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Cite as: [2005] 1 IR 433, [2005] IEHC 50

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[2005] 1 EHC 50

THE HIGH COURT

1996/3286P

BETWEEN

RAYMOND NOCTOR

PLAINTIFF

AND

IRELAND

THE ATTORNEY GENERAL,

THE MINISTER FOR EDUCATION

and by Order

ST. JOSEPH'S INDUSTRIAL SCHOOL

SOUTH EASTERN HEALTH BOARD

and by Order

THE MINISTER FOR HEALTH

DEFENDANTS

Judgment of Finnegan P. delivered on the 1^st day of March 2005.

This matter proceeded before me by way of assessment.

The circumstances giving rise to the claim as given in evidence by the Plaintiff are as follows –

The Plaintiff was born on the 2^nd April 1959 in Carlow. He was one of fourteen children two of whom died as infants and came eighth in his family. His mother died at the age of 43 when he was some seven years of age leaving him to the care of his father who was some twenty years older than his mother. By Order of the District Court made on the 18^th October 1967 the Plaintiff was committed to St. Joseph's Industrial School Kilkenny on the grounds of being found having a parent who did not exercise proper guardianship. The Plaintiff's younger brother was also committed to St. Joseph's Industrial School. Initially the Plaintiff resided in that part of the school known as St. Teresa's. He describes the treatment while in St. Teresa's as "pretty good". Occasionally he received a slap but nothing severe. Having reached the age of twelve he was transferred to another part of the school known as Summerhill, a separate building. Summerhill had previously been a school but was transformed into living quarters for older boys for whom education within St. Joseph's was discontinued the boys being sent to ordinary schools and in the Plaintiff's case firstly to the De la Salle School and then to the local technical school. The House Master at Summerhill was David Murray. Prior to the transfer to Summerhill the Plaintiff was interviewed by Mr. Murray and in the course of that interview he was shown a handbook with naked people as I understand it to explain the facts of life. However during the interview Mr. Murray put his hands on the Plaintiff's penis and commenced rubbing him.

In Summerhill the boys some twelve in number slept in a dormitory which was divided into cubicles some of which were occupied by one boy and others in the case of brothers by two. The boys were of an age between eleven and thirteen years. While attending school outside St. Joseph's they had their meals and did their homework in Summerhill. Mr. Murray's role included helping with homework in the sitting room at Summerhill and organising sports. Mr. Murray had his quarters downstairs in Summerhill. The Plaintiff was assigned a single cubicle being the first one adjacent to the door to the sleeping quarters.

Some weeks after moving to Summerhill the Plaintiff was in the downstairs sitting room when the other boys were directed to go to bed and the Plaintiff was detained by Mr. Murray. Mr. Murray sat beside the Plaintiff and fondled his penis. He then directed the Plaintiff to remove his pyjamas and underwear, masturbated him and directed the Plaintiff to do the same to him. The Plaintiff knew that this was wrong and was very uncomfortable following the incident. Mr. Murray told him not to say anything about the incident to anyone. The incident was repeated shortly thereafter but on this occasion the Plaintiff was required to put Mr. Murray's penis in his mouth and Mr. Murray put the Plaintiff's penis in his mouth. After this occurrence Mr. Murray gave the Plaintiff a big mug of wine and told him to drink it and gave him a Cuban cigar. The Plaintiff was affected by the alcohol.

At the time of the foregoing incidents the Manager of St. Joseph's was Sister Conception. After the second mentioned incident the Plaintiff went to Sister Conception and met with her in her parlour. His evidence is that he told her that David Murray put his hands down his pyjamas and that he did not want him to do that but told her nothing further. Sister Conception's response was to tell him to watch himself.

The next incident occurred when Mr. Murray came to the Plaintiff's cubicle after all the boys in the sleeping area had gone to bed. He woke the Plaintiff and undressed him, removed his own clothes and got into the bed. Mr. Murray attempted anal rape but the Plaintiff successfully resisted. Mr. Murray's hand was over the Plaintiff's mouth. Mr. Murray kissed the Plaintiff on the lips. He ejaculated over the Plaintiff's backside. The Plaintiff was in shock. At this time the Plaintiff was terrified of Mr. Murray. The abuse continued regularly thereafter. On another occasion shortly afterwards Mr. Murray took the Plaintiff to his room and directed him to remove his clothes. When the Plaintiff hesitated he was struck on the ear. The Plaintiff was ordered to lie on the bed which he did. Mr. Murray used a lubricant and anally raped the Plaintiff. Again the Plaintiff was ordered not to tell anyone what had happened. Thereafter the Plaintiff was anally raped two or three times each week mostly in Mr. Murray's room.

From time to time Mr. Murray would take the Plaintiff to the pictures and he would put his coat across the Plaintiff's lap and masturbate him and require the Plaintiff to masturbate him. The boys were taken on holidays from time to time when the abuse continued. Mr. Murray took the Plaintiff to his own home in Dublin where again the Plaintiff was abused. The Plaintiff could recall no time during his stay in Summerhill when he was not being abused.

On one occasion the Plaintiff was taken to Mr. Murray's room and tied to a chair. Mr. Murray then had anal intercourse with him. Mr. Murray then picked up his Alsatian dog, put the dog's front paws on the Plaintiff's back and forced the dog to mount the Plaintiff. The Plaintiff's back was severely scraped.

Following one incident of abuse the Plaintiff was bleeding from his back passage and on his way home from the technical school called to St. Joseph's school doctor. She refused to examine him and sent him back to St. Joseph's. Later that evening Mr. Murray asked the Plaintiff where he had been and struck him across the face with a hurley and broke his nose and gave him a severe beating. Mr. Murray explained the injuries by saying that the Plaintiff fell down the stairs.

Throughout this time he received beatings from Mr. Murray sometimes with a hurley and others with a brush or strap. On many occasions when abusing the Plaintiff Mr. Murray would have his Alsatian dog with him and he would set the dog on the Plaintiff. The Plaintiff was constantly threatened by Mr. Murray not to tell anyone about what was happening. On one occasion late at night when it was raining heavily Mr. Murray took him out to the vegetable garden and made him dig up a cabbage plant: he then told the Plaintiff that if he ever told anyone about the abuse he would end up there and no one would ever find him, that he would kill him and leave him there. The Plaintiff believed this and was terrified.

The Plaintiff said that he informed Sister Conception of the abuse on a number of occasions. On one occasion he told her in the presence of Sergeant John Tuohy and Sergeant Eddie Geraghty in her parlour. Sergeant Tuohy and Sergeant Geraghty at different periods assisted at St. Joseph's on a voluntary basis principally with sports. Their attendance was organised by Sister Conception. The Plaintiff told the meeting that Mr. Murray was feeling his penis and making him do the same to him. A short time later the Plaintiff had a meeting with the Bishop of Ossory Dr. Birch, Sister Conception, Sergeant Tuohy and Sergeant Geraghty at which he told the Bishop about Mr. Murray's conduct. Specifically he told the Bishop that Mr. Murray was feeling his penis and made him do the same to him and that he was doing other things. The Plaintiff also complained to Mr. Buckley the gardener at St. Joseph's about the abuse.

Notwithstanding the complaints the abuse continued and it affected the Plaintiff. He had low self esteem. He was not doing his homework. Mr. Murray would offer to help the Plaintiff with his homework but in fact the homework was never done as Mr. Murray would abuse the Plaintiff. This led to the school sending complaints to Mr. Murray about the Plaintiff's homework and resulted in the Plaintiff being beaten for not doing his homework. The Plaintiff was attending school at the De La Salle in his first two years in Summerhill and for the next two years attended the local technical school. He did very badly at school. Mr. Murray insisted upon him drinking a lot of wine and very often when he went to school he fell asleep. He suffered from hangovers and often felt very sick. The Plaintiff never did any examinations. He can read and write.

When the Plaintiff was approximately fourteen years of age Mr. Murray left Summerhill for a period during which there was another House Master. He regularly beat the boys in Summerhill. When he left after a period of approximately nine months Mr. Murray returned and the abuse recommenced as bad as ever. Mr. Murray's conduct confused the Plaintiff and he had a concern that he might be gay. Mr. Murray told him to stay away from girls and that if he ever caught him with a girl he would beat him.

When the Plaintiff left the technical school he did some horse riding on a voluntary basis at Gowran Park otherwise he spent time around the town. Shortly before he left St. Joseph's the Plaintiff's accommodation was changed. David Murray set up a small flat in which the Plaintiff and a friend resided. Notwithstanding the change the abuse continued.

At about the age of sixteen the Plaintiff got a job on the Curragh with a race horse trainer Mr. Prendergast as he was thinking about becoming a jockey. However he left after a short period. In April 1975 the Plaintiff reached sixteen years of age and his detention as such ceased but he continued to reside in the flat at St. Joseph's. He got a job in Woolworths and later with Marlowe Dry Cleaners each of which was arranged for him by St. Joseph's. He was then aged about sixteen years. The Proprietor of Marlowe's was David Daly. The Plaintiff was unsure as to where he was living at this time but thinks it was St. Joseph's. He did however live with Mr. Daly and his wife for some time. About this time he also lived with a family in Kilkenny. From time to time he moved back and forth to St. Joseph's. He continued working at Marlowes from 1975 to 1980 residing from time to time at different addresses in Kilkenny. During this period he told Mr. Daly what had happened to him in St. Joseph's. As a result Mr. Daly accompanied the Plaintiff to St. Joseph's to meet with Sister Conception. Mr. Daly told Sister Conception that there was abuse going on although he could not remember the words used. Her reply was that the Plaintiff tended to exaggerate quite a lot. During this time the Plaintiff told quite a number of people about the abuse which he had suffered.

