Court reduces damages against Murray by €250k under s.17 1961 Act due to concurrent liability with Tusla.

THE HIGH COURT

[2025] IEHC 421

RECORD NO: 2614/2022P

BETWEEN:

KELLY KEMMY

PLAINTIFF

STEPHEN MURRAY

FIRST NAMED DEFENDANT

AND

TUSLA, THE CHILD AND FAMILY AGENCY

SECOND NAMED DEFENDANT

Judgment of Ms. Justice Emily Egan delivered on the 23rd day of July 2025

Introduction and factual background ............................................................................... 3 Service ............................................................................................................................. 4 Oral Evidence ................................................................................................................... 5 Evidence of the plaintiff .................................................................................................... 5 Reporting the sexual abuse and consequent criminal proceedings ...................................... 7 Aftermath ................................................................................................................... 7 Psychological impact .................................................................................................... 8 Vocational and educational impact ................................................................................. 9 Other special damages ............................................................................................... 10 Evidence of Geraldine Mullen .......................................................................................... 10 Evidence of Dr. Catherine Norton .................................................................................... 11 Legal principles in relation to general damages for child sexual abuse .......................... 14 MN v.

SM ..................................................................................................................... 14 Awards for psychiatric damage under the Guidelines.......................................................... 17 Different assessment methodologies as between MN and the Guidelines .............................. 18 Do the Guidelines apply to cases of child sexual abuse? ..................................................... 19 Legal submissions sought on the applicability of the Guidelines to cases of child sexual abuse ............................................................................................................................... 19 Submissions of the plaintiff and the Attorney General on the applicability of the Guidelines to cases of child sexual abuse ......................................................................................... 20 Discussion and conclusion that the Guidelines do not apply to cases of child sexual abuse .. 20 The 1961 Act ......................................................................................................... 20 The PIAB Act 2003 ................................................................................................. 21 The 2004 Act ......................................................................................................... 22 The Judicial Council Act 2019 .................................................................................. 24 General damages: the submissions of plaintiff and the Attorney General .............................. 25 Recourse to the Guidelines as a reminder of the pre-existing common law principles and in updating the upper limit on general damages ................................................................... 26 Can serious cases of child sexual abuse attract general damages approaching or at the upper limit? ........................................................................................................................... 27 The currently prevailing upper limit ................................................................................. 29 Application of the above legal principles to the present case ......................................... 30 Consideration of the specific factors outlined in MN ........................................................ 30 Consideration of fairness to the plaintiff and to the defendant ......................................... 31 Consideration of proportionality to damages awarded in other cases of child sexual abuse, to the scheme of general damages and to the currently prevailing upper limit on general damages .................................................................................................................. 32

Conclusion on general damages ...................................................................................... 38 Consideration of special damages .................................................................................... 39 The impact of the plaintiff’s settlement with Tusla upon her action against Mr. Murray ........... 41 The parties’ submissions............................................................................................. 41 Are the defendants concurrent wrongdoers? ................................................................. 41 Deduction of the greater of Tusla’s settlement payment (€250,000) or the amount which Tusla would have been liable to contribute .................................................................... 43

Conclusion ..................................................................................................................... 44

Introduction and factual background

1. This case concerns the appropriate level of damages to be awarded in civil proceedings for a continuum of child sexual abuse.

2. In 2001, the plaintiff was taken into the care of the second named defendant (“Tusla”) who subsequently placed her in the foster care of the first named defendant (“Mr. Murray”), where she remained until 17th July, 2019.

3. When the plaintiff was eleven years old, Mr. Murray started to sexually abuse her. The abuse, which involved repeated acts of rape, continued until November or December 2015, at which stage the plaintiff was eighteen years old.

4. In July, 2019, the plaintiff reported this sexual abuse to An Garda Síochána. Mr. Murray was subsequently convicted of rape and sentenced to twelve years imprisonment (with one year suspended). He is currently imprisoned.

5. The plaintiff issued these proceedings against both defendants. The claim against Tusla sought damages for negligence in placing the plaintiff in the foster care of Mr. Murray and in subsequently failing to take reasonable steps to ensure her safety. The claim against Mr. Murray seeks damages for personal injuries and rape, sexual assault, assault, battery, false imprisonment and trespass to the person

6. The plaintiff and Tusla entered a mediated settlement in the amount of €250,000 plus High Court costs and the case against Tusla was struck out. It was an express term of the settlement that the plaintiff maintained her right to pursue a claim against Mr. Murray.

7. On 19th February, 2024, Coffey J. granted the plaintiff judgment in default of appearance as against Mr. Murray and directed that damages be assessed before a judge without a jury.

