High Court: Woman’s tort claim for alleged sexual assault and rape by school principal dismissed

About this case:

• Citation:
  [2024] IEHC 35
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Tony O'Connor

Delivering judgment for the Court of Appeal, Mr Justice Tony O’Connor found it “impossible to reconcile the allegations of the plaintiff with the evidence of the defendant. The refrain about the burden of proof in such a serious claim will forever remain in the minds of the parties.”

Background

The plaintiff claimed that between 2009–2010, the defendant primary school principal started giving her lifts to her secondary school which was adjacent to his place of employment.

The plaintiff alleged that during the course of these lifts, the defendant had repeatedly sexually assaulted and raped her. The defendant resolutely denied all of her allegations.

A formal statement was made by the plaintiff to gardaí in February 2011. In 2012, the plaintiff was informed that the Director of Public Prosecutions (DPP) had decided not to prosecute the defendant.

The plaintiff brought civil proceedings seeking damages in tort.

The evidence

The High Court heard from the plaintiff that the defendant started giving her lifts to school in September 2009, and that as a result of the alleged abuse, the plaintiff was regularly late for school. The plaintiff claimed that she had a good relationship with the vice-principal of her school due to her role as prefect, and that she approached her with thoughts of self-harm over the alleged incidents in the course of the 2010 Christmas holidays. When cross-examined, both the plaintiff and her father had difficulty recalling when the lifts had started.

The defendant suggested that the plaintiff’s father had asked him to bring the plaintiff to school in April/May 2009, an arrangement that he understood was to last a couple of weeks due to the ill-health of the plaintiff’s mother. The defendant testified that he was never late to school or to his morning meetings with substitute teachers, staff or parents, and never deviated from his course except for an enforced detour in May 2010.

The defendant further suggested that the plaintiff had texted him on the second last day of school in 2010 to tell him that she was not going to school on the final day of term.

The court considered that: “The plaintiff had not disagreed with the suggestion that she finished taking lifts on the second last day of the academic year. There is no dispute that the plaintiff had a mobile phone and used it during the 2009/2010 academic year. The inability of the plaintiff or her father to clarify the circumstances surrounding the requests made of the defendant to give lifts is notable because it demonstrated an inability to recall relevant specifics.”

The plaintiff’s replies to particulars suggested that the defendant texted her father in August 2010 to say that he would not be bringing her to school any more. In court, the plaintiff stated that she did not know about any requests or notice of cessation for the lifts, and her father could not remember how the cessation was notified. The defendant and his wife were clear that the defendant had declined the plaintiff’s own request for a continuation of the lifts.

The High Court

Mr Justice Tony O’Connor set out that the plaintiff was required to establish that her version of events is more likely than the defendant’s denial, and that there is a “degree of flexibility in the standard to be applied” as per Re Thirty First Amendment of the Constitution (Children) Bill 2012 [2013] IEHC 458.

The High Court commented that it could not ignore the “apparent unreliability” about the history of assaults and rapes when it is applying the relevant burden of proof, noting: “In itself, the inability to recall specific detail does not establish unreliability. However, that lack of clarity coupled with the absence of records or another witness to support the suggestions that her grades slipped particularly during the 2009/2010 academic year or that she had been late for the start of many school days does not assist the plaintiff in discharging the burden of proof.”

Mr Justice O’ Connor also found it “regrettable” that the plaintiff had failed to explain the reason for her eight-year delay in furnishing replies to particulars concerning the alleged sexual assaults and rape, remarking: “Neither the plaintiff nor any of the expert witnesses offered a good reason for the delay.”

The judge emphasised:

The court also found it “worthy of comment that the plaintiff in preparing for this trial since the service of the notice of intention to proceed dated 1 September 2020, took another two years to describe the litany of events which she described more briefly in her own evidence”.

Mr Justice O’Connor found that the defendant’s assertions were corroborated by evidence given by school staff, noting that he was “not satisfied by the plaintiff about her account of being regularly late for the commencement of her school days in the relevant period. The plaintiff’s assertion in this regard underpins her allegations of what can only be described as violent rapes, some committed away from the regular route taken by the parties to school.”

Conclusion

Accordingly, the judge determined that the plaintiff failed to establish her claim to the lower civil standard of proof required of her and dismissed the proceedings.

Kelly v. Downey [2024] IEHC 35