In 1980 the Plaintiff joined the Naval Service. He had difficulty with his initial training which ordinarily lasted some twelve weeks but which took him some nine months. He became depressed while in the Naval Service and was admitted to hospital in Cork on the 19^th November 1982 and detained until the 23^rd November 1982 with self inflicted lacerations to both wrists. He was diagnosed as suffering from a personality disorder with disturbed family background. He was examined by a Medical Board which found that he suffered from depression and was suicidal and his discharge was recommended on the grounds that he did not possess the physical standards required for service. He was transferred to St. Stephen's Hospital on the 22^nd November 1982. The Plaintiff started drinking during his time in the Naval Service. The trigger for the Plaintiff cutting his wrists was that he had flashbacks of his period at Summerhill and of the abuse which he suffered. He was approximately twenty three years of age when discharged from the Naval Service.

Following his discharge from the Naval Service the Plaintiff returned to Carlow. He did not obtain any work and was drinking very heavily. From 1985 to 1987 he worked as a DJ with a Radio Station in Carlow on a voluntary basis from 8 o'clock in the evening until midnight. He did not work again until 1994. He felt limited in what he could do as the only job of which he had experience was dry cleaning: he had no education and could not fill in forms and in particular he had a difficulty in filling in his residence for the period he was in St. Joseph's School. He did get a period of employment for two weeks in dry cleaning at Christmas 1994 and again at Christmas 1995. He got occasional work marking the board in a Bookmakers Office. During this period he moved around a lot living at different places in Carlow and had difficulty settling. On occasions he slept rough.

Commencing on the 27^th January 1989 the Plaintiff had 28 admissions to St. Dympna's Hospital Carlow. These admissions are detailed in a report of Dr. Maire Horgan, Consultant Psychiatrist at St. Dympna's Hospital as follows –

"1^st Admission: 27/1/1989 – 3/2/1989 (Voluntary Status)

Mr. Noctor was brought to St. Dympna's Hospital in an intoxicated state by Gardai. He had earlier caused a disturbance at his girlfriend's house necessitating the Gardai's involvement. Collateral from his sister and brother at the time of admission, indicated Mr. Noctor's excessive alcohol use and gambling addiction over many previous years. They indicated that they were completely unable to cope with his behaviour in this regard. On admission Mr. Noctor's mood was depressed and he intimated suicidal ideation. Once sober, Mr. Noctor's mood recovered spontaneously without need for drug therapy. There was no evidence on examination to suggest the presence of psychiatric illness. He was discharged to the day hospital and out-patient clinic for ongoing support.

2^nd Admission: 1/4/1989 – 18/4/1989 (Voluntary Status)

Mr. Noctor was readmitted and admitted to excessive alcohol use and almost continuous gambling since his discharge from hospital. He was rowing constantly with his brother and sister and girlfriend. He was homeless on admission. He was intoxicated on admission with depressed mood and suicidal ideation. Once sober his mood rapidly recovered spontaneously. No medication was required. There was no evidence to suggest that Mr. Noctor was formally psychiatrically unwell. Mr. Noctor was viewed as an emotionally immature and vulnerable man with a propensity to excessive alcohol use and pathological gambling. His depressed mood and suicidality in the absence of any obvious cause was deemed to represent the depressive effect of excessive alcohol in predisposed individuals. Mr. Noctor was discharged to his brother's care. He was discharged to the day hospital and out-patient clinic for ongoing support.

3^rd Admission: 2/6/1989 – 9/6/1989 (Voluntary Status)

Mr. Noctor was readmitted following a row with his girlfriend. He was homeless on admission. He denied excessive alcohol use in the preceding weeks and claimed to be attending gamblers anonymous. He was assisted in finding accommodation on discharge to the day hospital and the out-patient clinic for support.

4^th Admission: 5/8/1989 – 18/8/1989 (Voluntary Status)

Mr. Noctor was readmitted following a row with his girlfriend. He denied excessive alcohol use or excessive gambling in the weeks prior to his admission. He claimed not to be coping well in his flat on his own. He described himself as feeling lonely with low mood. His mood recovered quickly without drug therapy following hospitalisation and Mr. Noctor resumed his normal persona on the admission unit namely a cheerful, helpful, energetic individual who seemed contented and relaxed in hospital. Again Mr. Noctor was viewed as an emotionally immature and vulnerable man with poor coping skills and a propensity to excessive alcohol use and gambling addiction. He was discharged to the day hospital and out-patient clinic for ongoing support.

5^th Admission: 15/9/1989 – 21/9/1989 (Voluntary Status)

Mr. Noctor was admitted following an overdose in the context of excessive alcohol use. He admitted that his gambling and drinking were currently out of control and had been thus in the weeks prior to admission. As before, his mood was depressed with suicidal ideation on admission but rapidly recovered spontaneously following brief detoxification. As before, Mr. Noctor quickly regained his cheerful, energetic, helpful persona on the admission unit prior to discharge. As before, he was discharged to attend the day hospital and out-patient department for ongoing support. He continued to be viewed as an emotionally, vulnerable and immature man with alcohol and gambling addiction.

6^th Admission: 15/12/1989 – 19/12/1989 (Voluntary Status)

Mr. Noctor was readmitted with the complaint of persistent headaches leading to depressed mood. He denied excessive alcohol use or pathological gambling in the weeks prior to admission. His headaches recovered without recourse to any investigation or treatment and his mood also spontaneously lifted. He was anxious for an early discharge to return to his work in a betting shop. He was offered ongoing day hospital and out-patient support as before. Again his presentation was viewed in similar terms to before.

7^th Admission: 1/1/1990 – 8/1/1990 (Voluntary Status)

Mr. Noctor was admitted complaining of accommodation problems. He also stated that he felt unable to cope outside the hospital. He was discharged to attend at the day hospital on a daily basis for continued support and encouragement. As before his presentation was understood in similar terms to before.

8^th Admission: 18/1/1990 – 7/2/1990 (Voluntary Status)

Mr. Noctor was readmitted in an intoxicated state. He had been gambling and drinking to excess prior to admission. He was homeless following his eviction from his accommodation owing to non payment of rent. As before he displayed depressed mood and suicidal ideation on admission but rapidly and spontaneously recovered upon sobriety. Again as before he regained his cheerful, energetic, helpful persona on the ward. He indicated a willingness to attend Ais Eiri in Wexford and arrangements were made to discharge him to same.

9^th Admission: 3/4/1992 – 9/4/1992 (Voluntary Status)

Readmitted in an intoxicated state. Admitted to a period of binge drinking prior to admission. Admission precipitated by his intoxicated state and by his having rowed with his brother on the day in question. As before he rapidly recovered spontaneously and was discharged to attend the day hospital and out-patient department facilities .

10^th Admission: 28/1/1993 – 24/2/1993 (Voluntary Status

Readmitted with depressed mood and suicidal ideation. He denied excessive alcohol use or pathological gambling prior to admission. He claimed to be coping poorly in a flat on his own in Tullow. He had ongoing difficulties in his relationship with his girlfriend. He stated that she left him pre Christmas following disclosure of her pregnancy. He did not know her whereabouts and this disturbed him. Again as before his mood rapidly recovered spontaneously and he was discharged to attend the day hospital and the out-patient facilities for ongoing support.

11^th Admission: 23/2/1993 – 10/3/1993 (Voluntary Status)

Readmitted with depressed mood and suicidal ideation. He stated that his depressed mood recurred immediately following his last discharge. He stated that he was lonely and unable to cope in Tullow. Again as before within a couple of days of hospitalisation his mood recovered spontaneously and he resumed his normal, energetic, cheerful persona. His brother arranged accommodation for him in Carlow. He was discharged feeling well and optimistic re the future. To attend the day hospital and out-patients clinic as before.

12^th Admission: 10/3/1993 – 4/4/1993 (Temporary Status regraded to Voluntary Status)

Readmitted on a Temporary Certificate. He had been drinking since discharge from hospital earlier in the day. He was intoxicated, angry and aggressive on admission. Status was regraded to voluntary as soon as sobriety ensued. Mr. Noctor remained moody and sullen for a week following admission and then resumed his normal, helpful, cheerful self with no evidence of formal psychiatric illness on examination. Again as before he was discharged to attend the day hospital and out-patient department for support.

13^th Admission: 4/11/1993 – 18/11/1993 (Voluntary Status)

Readmitted with depressed mood and suicidal ideation. He claimed that his depressed mood related to ongoing difficulties with his girlfriend and her family over the custody of their six month old baby daughter. Mr. Noctor and his girlfriend indicated a wish to rear their baby but his girlfriend's family strongly objected and one member was proposing to adopt the baby. Mr. Noctor gradually settled and was in good optimistic form on discharge. The community care social worker was involved in an attempt to assist resolve the custody issues. Mr. Noctor was discharged to attend the day hospital and the out-patient department services as before.

14^th Admission: 2/12/1993 – 21/12/1993 (Voluntary Status)

Mr. Noctor was readmitted following a row with his girlfriend and described ongoing difficulties in their relationship. He displayed depressed mood and suicidal ideation on admission. He settled quickly in hospital without the need for pharmacotherapy. During his admission his relationship with his girlfriend remained turbulent and Mr. Noctor's mood and behaviour reflected this situation. He was discharged to the day hospital and out-patient department as before for support and follow up.

15^th Admission: 15/2/1994 – 16/2/1994 (Voluntary Status)

Mr. Noctor was admitted in an intoxicated, aggressive, disorderly and disruptive frame of mind. He was expressing suicidal ideation. When sober he continued to describe ongoing difficulties with his girlfriend. He was distressed in particular that she had given up their daughter to her sister for adoption. He was rapidly anxious for discharge. His mood returned to normal as on every previous occasion within a relatively short period of time without the need for pharmacotherapy. As before he was discharged to the day hospital and out-patient department for ongoing support and follow up.