Service

8. The plaintiff’s solicitor has sworn an affidavit of service, exhibiting proof of service on Mr. Murray in Mountjoy Prison, of the following: the Book of Pleadings; the order granting judgment in default of appearance; the plaintiff’s schedule of witnesses pursuant to S.I. 391/1998; the schedule of special damages and the plaintiff’s filed legal submissions. These relevant documents were served by email upon Ms. Patricia Kelleher, Governor, on 24th September, 2024. On 26th September, 2024, Ms. Kelleher confirmed that the said documents had been furnished to Mr. Murray. These documents were also served by ordinary prepaid post on 20 th January, 2024 to Mr. Murray as advised by Ms. Kelleher.

9. The plaintiff’s solicitor also personally attended at Mountjoy Prison on 6 th March, 2025 and handed in a further copy of the documentation previously served together with the order of this court dated 12th November, 2024 directing the exchange of legal submissions with the Attorney General (as to which see below).

10. In subsequent email correspondence, the plaintiff’s solicitor sought confirmation from the Irish Prison Service that the entirety of the above documents had been duly furnished to Mr. Murray. This was confirmed on 14th March, 2025 and again on 17th March, 2025.

11. In addition to the above, the plaintiff’s solicitors offered to furnish to Mr. Murray, at his request, a copy of the medical report of Dr. Catherine Norton, consultant neuropsychologist, dated 24th July, 2022, which was of a highly confidential and sensitive nature. No such request was made by Mr. Murray.

12. I am duly satisfied that the Pleadings, all court orders, the plaintiff’s schedule of witnesses, her schedule of special damages and all relevant legal submissions have been duly served upon Mr. Murray in Mountjoy Prison and that, for his own reasons, Mr. Murray has chosen not to participate in this litigation. I am also satisfied that the participation of the Attorney General as legitimus contradictor has ensured that the important legal issues in this case have been fully and fairly argued.

Oral Evidence

13. I will now set out the evidence of the plaintiff, her neighbour Ms. Mullen and Dr. Norton.

Evidence of the plaintiff

The sexual abuse

14. The plaintiff, who does not seek anonymity in these proceedings, was born on the 1st November, 1997 and is one of six siblings. At age four and a half, the plaintiff and her younger two siblings were placed in foster care with Mr. Murray and his wife.

15. The plaintiff’s early years with the Murrays were reasonably good. The plaintiff always had the impression that she was Mr. Murray’s favourite child, which she now realises was more of a curse than a blessing.

16. Over time, it became apparent that Mr. Murray had serious behavioural issues. He was a heavy drinker and became aggressive when drunk. He frequently pushed, shoved and shouted at the plaintiff and her siblings.

17. The plaintiff described a horrific cycle of escalating abuse commencing when she was only eleven years of age. The first incident of abuse occurred at home in the sitting room when the plaintiff’s younger brother and sister were present. Mr. Murray had been in the habit of asking the plaintiff to be “his blanket”, which meant that she would lie on top of him. On this occasion Mr. Murray fondled the plaintiff’s waist, tummy, breasts and vagina. Within a couple of weeks Mr. Murray progressed to putting his fingers inside the plaintiff’s vagina. This occurred approximately two or three times a week in the sitting room.

18. The plaintiff clearly recalls the first time that Mr. Murray came into her bedroom at night. He knelt on the floor beside the plaintiff’s bed, fondled her breasts and put his finger inside her vagina. The plaintiff was frightened when Mr. Murray pulled down her pyjama bottoms and she tried to hold them up. When she asked him what he was doing, Mr. Murray told her to hush. Mr. Murray put his penis into the plaintiff’s vagina which was incredibly painful. This penetration appeared to go on forever. The plaintiff has difficulty putting into words the excruciating physical pain of the rape, which was accompanied by feelings of confusion and shame. When Mr. Murray was finished, he put on his clothes and left the room without saying anything to the plaintiff. The following morning Mr. Murray acted as if nothing had happened, which the plaintiff could not comprehend.

19. The same thing occurred approximately two or three days later. Mr. Murray told her that this abuse was normal, that it was a secret and that if she ever told anyone it would ruin the family. These rapes continued to occur four or five times a week for between six and seven years. Occasionally, if the plaintiff was menstruating, Mr. Murray would force her to give him a blow job.

20. On occasion, when the plaintiff pleaded with Mr. Murray to stop or denied him sex, he would punish her with silence for days. Her siblings would feel the tension and wonder what she had done to upset Mr. Murray. The plaintiff knew that speaking the truth would mean ruining the lives of her siblings and she wanted to protect them.

21. The plaintiff recalls that Mr. Murray had two hip replacements, two or three years apart after which the rapes ceased for approximately three or four months and the plaintiff hoped that they would not recommence. Unfortunately, however, they did.

22. As she got older the plaintiff knew that something was very wrong and that this was not normal behaviour. However, she felt trapped, helpless and frightened. The plaintiff’s shame was so overwhelming that she felt she could not turn to anyone for help. The plaintiff trusted no one and had no safe place. Mr. Murray frequently threatened the plaintiff with the breakup of her family if she did not submit to the abuse or if she told anyone about it. He also made veiled comments to a similar effect in the presence of other people. Because she and her siblings had no other home, the plaintiff complied.

