she chose to study Maths and Physics.  As she did not achieve an A in Maths in Leaving Certicate she was advised to and did pursue the pass course.  She graduated with a pass degree in 1987. She then enrolled for a Higher Diploma in Education which she has now obtained.

She claims damages for the deprivation of her constitutional right to primary education by reason of the Defendants' circular dated 28th of August 1976 to neighbouring primary schools not to accept pupils from Drimoleague National School.   The cause of action having already been established, the hearing before me has been solely for the purpose of assessing the amount of these damages.

It is submitted that the Plaintiff is entitled to general damages for the distress, upset and general inconvenience suffered by her by reason of being unable to attend school, for the detrimental effect of such non attendance on her educational progress, her character formation, her career prospects and her earning capacity; and to exemplary damages by reason of the particular wrong for which damages are sought.

The break in the Plaintiff's education lasted from April 1976 to mid February 1977.  The Defendants are however only responsible for the period commencing 28th of August 1976 since it was on that date that they infringed her constitutional right by the issue of their circular.   The immediate consequence for the Plaintiff was that she was unable to resume her schooling at the beginning of the new term at the end of August 1976.  When she did return on the 14th of February 1977, it was in the middle of the academic year.  The class never caught up and completed sixth year without having fully covered the prescribed courses in both English and Irish.  As a result when the Plaintiff entered secondary school she was behind in vocabulary and grammar in both English and Irish.  As her mother had been able to help her in Maths she was not prejudiced in this subject.

The Plaintiff has an intelligent quotient of 126 on the wechsler adult intelligence scale.  This or a better rating is held by the top 5% of the population.  Accepting the evidence I am satisfed that she had the potential to achieve the necessary marks in the Leaving Certificate Examination required to gain entry to pharmacy.  She also had the potential to obtain a good honours degree in university in an Arts oriented rather than a Scientific course.  It is clear therefore that by obtaining a pass degree in Science she did not fulfil that potential. There are a number of reasons why this has happened.  Failure to work hard enough is not one of them.  First, she had the handicap of having entered her secondary school insufficiently well grounded in both Irish and English.  Fortunately for her she was a bright girl so that this lack of grounding did not prevent her with effort from keeping up with her class.  She could have been held back a year in her secondary school.  If this had happened, I feel sure that she would then have made up her lack of grounding and have continued her school course freed from the effects of the break in her schooling. Secondly, she was only aged 16 when she sat her Leaving Certificate and on the evidence I am satisfied that she could have been expected to have done significantly better if she had repeated the examination the following year. Unfortunately the financial circumstances of her family precluded this.  Finally she did not receive the necessary careers advice so as to enable her to apply for the courses in which she was most likely to do well.

Her marks in Leaving Certificate were good and when related to a girl of 16 rather than to a candidate of 17 are impressive indeed and indicating much promise.  Her grades, all on honours papers were B in Physics and C in Irish, English, French, Mathematics, Biology and Chemistry.  The Plaintiff impresses as being mature for her years and having a strong character and generally being more capable than most of coping with the misfortune which befell her in the course of her schooling.

The Defendants must take the Plaintiff as they find her that is a girl who had already missed several months schooling.  She was deprived of this schooling between March 1976 and August 1976 through no actionable wrongdoing on their part.  However, had the matter rested there and, as in the case of her older sister, she could have resumed her schooling in September 1976 she then would quickly have made up the loss of a term's work.  But the matter did not rest there.  She was deprived of further schooling.  It was this further loss added to the effect of the lost term which has caused her the loss for which she now seeks damages. There is no suggestion that once her schooling began again, better teaching would have made up this loss.  The evidence which I accept is that any interruption in schooling is damaging and that the extent of the damage depends upon the age at which it occurs, the length of time during which it continues, and the ability of the child affected.  This has been borne out by the facts.  The period of interruption which came at about the worst age for the Plaintiff resulted in her being unable to complete the primary course in Irish and English and to arrive at her secondary school behind her classmates in these subjects.  However, her ability enabled her to do well ultimately in both subjects.

It is unfortunate, but understandable, that the Plaintiff was not willing to be kept back a year. Nevertheless, it was not unreasonable that she should have refused.  Accordingly, in assessing damages, I am not prepared to take into account the fact that ultimately she would have done better had she stayed back.  But the Defendants cannot be responsible for the consequences of the fact that proper career guidance was not obtained nor of the fact that the examination was not repeated.  These are factors which would have occurred anyway.

Damages have already been assessed in the case of Hayes .v. Ireland. In that case, the Plaintiff's intellectual ability was at the other end of the scale. His talents lay not in academic school work, but in more practical accomplishments. The most serious aspect of the break in his schooling was that after it he was placed in the same class as his brother who was two years younger than him and who before the break was in the class below him.  His brother did better than him from time to time and this upset him.  However, the break in his schooling did not affect his future in any way.  Further it was held that his being placed in the same class as his younger brother would probably have happened in any event.  In that case, no claim was made for exemplary damages.

In the present case, there were immediate and unfortunate consequences of the break in schooling. The initial pleasure at the absence of school soon gave way to feelings of boredom. On return to school, there was the lack of time to finish the primary course.  In secondary school, there was the conscious effort to catch up.  These are all matters to which the Plaintiff ought not to have been subjected and for which she is entitled to compensation.

More difficult to assess is the effect of this on her career prospects.  Evidence has been given to show that only 2% of university entrants are under 17 and that the universities are now refusing to take entrants below that age.  This in itself is an indication of the Plaintiff's ability. Nevertheless, the Defendants are not responsible for her entry into university under 17.  In my view, they are responsible for the fact that she arrived at secondary school with less grounding in Irish and English than she would otherwise have had.  As a result she was obliged to concentrate on these subjects which must have affected her Overall performance in her other subjects.  As a matter of probability, this must have affected her approach to the choice of a university course.  As a further matter of probability this would have prevented her from achieving somewhat better results though not sufficient to obtain a place in pharmacy.   If so, with a different course choice, it is reasonable to suppose that she would have achieved an honours degree.   She has lost the satisfaction of. such a success and the different career prospects which might have followed.  However no special loss was pleaded under this head nor any evidence adduced in its support.

In addition, it seems to me that the reasoning of  Kennedy and Arnold .v. Ireland, a judgment of Hamilton, P., delivered on the 12th January 1987 applies equally in the  present case.  There was a totally conscious and deliberate action on the part of the Defendants to gain their own ends without any thought to those who would suffer as a result. There are about 70 claims in all.  In my view, the exemplary damages should be measured in an amount to meet the wrongdoing rather than to benefit the wronged.  For this reason, I would measure damages under this head at £1,500 being a total of approximately £100,000 spread equally among the claimants. Under the two other headings, general loss and loss of career prospects, I would award £7,500 and £2,500 respectively making a total of £11,500.  There will be judgment for that amount.

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