16^th Admission: 8/3/1994 – 9/3/1994 (Voluntary Status)

Mr. Noctor was readmitted with ongoing upset and distress over his relationship with his girlfriend and issues to do with the custody of their daughter. He had some alcohol taken on admission. As before he rapidly settled spontaneously. He was discharged to the day hospital and out-patient department for ongoing follow up.

17^th Admission: 19/9/1994 – 11/10/1994 (Voluntary Status)

Mr. Noctor was referred to St. Dympna's Hospital from St. Stephen's Hospital in Cork. He had been living in Cork with his girlfriend but was unable to cope with the ongoing battle to regain custody of their daughter and the ongoing difficulties between himself and his girlfriend. His girlfriend had broken off the relationship on discovery of her second pregnancy. Ray was unable to cope with his situation and was admitted to St. Stephen's Psychiatric Unit Cork. On admission to St. Dympna's he gradually settled and opted to remain in Carlow on discharge. No medication was prescribed. Discharge arrangements were as before.

18^th Admission: 10/11/1994 – 17/12/1994 (Voluntary Status)

Mr. Noctor was admitted following an overdose whilst intoxicated. When sober he was claiming depressed mood secondary to ongoing difficulties in his relationship with his girlfriend and ongoing distress at not having custody of their daughter. His admission on this occasion was a turbulent one wherein he absconded on a number of occasions to go drinking. Eventually he was reconciled with his girlfriend and they were planning marriage. As before Mr. Noctor was discharged in good form to attend the day hospital and out-patient services. As before he was discharged on no medication. Following the above admission Mr. Noctor was questioned by Gardai in relation to their investigation into allegations that former residents of St. Joseph's Kilkenny were subjected to sexual abuse during their time there. Upon his questioning by Gardai Mr. Noctor for the first time ever disclosed that he had in fact been sexually abused while resident there. Heretofore the medical records show that Mr. Noctor had invariably described his childhood experiences as uneventful. It is routine psychiatric practice to enquire into all aspects of the patient's life and in particular into childhood experiences as part of the patient's psychiatric examination. Regrettably it appears as though Mr. Noctor was unable to disclose his earlier experiences to us.

19^th Admission: 18/4/1995 – 27/4/1995 (Voluntary Status)

Mr. Noctor was readmitted feeling stressed, depressed and unable to cope. He cited ongoing difficulties and uncertainties in his relationship with his girlfriend, shame at the public knowledge of his past sexual abuse, pressure from his own family in relation to their expectations of monetary gain in the light of his childhood sexual abuse and the probability of his being compensated in relation to the same. Mr. Noctor also cited ongoing difficulties in relation to the unresolved issue of the custody of his daughter. Mr. Noctor gradually settled with support and encouragement. He was attending a community care appointed Social Worker for counselling in relation to his disclosed sexual abuse. He was discharged in good form and no medications to attend the day hospital and out-patient department for support and follow up.

20^th Admission: 17/5/1995 – 29/5/1995 (Voluntary Status)

Mr. Noctor was readmitted following the break-up of his relationship with his girlfriend post the birth of their son. He was homeless and living in the St. Vincent de Paul Hostel on admission. He displayed depressed mood and suicidal ideation on admission. He indicated ongoing distress at the recollection of his prior sexual abuse. He also indicated ongoing distress over legal wrangles in relation to the custody of his daughter. This admission was a turbulent one with Mr. Noctor leaving hospital on a number of occasions to attempt to visit his girlfriend. He also left on occasions to go drinking. Mr. Noctor was eventually reconciled with his girlfriend and was discharged to attend the day hospital and out-patient department for support and follow up.

21^st Admission: 16/10/1995 – 17/10/1995 (Voluntary Status)

Mr. Noctor was admitted following a row with his girlfriend. Mr. Noctor had been drinking prior to admission. Physical violence was alleged by both parties in relation to one another during the course of the row which precipitated Mr. Noctor's admission. Mr. Noctor was angry and expressing suicidal ideation on admission. He absconded from the hospital and was returned by the Gardai. He settled rapidly once sober and was discharged to attend the day hospital and out-patient department. No medications were prescribed.

22^nd Admission: 23/1/1996 – 26/1/1996 (Voluntary Status)

Mr. Noctor was admitted in an emotionally over wrought state claiming depressed mood and inability to cope with day to day life and associated problems. He had been staying in Cuan Mhuire Alcohol and Drug Rehabilitation Centre, Athy, Co. Kildare over the preceding months. Up until a very short time prior to his referral to St. Dympna's he had been very well and enjoying and availing positively of his experiences in Cuan Mhuire. He described working in the coffee shop and giving talks in schools on alcoholism. On admission to St. Dympna's he displayed marginally depressed mood. However his depressed mood lifted rapidly and he regained his normal cheerful, energetic persona. He requested permission to return to Cuan Mhuire and same was allowed.

23^rd Admission: 9/9/1996 – 11/9/1996 (Voluntary Status)

Mr. Noctor was admitted in an intoxicated and very disorderly state. He intimated that he was upset that his girlfriend had changed her mind about marriage. He was aggressive, abusive and disruptive on the admission unit. He settled over the ensuing 24 hours. Once sober he claimed no recollection of his behaviour on admission. He was discharged in reasonable form to attend the day hospital and out-patient department for support. No medication was prescribed.

24^th Admission: 12/1/1997 – 13/1/1997 (Voluntary Status)

Mr. Noctor was admitted following an overdose of minor tranquilising medication. He described himself as upset at his forthcoming court case in relation to his past experience of child sexual abuse. On admission to St. Dympna's he was relieved to be alive and was regretting his impulsive overdose. He settled quickly in hospital and rapidly requested discharge to return to work. He represented the following day claiming depressed mood and inability to cope and requesting admission which was granted.

25^th Admission: 14/1/1997 – 3/3/1997 (Voluntary Status)

Mr. Noctor was readmitted as described above. The admission proved to be a turbulent one with Mr. Noctor absconding to go drinking on a number of occasions whilst an inpatient. He continued to be upset in relation to his past child sexual abuse and the impending court case in relation to the same. Additionally his relationship with his girlfriend remained turbulent and unsatisfactory. He gradually settled with support, encouragement and the opportunity to talk. He continued to avail of his child sexual abuse counselling as provided by the Community Care social work department. In order to attempt to assist his ability to cope Mr. Noctor was allowed to leave hospital on leave during week days and to return to the hospital at weekends. This arrangement appears to have assisted him to better cope and he was eventually fully discharged on the 3/3/97.

26^th Admission: 3/8/1997 – 3/8/1997 (Voluntary Status)

Mr. Noctor was admitted in an intoxicated and very disorderly state. He absconded from the hospital and was returned by the Gardai. Once sober he apologised for his behaviour. He intimated that emotional distress at the recollection of earlier childhood sexual abuse had precipitated his drinking bout. He wad discharged to attend the day hospital and the out-patient services for ongoing follow up and support.

27^th Admission: 27/12/1997 – 29/12/1997 (Voluntary Status)

Mr. Noctor was admitted in an intoxicated and distressed state. On admission he was intimating suicidal ideation. He was speaking of his prior child sexual abuse. Once sober he regretted his alcohol excess attributing it to a family party which he had attended on the previous evening. He stated that his family had encouraged him to drink and to enjoy himself. He acknowledged the need to limit his alcohol use severely in order to avoid a recurrence. He claimed to have been more careful in this regard in more recent times than formerly.

28^th Admission: 29/5/1999 – 1/6/1999

Mr. Noctor was admitted in an intoxicated state. He cited ongoing and apparently insoluble difficulties in his relationship with his girlfriend now his wife. He is now of the opinion that this is for him an emotionally and physically abusive relationship. He seems uncertain as to how to proceed in the relationship. Any decisions in this regard are complicated by the fact that they have two children in common and that his wife is now expecting a third child in the early new year. Mr. Noctor was not anxious to remain in hospital. He was confident of his ability to cope and regretted his indiscretion around alcohol abuse. He was discharged to the out-patient clinic and day hospital for support and ongoing follow up."

The Plaintiff did not attend St. Dympna's Hospital following his discharge on the 1^st June 1999.

In relation to his attendances at St. Dympna's Hospital the Plaintiff explained that at the time he was drinking quite a lot, that he was often homeless and that he found comfort there. He got used to it and liked it. His attendances were largely directly related to bouts of binge drinking which in turn were brought on by some other form of upset.

The Plaintiff married his girlfriend in 1998. Their eldest child a daughter lives with his wife's sister and he enjoys access to her and has a good relationship with her. Two other children, boys, reside with the Plaintiff and his wife. The Plaintiff's relationship with his wife both before and after marriage was turbulent and this caused him upset which caused him to binge drink.

In the period 1982 to 1999 the Plaintiff's life was very disorganised. He occasionally got work in a bookies office marking the board. On occasions he would spend all day in bed. He lived on his dole money which rarely lasted the week. His place of residence changed regularly. His history of abuse caused him to have a fear of working with a large group of people as he felt both shame and guilt. Throughout this period he thought a lot about the abuse and became depressed and cried and felt sorry for himself. Matters began to improve once he informed Dr. Horgan of his history of abuse in that she believed him and treated him for its consequences. He was one of the witnesses against Mr. Murray when he was charged with offences relating to child abuse and he gave evidence at the hearing. He obtained relief from Mr. Murray's conviction in 1997.

In 1998 the Plaintiff went on a back to work scheme. He was employed by a contract cleaning company for a period of four months in 1998 but was let go due to redundancy. He next obtained employment in November 2000 as a machine minder with Braun in Carlow. He got on well with that job. He worked in the gas room where he filled gas cartridges some 30,000 per shift. He got on well with his co workers. The job as he described it was a responsible one. He was a shop steward while there. Unfortunately he was one of 150 employees made redundant in August 2001. His period of employment totalled nine months. He was then unemployed until August 2003 when he obtained employment with Tesco as a shelf packer and he remains in that employment and is happy there. However he has had occasional absences due to his recourse to drink. Nonetheless he feels confident enough to consider applying for a course for supervisors and feels he could satisfactorily complete the same.