23. The plaintiff’s teenage years were dark. At times she had suicidal thoughts and did not want to exist because she was so numb, ashamed and embarrassed. The plaintiff regularly cried herself to sleep at night.

24. The plaintiff turned eighteen on 1st November, 2015. Shortly afterwards the rapes ceased, which the plaintiff attributes to the fact that she started seeing a boy her own age. Although Mr. Murray was extremely jealous of her boyfriend, he did not try and have sex with the plaintiff whilst she was in this relationship.

25. The plaintiff describes an event on 29th August, 2017 when her boyfriend confronted Mr. Murray as to why he was so hostile towards him. Mr. Murray exploded with rage. Because the plaintiff tried to protect her boyfriend, Mr. Murray hurled a chair at her. As the plaintiff flinched and moved out of the way, Mr. Murray grabbed her boyfriend. The plaintiff’s younger brother tried to intervene, and Mr. Murray grabbed him by the throat and choked him. Mr. Murray only stopped when the plaintiff and his wife ran outside into the street to summon help.

26. When the plaintiff reported this particular incident, the social workers contacted the family and arranged a family therapy session at which it was agreed that Mr. Murray would cut down on his drinking and that the plaintiff and her siblings would try their best not to trigger his anger. There was, the plaintiff states, no follow up after this.

Reporting the sexual abuse and consequent criminal proceedings

27. Shortly after the plaintiff and her boyfriend broke up, Mr. Murray sent the plaintiff two text messages: the first of which stated “stupid question could we ever again? Just wondering if no, no prob[lem] just miss you”. When the plaintiff replied, “No sorry”, Mr. Murray texted again “Ok had to know, just wishing”. The plaintiff replied “OK”. Mr Murray responded with “do you hate me for asking?”

28. The plaintiff was terrified that Mr. Murray would try and start having sex with her again. She also wisely concluded that the text messages could provide evidence of the abuse. She therefore reported the abuse to An Garda Síochána on 17th July, 2019, followed by a full statement on 27th July, 2019.

29. The plaintiff found the criminal trial process extremely daunting. Mr. Murray was furnished with the Book of Evidence around December 2021 and then pleaded guilty.

Aftermath

30. The plaintiff states that the day that she reported the rapes to An Garda Síochána, she lost the only home and the only family that she had. The Murrays sent her some scant personal items from her bedroom. However, the rest of her worldly possessions, including her bedside locker and bed, were burned. A representative of Tusla informed the plaintiff that she and her siblings would not be able to return to the house. Because her brother and sister were both under eighteen, they were housed by Tusla. The plaintiff’s brother was assisted in renting a bedroom in a boarding house and her sister was placed in residential care. However, the plaintiff was given no assistance in finding housing or in meeting daily expenses. In September, 2019, the plaintiff moved in with a neighbour, Ms. Geraldine Mullen (“Ms. Mullen”) with whom she resided until the summer of 2023. The plaintiff gave birth to a daughter on 5th February, 2022.

Psychological impact

31. The psychological impact of the abuse is set out in more detail in the evidence of Dr. Norton below. In brief, the plaintiff experiences flashbacks and nausea, particularly at night. The triggers for these flashbacks and nausea can be something as simple as the smell of aftershave, the smell of onions or hearing Elvis Presley on the radio. She also experiences insomnia and, when she does sleep, has nightmares of being chased by Mr. Murray. The plaintiff experiences bouts of depression, persistent anxiety and irritability. On her bad days, the plaintiff is unable even to look after her daughter. The plaintiff experiences poor concentration and finds everyday tasks very difficult. She finds it impossible to trust people and is overly protective of her daughter. She is always on high alert and is very wary about allowing anyone else to care for her.

32. The plaintiff commenced counselling initially paid for by Tusla, which she continued to attend until August of 2023. Although she finds it very difficult to afford, the plaintiff continues to attend counselling on a regular basis.

33. In her eloquent victim impact statement, the plaintiff outlines how the abuse has affected her. She and her siblings had been placed in Mr. Murray’s home to be loved, cared for and protected. Mr. Murray came into her life at her most innocent and vulnerable stage. The plaintiff craved love and affection and dreamed of a father figure. Mr. Murray was the first man that she trusted and the first man to say that he loved her. However, Mr. Murray manipulated her into believing that the disgusting things that he did to her were done out of love. The plaintiff’s statement addresses Mr. Murray directly and states that you used “my small body for your sexual gratification”. The plaintiff cannot trust people and fears men. She has, she said, been hurt in ways that no human should be, and her childhood and teenage years have been destroyed.

