H199
Judgment Title: O'C -v- The K L H & Anor Composition of Court: Dunne J. Judgment by: Dunne J. Status of Judgment: Approved |
Neutral Citation Number: [2006] IEHC 199 The high court [2002 No 11224 P]Between M.O’C. Plaintiffand First Named DefendantThe K L H And Second Named Defendant M D Judgment of Ms. Justice Dunne delivered on the 22nd day of June 2006 The first named defendant by notice of motion dated 8th June, 2006, seeks an order setting aside the notice of trial by a judge and jury herein dated 14th March, 2006. The notice of motion herein is grounded upon an affidavit of Caroline Keane solicitor on behalf of the first named defendant. The basis upon which it is sought to strike out the notice of trial herein is that the matters at issue in these proceedings are not such as should proceed before a jury. As set out in the affidavit of Caroline Keane, it is claimed that the plaintiff’s claim herein is pursuant to contract and that insofar as the right to a jury is based on a claim for assault by the second named defendant it is not a matter that should proceed by way of trial by jury. Some correspondence passed between the solicitors for the first named defendant and the plaintiff in regard to this issue which reached no conclusion on the issue but I do not think it is necessary to refer to that correspondence. A replying affidavit was sworn by the solicitor acting for the plaintiff. Save that the solicitor for the plaintiff Patrick O’Riordan complains of the delay in bringing this application there is nothing else of relevance or of assistance contained in the affidavit to which reference need be made. Mr. Callanan SC on behalf of the first named defendant referred to s. 1(1) of the Courts Act, 1988. It provides as follows:
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty, whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision, (c) under s. 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act 1936, or a question of fact or an issue arising in such an action, shall not be tried with a jury. Section 1(1) therefore abolished the right to a jury in actions for damages for personal injuries caused by negligence, nuisance or breach of duty. A limited saver was provided by subs. 3 which provides as follows: 1 (3) Subsection 1 of this section does not apply in relation to -
The action herein is not one which comes within the scope of s. 1(3) (a). At issue between the parties herein is the question of whether the action herein comes within the scope of s. 1(3) (b). Mr. Callanan SC in his submissions stated that the statement of claim herein contained a multiplicity of claims including breach of contract, negligence, breaches of employment law, inter alia. The matters complained of range over not just one incident or one type of incident but consist of claims in respect of other matters as well. Accordingly, a jury would be dealing with a number of separate incidents not just flowing from incidents of sexual assault or assault simpliciter. Accordingly, he submitted that the statement of claim herein ranged too widely from the exception provided by s. 1 (3) (b). It may be useful to consider the statement of claim herein. Paragraph 5 of the statement of claim sets out in detail the alleged express and or implied terms of the plaintiff’s contract of employment. Without going through all of those in detail it would be helpful to refer to the first alleged term namely:
9 Wrongfully and in breach of the contractual terms set out above, commencing in December, 1998, and continuing until 2001, when the plaintiff was forced to resign from her position with the first named defendant, the plaintiff was subjected to ongoing harassment, victimisation, intimidation and isolation by the defendants and each of them and/or their respective servants or agents. Furthermore and in further breach of the terms set out above the first named defendant, its servants or agents systematically ignored complaints made by the plaintiff and exposed her to an ongoing risk of injury, loss and damage by reason of their deliberate refusal to deal with same.” Paragraph 12 of the statement of claim relates to the manner in which the first named defendant is alleged to have dealt with complaints made by the plaintiff in respect of the first named defendant and in relation to a loss of statements made by the plaintiff in relation to the said incidents. Again that aspect of the plaintiff’s claim is referred to for the purpose of seeking aggravated damages or exemplary damages. Ms. Donnelly SC appeared on behalf of the plaintiff herein. She argued that the proceedings herein had been mischaracterised by Mr. Callanan. This was not a breach of contract case as he suggested. On the contrary it was an assault case. She referred to the decision of the Supreme Court in the case of Sheridan v. Kelly & McDonnell (Unreported, Supreme Court, 6th April, 2006). That case concerned an allegation of assault including sexual assault against a Christian Brother at a school in which the plaintiff was a student. In that case the plaintiff served a notice of trial for judge and jury. The second named defendant served a notice of motion to have the case transferred to the personal injuries list to be tried by a judge sitting alone. In the High Court, Kearns J. made an order granting the reliefs sought because the plaintiff had joined another cause of action with his claim for damages for “intentional trespass to the person.” Ms. O’Donnell placed particular emphasis on a passage from the judgment of Fennelly J. at p. 4 thereof in which it was stated as follows:
I do not think that any of these matters take this case outside the scope of subsection (3) (b). It is clear that the core of the plaintiff’s claim is that he was sexually assaulted by the first named defendant. Everything alleged can be traced back to that key allegation. Insofar as the claim is simply based on alleged vicarious liability, there is full correspondence between the damages alleged to flow from the acts of the two defendants. However, the subsection allows the plaintiff in certain cases and provided he claims damages as a result of one of the two specified causes of action, namely “false imprisonment, or intentional trespass to the person,” or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection requires however that these two causes of action be linked by a claim that the damages arose “in respect of the same act or omission.” The focus is on the damages and the relevant act or omission which causes them. The same act may give rise to a claim under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute negligence or trespass. The subsection does not require that the damages be identical. They may be “claimed in addition, or as an alternative, to the other damages claimed….”” It will be seen from the passage above quoted from the judgment of Fennelly J. in the Sheridan case that the facts of the present case go far beyond what was considered by the Supreme Court in that case. Clearly a plaintiff can seek a jury trial provided damages are claimed for either false imprisonment or intentional trespass to the person or both where he also pleads that damages have been caused by negligence or indeed, breach of contract. However it is clear from that case that if more than one cause of actio7n is claimed, the claim for damages must arise in respect of the same act or omission. As was stated by Fennelly J. therein
If on the other hand one is going to draw a principled distinction which justifies abandoning the rule that damages from mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and intended to cause harm or at least acted without caring whether he caused harm or not. … Iin my opinion, therefore, the claimants can build nothing on Wilkinson v. Downton [1897] 2 QB 57. It does not provide a remedy for distress which does not amount to recognised psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established. I am also in complete agreement with Buxton LJ [2002] QB 1334, 1355 to 1356, paras. 67-72, that Wilkinson v. Downton had nothing to do with trespass to the person.” Mr. Beatty responded on behalf of the first named defendant. He disagreed with the contention that the matters relied on by Ms.Donnelly, namely harassment victimisation etc., constitute intentional trespass to the person. He pointed out that there was no authority to support that contention. He added that the scheme of the section was such as to exclude from the scope of the Act actions where assault and battery had been pleaded in order to have a jury trial in what was an action for damages for personal injuries caused by negligence. In the present case a number of heads of damages were claimed in respect of a number of causes of action. He argued that this was clearly not what was intended to be permitted by the exception contained in subs. 3. Having regard to the Supreme Court decision in the case of Sheridan v Kelly and McDonnell referred to above, it is clear to me that insofar as the claim herein is for damages for a sexual assault together with assault simpliciter, it would be open to a plaintiff in such circumstances to seek damages under the heading of breach of contract and negligence provided that that claim for damages arose out of the same act or omission. In this case the claims made by the plaintiff go far beyond that. There are a number of separate causes of action in respect of separate incidents and an ongoing pattern of behaviour. As such I do not think that the subsequent matters complained of by the plaintiff could be said to be within the scope of s. 1(3) (b). A further argument was made by Ms. Donnelly to the effect that the matters complained of between 1998 and 2001 which are severally described as victimisation, isolation; harassment and so on could come within the definition of intentional trespass to the person. Not only is there no authority to support that contention, her argument is premised on the slim foundation provided by the decision in the case of Wilkinson v. Downton. I find the comments of Hoffman LJ to the effect that Wilkinson v. Downton has nothing to do with trespass to the person to be a persuasive authority. If one looks briefly at the particulars given by the plaintiff at paragraph 10 of the statement of claim herein as to the effect of the matters complained of in paragraph 9 of the statement of claim it may illustrate the extent of the problem I have in accepting that the matters complained of amount to intentional trespass of the person:
It seems to me to be impossible to reach the conclusion contended for by Ms. Donnelly that the matters complained of by the plaintiff amounting to intimidation, harassment and victimisation can come within a definition of intentional trespass to the person. I am not of the view that on their own or considered together perhaps under the heading of harassment, they could be considered as a tort as opposed to a heading of damages in negligence or breach of contract but it is not necessary to come to a final view on this issue. In the circumstances I think that the notice of trial herein should be set aside. |