From time to time the Plaintiff has attended Cuan Mhuire in relation to his drinking and continued to attend there after his last discharge from St. Dympna's Hospital: he also avails of counselling in relation to that problem.

The Plaintiff was kept in touch with the progress of his case by his solicitors and was aware that liability was being denied by the Defendants. He welcomed the fact that it was now withdrawn. He also welcomed the apology which had been given by the State and by the Sisters of Charity notwithstanding that it was late in the day.

In cross examination the Plaintiff said that his father had visited him during his early days at St. Joseph's but that he had been asked not to come again and that he did not know the reason for this. He agreed that his attendances at St. Dympna's Hospital arose from a number of problems which he experienced – drinking, accommodation problems, gambling. He would go to St. Dympna's when he felt low. St. Dympna's Hospital allowed him to stay there until he had suitable accommodation. Once he was sober he would be back to normal. His accommodation problems arose from his failure to pay for the same. He likes to gamble although he does not gamble any more. While he was now happy that his first child should be with his wife's sister at one point this was something that upset him. He was ashamed that the public in Kilkenny knew about his being sexually abused since his name was mentioned in the papers two or three years ago: however he had an opportunity of asking that his name not be mentioned in the papers but he wanted his name mentioned. He had attended Cuan Mhuire in relation to his problems with drink and received counselling there not alone in relation to drink but also in relation to the abuse and this was of great help to him. He did not inform St. Dympna's Hospital of his history of sexual abuse initially because he did not think they would believe him: he only disclosed the history when he became comfortable with Dr. Horgan. He had told other people about the abuse but this had been twenty years previously. He accepted that over the past four years he had taken control of his drinking. He accepted that he is friendly, kindly, helpful and intelligent. He plays chess, reads the newspapers and has an interest in current affairs and in history. He is energetic and hardworking when he has a job. The problem for him in obtaining employment is that on an application he would have to give his history and disclose that he had been in St. Joseph's. He agreed with the report of Miss Aine Ennis who saw him in March 1999 that he had emerged from his experiences with a mostly positive, hopeful attitude to life. He agreed with the report of Dr. Veasey that he was a moderate drinker now. He agreed that he told Dr. O'Donogue that he had educated himself when he left St. Joseph's by watching videos and documentaries and that he had an interest in history, politics and current affairs.

With regard to employment he intends to apply for the supervisor course which is available to him in Tesco. While at Braun he had one row and that was related to drink. He worked in Braun for eleven months before being made redundant and he believed that but for the redundancy he would still be there. 160 people were let go at the same time. Braun thought highly of him and he had a responsible job. After he left St. Joseph's and required accommodation Sister Conception would allow him to stay in St. Joseph's. It was put to the Plaintiff that he told Sister Conception in relation to Mr. Murray that he was being physically harassed but not that he was being sexually abused: he disagreed. He agreed that he told Sister Conception that Mr. Murray was "at him" and he agreed that he would use a phrase like that. He agreed that he did not go into detail with her.

With regard to his time in the Naval Service he drank a lot. He did not like the Navy and did not like going to sea. He would have liked to have been a physical training instructor. He did a course at the Curragh for this and did very well. On a voluntary basis he had given classes to children in physical education.

He had given statements to the Gardai. He accepted that in those statements he had never mentioned the meetings which he now alleged with Sister Conception, Sergeant Tuohy, Sergeant Geraghty and Bishop Birch: however he was sure that he mentioned the meetings to the Gardai at that time. The statement was taken from him by Sergeant Tuohy who should have been aware of that complaint. He agreed that he may not have mentioned to the school doctor whom he attended in relation to bleeding that he had been sexually assaulted.

Three witnesses were called by the Plaintiff in relation to the facts of the case Mr. Buckley, Mr. Heffernan and Mr. Daly.

Mr. Buckley is a Forrester and was employed in Kilkenny between July 1973 and October 1974 and was employed part time at St. Joseph's from September 1973 to mid1974 assisting with sports, homework and leisure supervision of the boys in Summerhill. In the Spring of 1974 the Plaintiff spoke to him about being interfered with in bed by Mr. Murray and of being afraid to do anything about this because of possible repercussions. He understood that what was going on was homosexuality. He built up a relationship of trust with the Plaintiff and persuaded him that the matter should be reported to Sister Conception and that this should be done at a time when Mr. Murray was away from the building. The Plaintiff agreed to go to Sister Conception with the witness. They met with Sister Conception in her sitting room. In his presence the Plaintiff told Sister Conception that he was being interfered with in bed by Mr. Murray. The witness did nothing further about the matter as he did not work in St. Joseph's for June, July or August of that year. He understood from Sister Conception that she would look into the complaint. Sister Conception could have had no doubt as to what she was being told was going on in Summerhill. At the time the witness was 23 years of age. In cross examination the witness agreed that he had made a statement to the Gardai and that in that statement he said that the Plaintiff was vaguely saying that he was being interfered with. At the time he understood the phrase interfered with as having a sexual connotation. He agreed that in his statement to the Gardai in relation to the interview with Sister Conception he said "I outlined the allegations telling Sister Conception that David Murray was interfering with the boys and we were there to make an official complaint about David Murray. Raymond Noctor told Sister Conception in a vague sort of way about what David Murray was doing to him. I feel that Raymond Noctor was terrified of telling the full story and he was afraid he would not be believed by anybody."

By "vague" he meant to convey that technical words for body parts were not used nor were words such as "homosexual activities". He agreed that the Plaintiff had said to Sister Conception that he was being interfered with. However he was satisfied that Sister Conception was told that Mr. Murray was putting his hands into the Plaintiff's bed.

William Heffernan gave evidence that he moved from St. Teresa's to Summerhill in 1971 and shared the same dormitory as the Plaintiff. He had been interfered with by Mr. Murray sexually. He went to Sister Conception and told her that he was receiving beatings from Mr. Murray after receiving a particularly severe beating. While he did not explain in great detail he told her that there was more happening. Her response was to shake her head and say "no, no, no". In cross examination it was put to the witness that in his statement to the Gardai he had not mentioned complaining of sexual abuse to Sister Conception and he agreed.

David Daly gave evidence that he was the Manager of Marlowes Cleaners in Kilkenny. He first met the Plaintiff when the Plaintiff was fifteen years of age. He interviewed the Plaintiff for a job and the Plaintiff started to work for him. About six months later the Plaintiff told him that he had been sexually abused in St. Joseph's. At that time the witness was twenty years of age. It was agreed that he and the Plaintiff should go to Sister Conception. He told her that the Plaintiff was being sexually abused. Sister Conception dismissed the complaint completely saying that the Plaintiff was inclined to exaggerate. Shortly thereafter the Plaintiff moved out of St. Joseph's to live with the witness and his wife. The Plaintiff continued to work with him until the cleaners closed in 1979. During the time that the Plaintiff was employed with him he was fine. He had heard nothing further about his complaint to Sister Conception. In cross examination the witness said that the Plaintiff had told him that he was being sexually abused. He told Sister Conception that the Plaintiff was being sexually abused. He had not received any details of the sexual abuse from the Plaintiff and accordingly gave no detail to Sister Conception. In his statement to the Gardai he had said that Sister Conception in response to the complaint said that that sort of thing wouldn't happen there and he agreed that this was correct. The interview lasted a couple of minutes only. He told Sister Conception that Mr. Murray was the abuser.

Mr. Liam Quigley gave evidence. In the 1970s he was involved in organising sports particularly ladies basketball in a number of convents including St. Joseph's. In the course of his activities as a trade union activist it came to his attention that a boy was being sexually molested by an adult while he was in bed in St. Joseph's. He called to St. Joseph's one evening and asked to speak to Sister Stanislaus whom he knew. Sister Stanislaus was in an area of the convent occupied by Kilkenny Social Services and he relayed this information to her there. She was dismissive: her view was that the children often told outrageous stories to seek attention. The interview took less than a minute. In cross examination Mr. Quigley said that he became Shop Steward in 1974 and he became aware of the complaint while he was a Shop Steward. It was most likely in 1976. He did not know the name of the boy nor the name of the abuser. Sister Stanislaus was not involved in the running of St. Joseph's Industrial School but was involved with the Kilkenny Social Services but he expected her to become involved.

The Defendants called a number of witnesses dealing with some aspects of the facts given in evidence by the Plaintiff namely Sergeant John Tuohy, Sergeant Eddie Geraghty and Sister Joseph Conception. I propose dealing with their evidence in advance of dealing with the expert evidence led on behalf of the Plaintiff.

Sergeant Tuohy gave evidence that he moved to Kilkenny as a Garda in 1966. In 1995 he was involved in the investigation which led to Mr. Murray being charged. He became involved on a voluntary basis with St. Joseph's in late 1971 or early 1972 on an occasional basis attending perhaps two or three times per month. Sergeant Geraghty was also involved and when he was transferred the witness attended more regularly, several nights per week. He ran a disco for the children each Friday and supervised study and games and drove the mini bus on outings. He knew the Plaintiff well and the Plaintiff being very friendly would talk to him when they met on the street. The first time that sexual abuse came to his notice was in January 1995 when he was informed of it by another former pupil. At interview that pupil gave him the Plaintiff's name and he interviewed the Plaintiff and took a statement from him. He was not aware of sexual abuse at St. Joseph's in the 1970s with the exception of one case: this case related to a child who was not in care who was interfered with by an employee of St. Joseph's who was dismissed. He never had a meeting with Sister Conception in relation to sexual abuse of any child in the school. The meetings which the Plaintiff suggested took place between the witness Sergeant Geraghty and Sister Conception and between the witness Sergeant Geraghty, Sister Conception and Bishop Birch never took place. In cross examination he gave the date of Sergeant Geraghty's departure as 1972. He never had a meeting which involved Sergeant Geraghty and Sister Conception. Sister Conception had brought one case of abuse to his attention: a child from outside the school was visiting and he was sexually abused by a child care worker. This was approximately 1977. While the term sexual abuse was not used by Sister Conception or the witness at that time Sister Conception was clear as to what was involved – that a child had been interfered with.