34. The plaintiff feels that she is still uncovering all the ways that the abuse has affected her. This scares her because she realises that, having blocked it out for years, she will have to allow herself to feel the trauma of the abuse before healing can begin. Psychologically and emotionally the abuse has torn the plaintiff to pieces. Mr. Murray stole her identity and left her feeling socially isolated and unsafe. The plaintiff feels that, after years of abuse, the bubbly, bright and confident little girl that she was, is a distant memory. She is left only with shame, guilt, anxiety, depression and a complete lack of self-worth, which feels like a life sentence.

35. Almost worst of all, is the fact that her relationship with her only true family, her two siblings, has been devastated by these events. The plaintiff’s greatest fear was that the family would be split up if the foster care arrangement broke down. Her primary aim was to keep the family together and protect her siblings, which she feels she utterly failed to do. Although the plaintiff still tries to be a mother figure to her siblings, she very rarely sees them and knows that they both resent her “for blowing up their lives”.

36. In addition, the plaintiff feels that her siblings’ own lives were destroyed by the fact that they lost their home. Her sister never finished school and is now a single mother living in homeless accommodation and her brother went down the road of addiction. The plaintiff feels that everything that she has dreaded and tried to prevent has come to pass and carries the crushing guilt that her actions made her siblings destitute.

Vocational and educational impact

37. After she finished secondary school, the plaintiff undertook a three-year degree in social care in Waterford Institute of Technology. The plaintiff was due to graduate in October, 2019 and would have obtained a Level 7 certificate. She had planned to then spend a further year studying in Waterford to obtain a Level 8 Honours Degree.

38. However, in the time leading up to and after reporting the rape, the plaintiff suffered from constant flashbacks which immensely impacted her concentration, making study difficult. Further, after reporting the rape, the plaintiff was effectively homeless and she therefore was unable to sit her exams which were due to take place at the end of the summer. She was therefore prevented from completing her degree and qualifying as a social care practitioner.

39. The plaintiff is clearly a resourceful and intelligent woman, who is very keen to gain security for herself and her young child. She purchased a two-bedroom apartment with the settlement from Tusla in October, 2023. At the moment, the plaintiff survives on child benefit together with her wages from two different entry-level part-time jobs, which totals about €480 a week. Out of this, the plaintiff has to pay creche fees. The plaintiff receives some child support from her former partner, but this is unreliable.

40. The plaintiff wished to be a social worker because she wanted to try and help children have a better childhood than she had herself. This remains her ambition. However, there are huge obstacles in the plaintiff’s way at the moment. Because she now has to support her daughter and creche fees, the plaintiff cannot afford to either give up or cut down on her working hours to attend college on ether a full time or part time basis. The plaintiff’s plan had been to qualify as a social worker by the autumn of 2020. She states that she currently should be in her working years, earning enough to fund an independent life for herself and her daughter. She advances a claim for loss of earnings.

Other special damages

41. The plaintiff claims special damages, including payment to her of an aftercare allowance in the amount of €300 per week, which she believes was paid to Mr. Murray on her behalf, but which he kept for himself.

42. She also seeks past accommodation costs, which she would like to pay to Ms. Mullen for accommodating her.

Evidence of Geraldine Mullen

43. The plaintiff’s neighbour, Ms. Mullen also gave evidence in support of the plaintiff.

44. Mr. Murray drank to extreme and had a terrible temper. Ms. Mullen never suspected that Mr. Murray was sexually abusing the plaintiff. However, she frequently witnessed him being physically, verbally and emotionally abusive to the plaintiff, her siblings and his wife.

45. Ms. Mullen reported several occasions in which she had to take the plaintiff and her siblings out of the Murray house for their own safety. She also confirmed the plaintiff’s account of the events of August, 2017.

46. Ms. Mullen frequently heard Mr. Murray threatening the plaintiff that if she didn’t like where she was, then she and her siblings could go back where they came from and that they would be split up.

47. Ms. Mullen was devastated when she learned of the abuse and tried to make it up to the plaintiff in the only way that she could which was to take her in when she was homeless.

48. Ms. Mullen views the plaintiff as a “mother hen” who always tries to please people and not to rock the boat. However, Ms. Mullen observes that the plaintiff frequently experiences bouts of depression, guilt and worry about breaking up the family and destroying the lives of her siblings. She often goes quiet and has a vacant expression. The plaintiff worries deeply and disproportionately about her child and hates letting her out of her sight. Although Ms. Mullen does her best to support the plaintiff, she just “locks everything away” and is very difficult to reach. In Ms. Mullen’s opinion, the plaintiff is not even close to dealing with the trauma of what has happened to her.