Sergeant Geraghty gave evidence. He had been involved with St. Joseph's until his transfer to County Monaghan in 1972. In 1970 and 1971 he was Juvenile Liaison Officer and so dealing with young people. He was quite involved with sports but more to do with the girls than the boys. He was later transferred to County Laois when he resumed his association with St. Joseph's attending there occasionally on Saturday nights. He knew the Plaintiff. The first he knew about sexual impropriety at St. Joseph's was when he read of it in the paper in 1998. He was not present with Sergeant Tuohy and the Plaintiff when allegations of sexual abuse were made. Sergeant Tuohy and the witness were only present at the same time perhaps once per year. There was no meeting with Bishop Birch and he had never met with Bishop Birch in relation to St. Joseph's. He considered himself to be quite friendly with Sister Conception. She had never mentioned any sexual assaults on the children to him. Had he been aware of allegations of sexual abuse he would have taken a statement and pursued the matter from there. In cross examination he said that he would have found an allegation of sexual abuse startling and would remember it. After he resumed his attendances at St. Joseph's in 1981 Sister Conception had never mentioned to him anything about David Murray or the reason why he had left.

Sister Joseph Conception gave evidence. She became Manager of St. Joseph's in 1972 but had worked there previously in charge of a group of children. She continued as Manager until 1986. She remembered the Plaintiff. She was not aware that the Plaintiff had been sexually abused. She understood the Plaintiff to tell her that he was physically abused. She had received complaints about Mr. Murray that he was physically abusing the boys but could not specifically remember a complaint from the Plaintiff. The Plaintiff never told her that Mr. Murray had put his hand down his pyjamas. There was no meeting between the Plaintiff, the witness, Sergeant Tuohy and Sergeant Geraghty at which a complaint of being sexually abused was made. There was no meeting between the Plaintiff, the witness, Sergeant Tuohy and Sergeant Geraghty with Bishop Birch. The witness remembered meeting with William Heffernan but she understood him to say that the boys were being physically abused. She remembered Mr. Buckley well but could not recollect the meeting of which he had given evidence. She had no recollection of meeting with Mr. Daly. Had she been aware of a complaint of sexual abuse she would have asked Sergeant Tuohy or Sergeant Geraghty about the same.

In the course of cross examination the witness said that during Mr. Murray's period at the school the boys were unhappy and running away and she asked Dr. Maloney to speak with them. She reported back that there was nothing to worry about. She mentioned to Mr. Murray that the boys were unhappy with him and had complained about physical abuse. If the boys complained that Mr. Murray was "at them" she understood this to mean that he was punishing them. One day a boy David Purcell told her that Mr. Murray was abusing the boys and she reported it to the Department of Education. She understood from David Purcell that the punishment was so severe that she would have to let Mr. Murray go and she went to him and told him that he could not stay because the boys are unhappy and that he was punishing them too severely and at that point Mr. Murray agreed to give notice. David Murray had been employed from 1972 to 1976 except for a period of nine months when he left. He left because he was dissatisfied with his salary. After nine months he asked if he could come back and he was accepted back because St. Joseph's had no trained people and she was delighted to get him back. As best she could remember the first complaint of physical abuse by Mr. Murray occurred about a year after he arrived. She knew that Mr. Murray was physically very hard on the boys but left him in charge. However the complaints were not very frequent. The Plaintiff never told her when he made his complaint against Mr. Murray that Mr. Murray had put his hands down his pyjamas: the complaint as she understood it was that Mr. Murray was "at him" or tormenting him. She remembered William Heffernan making a complaint but she did not remember him adding after his account of his beating "and more". The witness did not doubt Mr. Buckley's evidence but could not remember him calling with the Plaintiff. Had the witness known that sexual abuse was occurring she would have gone to the Guards. She did not remember meeting Mr. Daly. With regard to the one incident which occurred this concerned a child visiting St. Joseph's and being interfered with by Mr. Brady. She immediately took this up and rang Sergeant Tuohy. Mr. Brady was away at the time. She together with Sergeant Tuohy travelled to Dublin to interview Mr. Brady and he never came back to St. Joseph's. Sergeant Tuohy and Sergeant Geraghty were rarely if ever with her at the same time. The witness did not remember the Plaintiff's nose being broken. She was aware of the Plaintiff's school attendance and school performance because she saw the reports. The witness was asked why she allowed the Plaintiff to leave the technical school during his second year. She said that there were many problems suffered by the children at school from remarks being passed about their parents. Every child was different and some preferred to have a job when they were fourteen. A teacher had been arranged to attend St. Joseph's at night to give the children extra attention. The Plaintiff simply did not wish to go to school. The Plaintiff was mitching from school and going down town and effectively dropped out of the school system. She had never received any complaints about Mr. Murray's dog.

Assessment of the Evidence as to the Facts

A conflict of evidence arises between the Plaintiff and the witnesses called on his behalf Mr. Buckley, Mr. Heffernan and Mr. Daly on the one part and witnesses called on behalf of the Defendant Sister Conception, Sergeant Tuohy and Sergeant Geraghty of the other part.

The Plaintiff's evidence is that he informed Sister Conception on a number of occasions that he was being subjected to sexual abuse by Mr. Murray. Sister Conception acknowledges that the Plaintiff called to her on one occasion but that his complaint then was not specific. He told her that Mr. Murray was "at him". She understood this to refer to physical abuse. I accept that the Plaintiff intended to make clear to Sister Conception that he was being sexually abused but the words used I am satisfied did not adequately communicate this to her.

Further the Plaintiff's evidence is that he attended on Sister Conception with Sergeant Tuohy and Sergeant Geraghty on which occasion an explicit complaint of sexual abuse was made. Both Sergeant Tuohy and Sergeant Geraghty deny that any such meeting took place. I am not satisfied on the balance of probabilities that such a meeting took place. Both Sergeant Tuohy and Sergeant Geraghty were members of An Garda Siochana and I am satisfied they would have taken any such complaint very seriously indeed but if the Plaintiff's recollection is correct surprisingly no action whatsoever was taken. Sergeant Tuohy took the initial statement from the Plaintiff in relation to his sexual abuse in January 1995 and there is no mention in that statement of the meeting. Sister Conception had no recollection of any such meeting. Having regard to the manner in which she dealt with the complaint against Mr. Brady in 1977 he being immediately confronted and resigning it would be surprising if she did not take similar action had she been made aware of Mr. Murray's conduct.

The Plaintiff further gave evidence of a meeting at which he made a complaint of sexual abuse and attended by Dr. Birch, Sister Conception, Sergeant Tuohy and Sergeant Geraghty. Sister Conception, Sergeant Tuohy and Sergeant Geraghty denied that any such meeting took place. Dr. Birch is deceased. Dr. Birch had an interest in St. Joseph's and was instrumental in having the children educated in outside schools. Having regard to this interest I am not satisfied that he would have ignored a complaint of sexual abuse brought to his attention. For the like reasons which I have given in relation to the alleged meeting with Sister Conception, Sergeant Tuohy and Sergeant Geraghty I am not satisfied on the balance of probability that any such meeting took place.

While I accept Mr. Heffernan's evidence I am not satisfied that having made complaints of incidents of physical abuse by Mr. Murray and then adding that there was more he did sufficient to alert Sister Conception to incidents of sexual abuse.

With regard to the meeting with Sister Conception the Plaintiff and Mr. Buckley I accept Mr. Buckley's evidence. However again I am not satisfied that the nature of the complaint made to Sister Conception was sufficiently explicit to enable her to understand that sexual rather than physical abuse was the subject. It must be very difficult for a witness after the passage of so many years to recall with any certainty the words used: however I have no difficulty in accepting the evidence of Sister Conception that had she been aware that the complaint against Mr. Murray was of sexual abuse she would have acted on the complaint and I am influenced in arriving at this conclusion by the manner in which she acted on the complaint against Mr. Brady.

Finally I accept the evidence of Mr. Daly that he attended with the Plaintiff on Sister Conception. Again I am not satisfied on the balance of probability that the complaint was made in sufficiently explicit terms to enable her to understand that the complaint was one of sexual abuse: I am satisfied that had she so understood she would have acted as she did in the case of Mr. Brady. In the case of both Mr. Buckley and Mr. Daly they were both young men and I have no doubt that the raising of such a topic as sexual abuse with Sister Conception at that time would have caused them serious embarrassment. It is common case that technical terms for bodily parts were not used nor was the phrase "sexual abuse". These are factors I am satisfied which contributed to a failure on the part of Sister Conception to understand the true nature of the complaint being made.

Save as aforesaid I accept the Plaintiff's evidence as truthful and accurate.

Medical Evidence

The medical report of Commandant O'Brien a doctor attached to the Naval Service was admitted in evidence. From the report it appears that the Plaintiff was detained in the GMH Cork from the 19^th November 1982 to the 23^rd November 1982 suffering from self inflicted lacerations to both wrists. He was very depressed in that he felt a superior officer bore a grudge against him. He had a history of being suicidal prior to admission. He was seen by Dr. Mary V. Hynes O'Sullivan, Consultant Psychiatrist on the 20^th November 1982. Her opinion was that he suffered from a personality disorder with disturbed family background. She recommended that due to his unstable and unpredictable behaviour he was unfit for service in the Naval Service. He appeared before a Medical Board on the 22^nd November 1982. The recommendation of the Board was that as the Plaintiff suffered from depression and was suicidal he should be discharged from the Permanent Defence Forces in consequence of not possessing the physical standards required for service.