Evidence of Dr. Catherine Norton

49. Dr. Norton carried out a psychological and trauma assessment of the plaintiff on 24th July, 2022.

50. The plaintiff outlines a childhood and adolescence filled with dread. Regular rape was the norm for her childhood and early adolescence. During the day, she feared being alone with Mr. Murray. Every night, she would get ready for bed and wait for the door to open. The plaintiff was terrified of going to sleep, particularly, on the weekends when Mr. Murray would be drunk. Her world was perceived as a relentlessly dangerous environment, with no respite.

51. Mr. Murray adopted deliberately dehumanising behaviour towards the plaintiff at a crucial developmental stage, which had a significant negative impact on her brain development. Because of the unpredictable nature of Mr. Murray’s abuse, whereby he would come unannounced into the plaintiff’s room on many, but not all nights, she was constantly on high alert, effectively in a state of chronic stress. The lack of respite meant that the plaintiff’s brain had no time to reset and became overwhelmed. The plaintiff became hypervigilant and anxious, which has impacted and continues to impact her concentration, academic achievement and relationship building.

52. This chronic stress also impacted the plaintiff’s ability to sleep which is extremely important for brain development. Sleep is also when the brain consolidates the memories of the day, which in part explains why the plaintiff’s memories are so fractured.

53. In addition, stress activates the fight or flight response releasing the stress hormones adrenaline and cortisol. The constant flow of cortisol and adrenaline in the brain captures traumatic “flashbulb” memories which are then re-experienced vividly causing nightmares and flashbacks.

54. Chronic stress, particularly if it compromises quality sleep, has long term mental and physical health impacts. Because the plaintiff was exposed to chronic stress, she eventually lost the ability to regulate these stress hormones and now remains constantly sensitised, fearful, tense and distractible.

55. In Dr. Norton’s view the plaintiff developed a primal fear of Mr. Murray, particularly when he was in a volatile mood or consuming alcohol. Children who are exposed to such volatility in their parents/carers adapt their behaviour to avoid danger. This impacts their confidence and self-respect in later life. The plaintiff has developed a high propensity towards people pleasing and avoiding confrontation.

56. An abused child will often act in a manner which is seemingly contradictory. They will often cling to the abusive parent for fear of being rejected altogether. In this particular case this cycle was exacerbated by the plaintiff’s fear of being separated from her siblings. Mr. Murray manipulated the vulnerability of the plaintiff and her siblings. This resulted in the plaintiff forming insecure attachments and in mistrust and fear of others, particularly men. She has had no stable male role model in her life at any time.

57. In addition to subjecting the plaintiff to sexual assaults, physical, verbal and emotional abuse, Mr. Murray displayed characteristics of coercive control. For example, he would not verbalise his annoyance when denied sex but would communicate his rage through facial expressions and ignoring the plaintiff. This would cause insecurity and fear, not just in the plaintiff, but also in her siblings. The plaintiff would sense her siblings’ fear which translated into unintended emotional pressure on her to comply with Mr. Murray’s demands. A further example was Mr. Murray’s constant threats to break up the plaintiff’s family when he was displeased with the plaintiff. These subtle threats frequently made in the presence of others, consolidated the plaintiff’s sense of helplessness and reinforced her belief that her siblings would suffer if she did not comply. This controlling behaviour persisted even after the abuse had finally ceased. For example, when the plaintiff was studying in Waterford, Mr. Murray would record the mileage on her car, so he would know if she was driving to visit her boyfriend.

58. Dr. Norton administered six different psychological tests to the plaintiff. The plaintiff’s high scores on the depression scale reflected an inability to cope with daily problems, low self-confidence and feelings of inferiority. The plaintiff suffers from significant demoralisation and experiences symptoms of low mood, sadness, distress and hopelessness. She also reported significant paranoia and social introversion. The plaintiff is submissive, shy and insecure. She lacks self-confidence and is sensitive to the judgment of others. In addition, the plaintiff scored very highly on the anxiety scale and reported significantly elevated scores in respect of anger and obsessiveness. She experiences a debilitating fear of being unable to protect and provide for her daughter.

59. Dr. Norton has diagnosed the plaintiff as suffering from PTSD, which ten years after the abuse ceased, is ongoing. The plaintiff re-experiences her trauma through intense intrusive imagery, flashbacks and recurrent distressing dreams. She therefore regularly re-lives the terror and helplessness of the rapes. The plaintiff also exhibits symptoms of avoidance, for example, an inability to feel emotion (numbness). The plaintiff also experiences hyperarousal, causing anxiety, irritability and insomnia. She has diminished interest in, and capacity for, daily activities. The plaintiff suffers from diminished concentration, recollection and coping skills. In short, the plaintiff’s PTSD is having a significant impact on her daily life.

60. Dr. Norton observed that the plaintiff reported her abuse without any apparent emotive reaction. This in all likelihood mirrored her coping mechanism during the abuse itself, which was to freeze as an acute response to the trauma she was enduring. The plaintiff’s masking effect is very significant and in Dr. Norton’s opinion she suffers from disassociation as reflected in her very high defensive avoidance score. This indicates that the plaintiff is constantly attempting to suppress or eliminate painful memories or thoughts, which is exhausting and debilitating. It also means that the plaintiff cannot discuss or process negative, or trauma related experiences even in therapy, which is unfortunately a negative prognostic indicator for future recovery.

61. The plaintiff still presents as extremely traumatised. She needs assistance to process the trauma that has occurred and to grieve the loss of her childhood. It is likely that many repressed memories and negative emotions will surface as the plaintiff processes her trauma. This in itself will be traumatic. However, in Dr. Norton’s opinion, over time, as the plaintiff’s brain processes these confusing and distorted memories, she ought to have less intrusive experiences.

62. To move forward, the plaintiff requires a detailed plan of treatment. She needs initial counselling for at least two years to process the impact of what occurred. This would need to occur at least once a week for two years. After this therapy concludes, the plaintiff will require psychosexual education to understand the sexual impact of the abuse. Otherwise, she will never trust a male figure in her life. Such psychosexual education is likely to be concluded in sixteen weeks of one session per week. Only after these two stages are complete will the plaintiff be able to undertake specific trauma focused therapy or cognitive behavioural therapy. It is likely that this will be required to continue for at least three years, once per week, at the same cost per session.

63. The plaintiff unfortunately has been left without the necessary coping mechanisms to meet adversity. In the future, it is hoped that the plaintiff will learn to prevent her trauma from engulfing and overwhelming her. Dr. Norton’s opinion is that, eventually, the plaintiff will learn to live with what has occurred and will achieve a reasonably good quality of life. However, lifelong impacts will remain. There will always be triggers which will cause significant distress for the plaintiff.

64. Nothing can replace the childhood that was brutally taken from the plaintiff. Eventually Mr. Murray will be released from prison and the plaintiff must prepare herself emotionally for this in advance of that time. The plaintiff sees herself as a survivor rather than a victim and is driven to recover for the sake of her own daughter. Dr. Norton observes that the abuse inflicted by Mr. Murray has already had an appalling impact on the plaintiff’s life. It has also impacted the lives of the plaintiff’s loved ones, her siblings, which is a continuing stressor for her. It is essential to break the cycle initiated by the abuse, so that it does not impact on the plaintiff’s daughter’s life.

Legal principles in relation to general damages for child sexual abuse

65. It now falls to consider quantum. I will commence my discussion by considering MN v. SM [2005] 4 IR 461, which is the preeminent authority guiding the court in respect of damages for child sexual abuse.

MN v. SM

66. In MN the defendant appealed a jury award of €600,000 for the prolonged sexual abuse of a teenager. The plaintiff had been abused by the defendant, a family friend, between the ages of 12 and 17 years. The abuse escalated from inappropriate fondling to masturbation and digital penetration of the plaintiff’s vagina, ultimately culminating in full penetrative sex. The plaintiff did not report this abuse as she did not want to break up the two families and was afraid that she would not be believed. As a result of the abuse, the plaintiff had difficulties coping in college and experienced panic attacks, anxiety, sleep disorder, nightmares, depression, hopelessness, loss of energy and loss of motivation. By the time of the trial, the plaintiff continued to suffer from many of these symptoms but had lately engaged with therapy and antidepressants.

67. Denham J. (as she then was) noted that this was the first award by a civil jury in such a case and that there were no precedents to guide the court. As the case involved very serious injuries it was relevant to consider “the range of damages open to a court”. In considering this, Denham J. referred to Sinnott v. Quinnsworth [1984] ILRM 523 (“Sinnott”), a case of catastrophic injury. In Sinnott, O’Higgins C.J. held that there should be a limit to the award of general damages (“ the upper limit”). The upper limit should be sought having regard to the facts of each case and the social conditions in our society. In setting this upper limit, the objective must be to determine a figure which is fair and reasonable, having regard to ordinary living standards in the country, the general level of income and the things upon which the plaintiff might reasonably be expected to spend money.

68. Denham J. adopted these general principles with one caveat. She observed that where a plaintiff has sustained catastrophic injuries there will be a significant award of special damages. This, Denham J. held, may result in a reduction in the level of general damages awarded. This caveat did not however arise in MN as no appreciable special damages were claimed. It equally does not arise in this case because this caveat has not since found favour with the appellate courts. It is now accepted that there is no logic in reducing general damages merely on account of a large award of special damages. This is because, as O’Higgins C.J. stated in Sinnott, general damages is a sum over and above “every single penny of monetary loss or expense”.

69. Denham J. noted that the upper limit had increased over the years and was satisfied that, at the time of her judgment in 2005, the equivalent figure to £150,000 was “in excess of €300,000”.1 This, she stated, assisted in assessing general damages in the case before her.