Dr. Marie Hogan, Psychiatrist at St. Dympna's Hospital gave evidence. Details of the Plaintiff's attendances at St. Dympna's are detailed earlier in this Judgment and it is unnecessary to repeat them. She characterised the Plaintiff as presenting in crisis sometimes distressed, sometimes intoxicated but quickly reverting to reasonable form with a prompt discharge. On occasions the Plaintiff was kept in hospital because he had no where else to go being homeless. In terms of keeping a job she considered his functional level extremely poor. Alcohol was a major feature in relation to most of his admissions. On occasions he had suicidal ideation. His relationship with his former girlfriend and now wife and his children is very important to him. The Plaintiff's difficulties stem primarily from a moderately immature personality organisation. When faced with difficult or upsetting life situations his invariable response had tended to be inadequate, impulsive and histrionic in nature. As a result of his immature personality organisation he has a tendency to substance misuse and self destructive behaviour when in crisis. He showed no sign of psychiatric illness over the years of his attendance at St. Dympna's Hospital. A major contributing factor to his condition has been the sexual abuse which he experienced as a child. The Plaintiff first disclosed the history of sexual abuse to her in the early summer of 1995. When she furnished her report of 27^th March 1996 she had not been aware of the full extent of the sexual abuse but having become aware she is of opinion that it is a major contributory factor. People who have suffered child sexual abuse frequently experience great difficulty in disclosing it. This was particularly so at the time the Plaintiff first attended St. Dympna's in 1992. Once the Plaintiff disclosed the history he had gone on to deal with it. As a result in later times the Plaintiff has been living a much more stable existence. Counselling which the Plaintiff availed of over an almost three year period provided by Aine Ennis had been enormously beneficial for the Plaintiff. In her opinion it is not likely that he will fully integrate into a working environment and society. He will continue to experience occasional episodes for the foreseeable future. He will require continuing counselling. He is no longer dependant on St. Dympna's Hospital. The Plaintiff's abuse of alcohol is symptomatic of his abuse as is his tendency to be somewhat histrionic, dependant and avoidant. While in her report of 2^nd April 1959 she had stated that other contributory factors were parental alcoholism, poor parental relationships, disruptive home life and physical abuse were all contributory factors to the Plaintiff's condition she may then have attached too much importance to parental alcoholism. In her report of 2^nd June 1999 the witness stated that it was not possible to assess the exact extent of the psychological and emotional damage occasioned to the Plaintiff specifically as a result of his childhood experience of sexual abuse and the possibility exists that the difficulties which he displays originated in part at least in his experience of early emotional deprivation, poor parental relationships, paternal alcohol abuse and disruptive home life. There is however a high probability of a causal relationship between the symptoms and signs displayed by the Plaintiff and his experience of childhood sexual abuse.

In cross examination the witness agreed that from 1996 onwards the Plaintiff was beginning to come to terms with his problems. The Plaintiff had indicated to her that his father was a harsh individual and that he would have been slapped. Disadvantage in childhood in the period prior to the Plaintiff entering St. Joseph's could have contributed directly to the Plaintiff's psychological and emotional difficulties and had he not suffered sexual abuse he may well have developed a degree of personality disorder. While the Plaintiff's time in St. Teresa's was described by him as happy it was nonetheless disadvantaged. The loss of his mother may also have been a factor which predisposed him to depression and it may be the case that notwithstanding the disadvantages from which he suffered that were it not for the sexual abuse he would have coped with life.

Dr. Frank O'Donoghue, Psychiatrist gave evidence that he has considerable experience of dealing with the victims of childhood sexual abuse. He first saw the Plaintiff on the 22^nd September 2004 and following that produced a report. He analysed the causes given for the attendances by the Plaintiff at St. Dympna's Hospital which ranged over the following - depression, inadequate personality, pathological gambling, social inadequacy, immature personality, unstable personality or personality disorder (variously described as inadequate, dependant, immature, unstable) was the diagnosis on thirteen of the occasions on which he was admitted. On presentation the Plaintiff was co-operative and pleasant. There was no evidence of schizophrenia or organic brain damage. He was not depressed. He could cry at times. He had been suicidal in the past but almost all attempts at deliberate self harm occurred when he had been drinking and only one or two happened without alcohol. His sleep, appetite, concentration and enjoyment in things and interest in things and energy were all normal. At times he had guilt feelings – he did not complain sufficiently about Mr. Murray and the abuse continued and other boys suffered. He had no anxiety symptoms. Using the Diagnostic and Statistical Manual Version 4 the Plaintiff was examined for the presence of symptoms of post traumatic stress disorder. The Plaintiff did not meet the criteria for post traumatic stress disorder. Intelligence appeared to be in the normal range. The Plaintiff showed evidence of personality disorder specifically dependant personality disorder the essential feature of which is a pervasive and excessive need to be taken care of that leads to submissive and clinging behaviour and fears of separation arising from a perception of being unable to function adequately without the help of others. The multiple admissions to St. Dympna's Hospital are indicative of this personality type. The Plaintiff described Sister Conception as a mother figure to him. The Plaintiff suffered from alcohol dependence syndrome as well as dependant personality disorder. He had little insight into his alcohol problems and his gambling problems. The Plaintiff is functioning at 70% of his potential reduced by marital problems and alcohol dependency. Because of the benefits derived by the Plaintiff from counselling he is no longer dependant on St. Dympna's. People with the Plaintiff's personality tend to have less difficulty as they got older as they develop better coping skills with increasing maturity and both these factors are at work in the Plaintiff and accordingly improvement should continue. This would be helped if he could be reconciled with his wife. People with the Plaintiff's condition usually have poor employment records as occupational functioning may be impaired. However the Plaintiff's employment position in the future may be chequered but not to the same extent as in the past. The damage to the Plaintiff's personality from the sexual abuse caused his ongoing career and job difficulties.

In relation to alcohol dependence factors contributing to the same are genetic causes, early family life experiences, early childhood experiences, current life stresses and also childhood sexual abuse. The witness was aware of seven admissions of the Plaintiff to Cuan Mhuire in relation to his problems with alcohol. The Plaintiff lacks understanding as to how alcohol is a negative influence in his life and this may present a problem for the Plaintiff in being constructive about his alcohol problem. The Plaintiff's housing problems resulted from lack of finance which in turn was caused by his problem with alcohol. The witness had seen patients with a history of sexual abuse over 23 years and in that time can think of only 3 cases in the same category of severity of abuse as the Plaintiff's. An award in these proceedings would be beneficial in that it would eliminate his financial problems. However an award might result in further difficulties with alcohol. Some control over the award limiting the availability of cash to the Plaintiff would be beneficial. It is encouraging that the Plaintiff has been in employment for over a year as people with personality disorder do improve. Counselling has reduced the risk of problems ahead but without eliminating the same. Improvement in the Plaintiff's overall condition in recent years suggests that difficulties in the future will be less than in the past.

In cross examination the witness agreed that if the Plaintiff's drinking and gambling were under control one could be optimistic about his future. Complete abstention from alcohol is the key to dealing with an alcohol problem. In one study of in-patient alcoholics some 24% of them suffered childhood abuse. The treatment for post traumatic stress disorder is psychological and only occasionally is medication required. Depression can be a symptom of post traumatic stress disorder: anxiety is a more common symptom and this is dealt with by counselling. In relation to the Plaintiff's visits to St. Dympna's there was little that could be done for him other than supportive psychotherapy – to provide a shoulder to lean on. There had been an improvement in the Plaintiff's personality disorder in recent years. The fact that the Plaintiff was thinking of taking a supervisors course in his employment was a positive sign. Both alcohol dependency and marital problems from which the Plaintiff suffers arise from his personality structure.

Dr. Duncan Veasey, Consultant Psychiatrist gave evidence. He interviewed the Plaintiff on the 17^th May 2004. In his opinion the Plaintiff suffered severe sexual abuse, physical abuse and emotional abuse and is now suffering from symptoms of anxiety, depression and personality characteristics with behavioural manifestations which constitute a diagnosis of complex post traumatic stress disorder. While this condition appeared too late for inclusion in the Diagnostic and Statistical Manual Version 4 it is a recognised psychiatric diagnosis by those working in the field of survivors of childhood abuse. The Plaintiff's history of depression, episodes of self harm, substance misuse, gambling, difficulties in relationships, detachment, proneness to dependence and institutionalisation are core features of this diagnosis. The Plaintiff's alcohol dependence in the opinion of the witness is part and parcel of his complex post traumatic stress disorder. For the past fifteen years the witness has specialised in clinical work with survivors of sexual abuse and more recently with litigation involving children's homes.

While complex post traumatic stress disorder is only recently recognised it is now a recognised condition although there is a considerable cross over and overlap between a lot of other diagnoses. Alcohol, gambling and self harm are symptoms of the condition. The condition has been caused by trauma in childhood. The administration of alcohol to the Plaintiff by Mr. Murray has a very significant causative effect of the Plaintiff's drink problem. The abuse involved in the Plaintiff's case is the most serious which he has ever encountered. Another feature is attention seeking which has been referred to in school reports of the Plaintiff. The Plaintiff at interview had mentioned avoidance of men's toilets and this is another typical feature. Late disclosure of sexual abuse is not unusual in the Plaintiff's circumstances. The Plaintiff as a result of therapy (I assume this is counselling) has an insight into how the sexual abuse has affected him and is well on the road to understanding this. Nonetheless the Plaintiff will be compromised in the workplace if he requires regular admissions to psychiatric hospitals. He will be affected in his relationship with his partner and with work mates and his difficulties in these areas in the past are related to his condition. The Plaintiff has however improved with the passage of years and again this is typical of this condition. The completion of this litigation will assist him in getting on with his life and remove one stress factor. The witness was hopeful that the Plaintiff will be able to continue in full time employment but he may need support when subjected to stress. In cross examination the witness said that there is a very considerable cross over between personality disorder and complex post traumatic stress disorder and therefore he has no significant disagreement with the other medical experts who diagnosed the Plaintiff as suffering from personality disorder. While other factors undoubtedly contributed to the Plaintiff's condition the highest contribution is from abuse in care. For the future the Plaintiff should remain in therapy but would not require medication or treatment unless he developed further problems with alcohol, depression or anxiety. The Plaintiff's stability in his present employment is a positive sign.