70. Noting that no previous cases determining awards of general damages in cases of sexual abuse had been brought to the court’s attention, Denham J. found it useful to consider other schemes where sums were awarded for similar injuries such as the Residential Institutions Redress Act 2002 (Assessment of Redress) Regulations, although such schemes did not provide a precedent for the court, or in any way affect its jurisdiction. The Redress Scheme (“the Scheme”) assessed the award under four headings, (i) redress in respect of the severity of the abuse and injury; (ii) additional redress on the principle of aggravated damages; (iii) medical expenses and (iv) other costs and expenses. The maximum award under the Scheme would be €300,000. However, where the abuse suffered is considered to be so serious as to constitute an exceptional case, which could not reasonably be provided for within the redress bands, the Redress Board could deviate from the Scheme for stated reasons.

71. In a crucial passage, Denham J. stated that there were a number of important factors to be considered in analysing injuries inflicted by child sexual abuse:

While stating that the equivalent figure to the Sinnott limit was “in excess of €300,000”, Denham J. did not specify how far in excess same was. “The nature of the injury to the plaintiff is complex and may be permanent. There are a number of important factors to be considered in analysing this injury. First, in this case the injury did not occur on a single occasion. It was not one sexual assault or one rape. Rather it was a continuum of abuse over years. This has an effect more than the individual assaults

– it created a continuum. The consequence to the plaintiff was greater than the sum of the individual assaults. Secondly, the assaults and rape took place at a critical time in the life of the plaintiff; she was an adolescent. The consequence has been that her development was altered and subverted. Thirdly, the consequences to the plaintiff may be lifelong... Fourthly, while the injuries to the plaintiff arise out of a continuum of sexual assault over five years at a vulnerable time in her life, this sexual assault ultimately developed into rape of the plaintiff. Rape is the most serious injury to a person.”

72. Denham J. quoted Finlay C.J.’s observation in People (DPP) v. Tiernan [1980] IR 250 at p.253 to the effect that the act of rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim, which can often be of long term and, sometimes, lifelong duration. Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such, it must attract very severe legal sanctions.

73. Denham J. stated that no award of money could put the plaintiff back in the position she was in before the sexual abuse. General damages are an imperfect mode of compensating the plaintiff but were the only method available. Denham J. noted that in assessing the level of general damages there are a number of relevant elements to consider: “Thus an award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined.”

74. Denham J. noted that the case was the first in a new and developing jurisprudence. In the way of the common law, a corpus of cases would develop to assist a court in decision making. Denham J. was satisfied that there should be a rational relationship with awards of damages in personal injury cases and stated that “the level and limitations of awards of general damages in personal injuries actions [were] informative”.

75. Denham J. observed that over the last decade there had been many cases of sexual assault and rape of children. There was judicial knowledge of this dark side of Irish society. Within that context, the MN case was very severe and serious but was not the “worst case scenario”. As such, “ it would not be a case in which to award the maximum sum of general damages”. Ultimately, the Supreme Court awarded the plaintiff compensation of €350,000 general damages.

Awards for psychiatric damage under the Guidelines

76. In MN, Denham J. considered the Book of Quantum, to which the court was then required to have regard pursuant to section 22 (1) of the Civil Liability and Courts Act 2004, as potentially relevant. However, she noted that while the Book of Quantum was informative, its usefulness was limited by the fact that it did not consider damages for either purely psychological injury or sexual abuse.

77. Applying that logic to the present time directs one not to the Book of Quantum, but to the Personal Injuries Guidelines (“the Guidelines”), which from a temporal perspective would apply to the present case. Like the Book of Quantum, the Guidelines do not deal expressly with damages for child sexual abuse. However, unlike the Book of Quantum, they do set out recommended awards for psychiatric damage.

78. The “considerations” affecting the level of such awards for psychiatric damage are similar to those applying to all other injuries specified in the Guidelines and include:

1. Age;

2. Interference with quality of life and education;

3. Impact on work;

4. Impact on interpersonal relationships;

5. Whether medical assistance has been sought;

6. Nature, extent and duration of treatment undertaken and/or medication prescribed;

7. Likely success of treatment;

8. Prognosis to include any future vulnerability;

9. The extent and/or nature of any associated physical injuries.

79. The Guidelines divide psychiatric damage into two categories: psychiatric damage generally and PTSD. Each of these is then sub-divided into sub-categories, ranging from minor to severe psychiatric damage and PTSD. Severe psychiatric damage, in which the injured person will have marked problems in respect of interference with quality of life and impact on work and where the prognosis will be very poor, attracts damages of €80,000 to €170,000. Cases of serious psychiatric damage, where there will be significant problems with quality of life, education and impact on work but where the prognosis would be more optimistic, attract damages of €40,000 to €80,000. Moderate psychiatric damage attracts damages of €15,000 to €40,000 and for mild psychiatric damage the range is €500 to €15,000. The categories of PTSD also range from minor to severe PTSD. Severe PTSD cases which prevent the injured party from working at all or from functioning at anything approaching pre-trauma level and in which all aspects of life would be badly affected attract damages of €60,000 to €120,000. Cases of serious PTSD in which the prognosis is for some recovery with professional help but where the effects are still likely to cause significant disability for the foreseeable future attract damages of €35,000 to €80,000. Moderate PTSD attracts damages of €10,000 to €35,000 and for minor PTSD the equivalent range is €500 to €10,000.