Aine Ennis a Psychotherapist gave evidence. She began counselling the Plaintiff in February 1995 at the time of the Garda investigation into Mr. Murray's conduct. At that time the Plaintiff's life was chaotic in terms of his drinking and relationships. Counselling continued until late 1997 with further sessions in 1998 and ended when the witness moved to Wexford although she maintained some contact thereafter The Plaintiff has a good view of himself but is sometimes unrealistic and has little insight into his drinking problems. While the Plaintiff reads the Irish Times she would not be certain that he fully understands the issues discussed. The Plaintiff engaged very well with counselling and was committed. He improved over time but still required a lot of reassurance about decisions. He had difficulty expressing emotions. He became distressed when discussing the incident of abuse concerning a dog. He had a tendency to bottle up his emotions and release them by drinking and then become situationally depressed but not clinically this being a common feature with abuse survivors. While he is friendly and warm the Plaintiff has a dependent personality. He has a co-dependant relationship with his spouse. The witness ceased formally seeing the Plaintiff at the end of 1997 but had contact in 1998. The Plaintiff keeps in touch with her. The Plaintiff has not been in Cuan Mhuire for some time with only one admission in the last few years some eighteen months ago and was counselled for his alcohol problem there but the Counsellor would in addition have listened to him in relation to sexual abuse although not dealing with the same. The Plaintiff has social deficits that he will not overcome although they will improve over time. The main threat to his continuing in employment is his problem with alcohol which could lead to absenteeism. The witness saw the Plaintiff again at the hearing and he appeared to have taken some control of his life. The Plaintiff will need counselling well into the future to deal with some of the consequences of his abuse particularly in relation to alcohol. Initially he might need counselling once per week for a short period and then once per fortnight. He will require support after the case as he will have to adjust to the end of the litigation. Occasional crises will develop during which he will need support. However alcohol will be the focus of counselling into the future. The circumstances of the Plaintiff's life prior to the sexual abuse is also a factor in his alcohol abuse: however the sexual abuse in this case is the most serious which she had ever come across. While there has been an improvement in the Plaintiff's self esteem the condition at this time is static. While the Plaintiff had stated that he has an interest in chess, history and world affairs and wishes to do a supervisors course in her opinion he has an unrealistic view of his capacity. A person in the Plaintiff's position would tend to become institutionalised but without the added ingredient of sexual abuse he was much more likely to be in a position to become independent. Significant features in the Plaintiff's history were that he was not believed when he made complaints and that he was threatened with death if he revealed the abuse. There was nothing unusual or abnormal about leaving school at 14 years of age. The fact that the Defendants in this case had denied liability until a late stage in the proceedings also had an impact on the Plaintiff reinforcing the effect of his earlier complaints not being believed.

William Kinsella, Educational Psychologist, gave evidence. He assessed the Plaintiff on the 16^th September 2004 administering a series of tests of the Plaintiff's intelligence and of his reading, spelling, arithmetic and reading comprehension. On the Weschler Adult Intelligence Scale Third Edition a test of cognitive ability the Plaintiff had a full IQ score of 85 that is within the low average range. Further tests were then administered with the object of identifying any discrepancy between his achieved level of attainment and literacy and numeracy and the predicted levels on the basis of his overall ability: where discrepancy occurred this could be due to specific learning difficulties or external factors such as lack of educational opportunity, the nature of ones educational experience or a failure to benefit from available educational opportunity. On these tests he had good verbal skills within the average range and particularly good working memory skills. His greatest weakness related to mental arithmetic ability. The tests indicated under achievement in reading/word recognition, spelling, arithmetic and reading comprehension where he scored within the 8^th percentile, the 2^nd percentile, the 1^st percentile in relation to the first three with a comprehension age of 11.6 as opposed to full adult competency 17.0 on the fourth. The Plaintiff's profile is not one that would normally be associated with a specific learning difficulty. The difficulties are therefore related to his educational experience, a lack of educational opportunity or a failure to benefit from available educational opportunity. It is likely to be significant that the Plaintiff associates some of the sexual abuse which he suffered around homework with a consequential disengagement from homework exercises. The deficiencies in literacy and numeracy impact on the Plaintiff's ability to take up employment where those skills are relevant and he was accordingly confined to manual type work. In terms of ability the Plaintiff would have been capable of earning the average industrial male wage. The Plaintiff's lifestyle has militated against him availing of adult education or further study.

In cross examination the witness agreed that it was not uncommon for persons to leave school at fourteen years of age and yet be quite literate and numerate. In employment the Plaintiff could cope with oral instruction better than written instruction and would have difficulty with numerals. Had the Plaintiff's employment with Braun continued he would not have been in a position to progress to a supervisory position because of his deficits. The test results as to the deficits are confirmed by the Plaintiff's evidence that he has educated himself through listening to documentaries and viewing videos. The witness had seen two reports in respect of the years during which the Plaintiff attended the vocational school: he was given an opportunity to see reports on the Plaintiff's last two years at national school during the lunch recess. The reports cover the years 1971/2, 1972/3, 1973/4 and 1974/5. He agreed that in respect of the years in primary school there was no drop in performance. He was unable to say that sexual abuse was the cause of the Plaintiff's disengagement with education. I note however that where the Plaintiff's attendance is given in reports it is in two cases "very good" and in the third it is 184/194. If he attended school having consumed alcohol this could have affected his school performance. The Plaintiff's attendance at school in 1972 was unsatisfactory – 10 days absent out of 194. A report for 1972 indicated that the Plaintiff was improving at his study but was very poor at school and lacked concentration there.

Expert Evidence

Susan Tolan, Occupational Therapist and Vocational Evaluator gave evidence. In her report of the 27 November she noted that the Plaintiff had seven brothers and two sisters one stepbrother and one stepsister. His stepbrother he has never met: his stepsister is a housewife with two children living in England. His eldest brother is unemployed. His next brother was a barman but as a result of an injury is no longer fit for work. His next brother is on disability benefit but is on a back to work scheme. His next brother was raised in England from the age of five and works as a male nurse. His next brother works as a cleaner in a bar. His next brother is an area manager with a cleaning company. His next brother works for a county council as an office messenger. Of his sisters one works as a canteen assistant and the other as a factory operative with Braun. His brother Francis who would appear to be achieving was also sent to an industrial school albeit a different one. Ms Tolan's opinion is that the Plaintiff faces problems in relation to employment. His standard of education precludes him from clerical, office and administrative employment. His work history is poor. He has no special skills. His stature is such that he is unlikely to be regarded as suitable for heavy manual work. He has been banned from driving. He has a history of admissions to a psychiatric hospital. He presented to Ms Tolan as having low self esteem and poor self confidence: this conflicts somewhat with his presentation in court. He would benefit from training and there are training programmes available. Were it not for sexual abuse the Plaintiff should have been able to earn the average industrial male wage and sustain employment: however it is difficult to predict what he would have achieved had he not suffered sexual abuse. It should have been possible for him to work as a general factory operative, machine operator, forklift truck driver or van driver or sales assistant.

Ms Tolan gave the following as current rates of pay –

Male industrial wage €620.98 per week

Semi skilled production worker €433.53 per week

Sales assistant €381.54 per week

John Logan, Actuary gave evidence. While the Defendant objected to the admission of such evidence I allowed the introduction of the same reserving for further consideration as to whether it was appropriate to make any allowance in respect of future earnings on the basis of actuarial calculations. His evidence was that the appropriate multiplier for future loss of earnings up to age 65 was €732 per €1 per week. On the basis of the average industrial wage his current net of income tax earnings would be €507 or €550 per week depending upon whether he was separately assessed for income tax or not. Had he been consistently employed up to date on the same two bases his loss of earnings on the basis of the average industrial wage amounts to €314,000 or €329,000. Should interest be awarded on these sums at Courts Act rate the same would amount to €216,000 or €220,000. The total of amounts received by the Plaintiff by way of actual earnings and social welfare payments amounted to €113,000.

Assessment of the Evidence of Medical and Professional Witnesses

On the evidence I am not satisfied as a matter of probability that the Plaintiff will require further medical treatment. He will however require counselling and an appropriate sum to provide for the same is €10,000.

I have already described the Plaintiff's chaotic lifestyle to date and his disrupted working life. However I am satisfied that in recent years there have been many hopeful signs. The cycle of admissions to St. Dympna's Hospital has been broken. The Plaintiff performed his employment with Braun satisfactorily and indeed was a shop steward there. He has retained his present employment. Alcohol is much less a problem than in the past. The criminal proceedings taken against the perpetrator have benefited the Plaintiff in coming to terms with his sexual abuse and the conclusion of the present proceedings after a short period of re-adjustment is likely to benefit him further. The evidence of the medical witnesses I accept: I do this notwithstanding the divergence in diagnosis between Dr. Duncan Veasey and the other medical witnesses for whatever the diagnosis the effect upon the Plaintiff appears to me to have been the same. I accept that while not the sole cause or explanation of the Plaintiff's condition from the date of his sexual abuse up to date that sexual abuse has been a major contributory factor to the same. I take into account however that the Plaintiff's life from the time he left care up to date would to some extent have been adversely affected by other factors in his life and in particular early emotional deprivation in the context of poor parental relationships, the death of his mother, the indications that his father abused alcohol, the lack of any continuing relationship with his father, the circumstance of having been in care and consequent denial of an appropriate home life. I take into account the consensus of an improvement in recent years particularly since his disclosure of the sexual abuse and the prosecution of the offender. I accept the evidence of Dr. O'Donoghue that persons with the Plaintiff's personality tend to have less difficulty as they get older as they develop better coping skills with increasing maturity. I also accept his evidence that the improvement which has been noticed will continue. As to the reason for the Plaintiff disengaging from education in his last year the most likely cause of this is that given in evidence by Sister Conception rather than the abuse.

As to what would have been the Plaintiff's employment history but for the sexual abuse I have concluded that he would have remained in consistent employment subject to the ordinary Reddy v Bates factors. I have regard to the achievements of his siblings: I determine as a matter of probability that his employment would have been at the semi skilled level. In compensating the Plaintiff I propose to adopt a pragmatic approach. I propose awarding the Plaintiff a sum by way of general damage in respect of his loss of earnings to date on the basis of my finding as to the likely course which his employment would have taken were it not for his having been sexually abused. I propose availing of the actuarial evidence as a basis for arriving at an appropriate figure. The Plaintiff's history of attendances at a psychiatric hospital, his recourse to alcohol which appears to be precipitated by any stress in his life and the probability having regard to his condition as diagnosed that such stresses will occur from time to time that he might experience more difficulty than would otherwise be the case in obtaining employment in the event of him losing a position. In all the circumstances I am satisfied that the basis for an award for future loss of earnings on an actuarial basis has not been made out but that in the light of the evidence I should make some allowance for difficulty in obtaining employment in the future beyond that which might otherwise have affected him.

Damages

(i) General Damages

Damages are claimed under the headings of negligence and breach of duty, assault and battery, false imprisonment and breach of and failure to vindicate his constitutional rights. The award must comprehend each of the foregoing headings. However in this case a composite figure is appropriate in respect of assault both sexual and physical and negligence and breach of duty. The Plaintiff's evidence in relation to assault was that on one occasion he was struck with a hurley on the face and his nose broken and that following incidents of abuse he was regularly beaten as he viewed it to dissuade him from making complaints. The assault with the hurley followed his complaint to the school doctor. The incident in the school vegetable garden must have been particularly frightening for him. The incidents of sexual abuse themselves were attended with assaults of a brutal and in the case of the Alsatian dog a depraved nature. Insofar as breach of the Constitution is concerned a complaint under Article 40.3.1 of the Constitution is made I am satisfied that the award in respect of sexual and physical abuse should comprehend this and likewise the complaint under the Constitution Article 40.3.2, 40.4 and Article 42.5. A further complaint is made that the Defendants failed to require or ensure that the Plaintiff received a certain minimum education, moral, intellectual and social, in breach of Article 42.3.1. On the evidence I am not satisfied that this claim has been made out. The standard of education which the Plaintiff received was not unusual at the time. I am not satisfied as a matter of probability that the Plaintiff's failure to avail of the same to the extent to which his ability would have enabled him was due to the sexual abuse: it could equally be due to the other factors identified by Mr. Kinsella. There are four school reports available two in respect of periods before and two in respect of periods after the sexual abuse commenced: I am unable to find any significant difference or deterioration in the reports between these two periods. In terms of moral education the Plaintiff knew that what was happening to him was wrong. Finally the Plaintiff pleads that the Defendants failed to supply by appropriate means the place of the Plaintiff's parents contrary to Article 42.5 of the Constitution. That place was not supplied insofar as the sexual and physical abuse recorded in this Judgment took place but not in other respects: an award under this heading is comprehended within the award of general damages in respect of such sexual and physical abuse.

The Plaintiff claims in his Statement of Claim that he was detained beyond his 16th year. This appears to be correct in that accommodation was provided for the Plaintiff within the school (although not within Summerhill) after he attained his 16^th birthday and while he was working. I am satisfied that this was a provision charitably made for the Plaintiff of which he was free to avail of or not. This claim has not been made out.

Accordingly I award general damages as follows:-

(a) To date €165,000

(b) Into the future €35,000

(ii) Special Damages

(a) Loss of Earnings to Date

I am satisfied that the Plaintiff has suffered significant loss of earnings to date and that a major contributory factor to this is the sexual abuse which he sustained. I must however take into account the difficulties from which as a matter of probability the Plaintiff suffered as a result of deprivation in his emotional life. I proceed generally upon the basis that he would have been employed at a semi skilled level rather than at the average industrial wage. I take into account the decision in Reddy v Bates and have regard to the type of employment in which the Plaintiff was likely to become involved having regard to his education. I take into account that his continuation in employment would to some extent at least have been interfered with by the consequences of emotional deprivation. I apply these considerations to the figure given in evidence by the Plaintiff's actuary whose evidence is of assistance in arriving at an appropriate award of general damages under this heading. I arrive at an award as follows. If the entire loss of earnings could be attributable to sexual abuse and the Plaintiff would have obtained employment as a semi skilled person the loss at current rates would be €450 per week net of income tax. An appropriate capitalisation of this on the basis of the actuary's evidence is €287,000. From this must be deducted however sums received by way of social welfare benefit and actual earnings which total €113,000: the net loss accordingly is €174,000. However the Plaintiff also worked marking the board in a bookmakers office for some time and no deduction was made in the evidence given to me in respect of this: I propose taking this into account in the deduction which I make under Reddy v Bates. For the purposes of a Reddy v Bates deduction I take into account the nature of the employment in which the Plaintiff was likely to engage having regard to his educational attainments but also the effect upon him of the emotional deprivation from which he would in any event most likely have suffered and I propose deducting a sum of €20,000. Accordingly the loss of earnings to date is assessed at €154.000. In addition the Plaintiff is entitled to a sum for interest. On the basis of the Actuary's calculation the interest on this sum at Courts Act rates would amount to approximately €96,000. This gives a total of €250,000 for earnings and interest. However the evidence before me is that the sexual abuse was a major contributing factor to but not the sole cause of the Plaintiff's condition which in turn is the cause of his employment history and in these circumstances I propose awarding to the Plaintiff 60% of that sum which is €150,000 under this heading.

(b) Future Loss of Earnings

The Plaintiff has not satisfied me as a matter of probability that he will continue to suffer loss of earnings into the future. He is currently earning at a level appropriate to a semi skilled worker. As a matter of probability he will continue to do so. I am impressed by the manner in which he maintained his employment with Braun until discharged on the grounds of redundancy with a great many other workers. I am also impressed by the manner in which he has held down his present employment for almost one year and by his ambitions to progress within that employment. While he may not fulfil that ambition it is indicative of his state of mind. While ideally he should avoid alcohol on the basis of the evidence before me it has not interfered significantly with his present employment and not to the extent that such employment is threatened. However should he choose to leave his present employment or be made redundant or dismissed he will face some difficulties more than would otherwise have been the case in obtaining alternative employment having regard to his history. In these circumstances I propose making an award of €10,000 in respect of future loss of earnings to compensate him for the extended period during which he may be unemployed should he lose his present employment.

(c) Other Special Damage

Cost of Future Counselling €10,000

Exemplary Damages

The Plaintiff claims exemplary damages and relies inter alia upon the decisions of the Supreme Court in McIntyre v Lewis & Others 1991 1 IR 121 and Conway and Ors v Irish National Teachers' Organisation 1991 2 I.R. 305. I accept the Defendants' submission that exemplary damages can be awarded against a Defendant whose liability is vicarious. Exemplary damages are awarded to mark the Court's disapproval of the conduct complained of. However it is well settled that exemplary damages should not be awarded where the amount payable in the form of compensatory damages constitutes a sufficient public disapproval of and punishment for the form of wrongdoing. I am satisfied in the circumstances of this case that the substantial award of compensatory damages renders it unnecessary to consider whether exemplary damages could or should be awarded in the circumstances giving rise to this claim.

Aggravated Damages

Aggravated damages are compensatory in nature and can be awarded in cases in which the injury to the Plaintiff has been aggravated by malice or in the manner of doing the injury, that is, the insolence or arrogance by which it is accompanied: Rookes v Barnard 1964 1 All E.R. 347. The award which I have made of general damages is intended by me to take into account all the circumstances which surrounded the sexual and physical abuse. I have taken into account that the physical abuse inflicted on the Plaintiff as outlined by him in evidence was closely associated with the sexual abuse and as a matter of probability was motivated by an intention on the part of Mr. Murray to dissuade the Plaintiff from making complaint.

The Plaintiff complains that in these proceedings the Defendants maintained a denial of liability until a very late stage. I do not see this as an abuse of the process of the Court in any way and a Defendant is always entitled to require the Plaintiff to prove his case. To some extent at least the fact that liability was admitted in advance of the hearing was a concession which the Defendants were not obliged to make. The factors which might lead to an award of aggravated damages in this context were set out by Nourse J. in Sutcliffe v Presdram Limited 1991 All E.R. 269 at 288 –

"Conduct calculated to deter the Plaintiff from proceeding; persistence, by way of a prolonged or hostile cross examination of the Plaintiff or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct whether of the preliminaries of or of the trial itself in a manner calculated to attract further wide publicity, and persecution of the Plaintiff by other means."

In this jurisdiction Cooper v O'Connell Supreme Court 5^th June 1997 it was held that the fact that the Defendant had put liability in issue was insufficient to justify an award of aggravated damages. In the circumstances I do not propose awarding aggravated damages.

Conclusion

I award the Plaintiff the following sums –

General damages for pain and suffering to date €165,000

General damages for pain and suffering into the future €35,000

Loss of earnings to date €150,000

Loss of earnings into the future €10,000

Cost of future counselling €10,000

_______

Total: €370,000

Approved:

Finnegan P.