Different assessment methodologies as between MN and the Guidelines

80. The quantum of general damages set out in the Guidelines for psychiatric damage, even if categorised at severe, is considerably less than the amounts awarded in MN and in other cases of severe child sexual abuse (as to which, see paras. 144 to 157 below).

81. This differential may be partly attributable to the fact that the psychiatric condition with which the plaintiff has been diagnosed in this case is but one component of the wider injury inflicted upon her. As such, the figures set out in the Guidelines for psychiatric damage cannot represent the appropriate compensation band for a case such as this. The difficulty, however, is that there are no other categories of injury in the Guidelines which reflect or encompass the additional components of the plaintiff’s injury, such as the nature and severity of the abuse itself (as to which see para 129 below).

82. Furthermore, the “considerations” and other enumerated injury components set out in the Guidelines which together dictate, inter alia, whether a psychiatric injury (or indeed any other injury) is categorised as severe, serious, moderate or mild, do not fully reflect Denham J.’s analysis of the true injury inflicted in cases of child sexual abuse.

83. To expand somewhat on this point, one observes that the decision in MN went further than enjoining a court assessing general damages to balance and weigh “the three elements, fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a court”. It recognised that whilst the principal factor to be considered in such cases is the nature and duration of the psychological injury suffered by the plaintiff, this in turn is closely aligned with the nature and severity (ranging from acts of sexual assault through to rape), timing (in the sense of the developmental age of the plaintiff) and duration of the sexual abuse suffered. Thus in the passage set out at para. 71 above, Denham J. considers factors of particular relevance in child abuse cases. Denham J. thus emphasised that a continuum of abuse over years will have consequences greater than the sum of the individual assaults. She stressed that sexual abuse at a critical time in a child’s life can alter and subvert development. These two factors link the injury suffered to the nature, timing and duration of the abuse itself. Similarly, Denham J.’s observation that sexual assault which develops into rape is the most serious injury to a person, does not focus principally upon the plaintiff’s psychiatric injuries, but on the nature of the abuse itself.

84. These factors, such as repeated abuse as part of a continuum and the nature and severity of the acts of abuse themselves (in the sense of the developmental age of the plaintiff) may have devastating consequences for the plaintiffs in such cases. Yet, these factors are not reflected in the Guidelines. Although the Guidelines reference clearly relevant considerations such as age; interference with quality of life and education; impact on work and the nature, extent and likely success of the treatment undertaken, they do not dovetail with or encompass this aspect of the analysis in MN.

85. In short, the MN analysis and the approach under the Guidelines differ. The MN approach places considerably greater weight than the Guidelines on the nature, severity, timing and duration of the abuse itself. These two assessment methodologies are not on all fours and the question which arises is which methodology applies in this case, and in cases of child sexual abuse more generally.

Do the Guidelines apply to cases of child sexual abuse?

Legal submissions sought on the applicability of the Guidelines to cases of child sexual abuse

86. It is necessary to determine whether or not the Guidelines apply to cases of child sexual abuse more generally, or to the present case in particular; and what consequences would flow should it be held that the Guidelines either did or did not so apply.

87. Evidently, the legal issue raised transcends the facts of this case and is of general public importance. As the proceedings had been struck out against Tusla and as Mr. Murray clearly intended to play no part therein, I invited the Attorney General to participate as legitimus contradictor on this issue. Submissions of the plaintiff and the Attorney General on the applicability of the Guidelines to cases of child sexual abuse

88. In their original written submissions, both the plaintiff and the Attorney General appeared to contend that the Guidelines did apply to the present case. However, these submissions overlooked a key issue of statutory interpretation, namely whether the obligation imposed on the courts by the amendments brought about in the Judicial Council Act 2019 to have regard to the Guidelines and to state reasons for departure therefrom, applied to claims based on sexual assault.

89. The parties therefore filed further legal submissions to address this point. It is now the common position of both the plaintiff and the Attorney General that the Guidelines do not apply to actions such as this, in which damages are claimed for “rape, sexual assault, assault, battery, false imprisonment, trespass to the person, breach of duty, personal injury, loss, damage, inconvenience and expense”.

Discussion and conclusion that the Guidelines do not apply to cases of child sexual abuse

90. For reasons I will now explain, I have concluded that the parties are correct in their submission that the Guidelines do not apply to cases of child sexual abuse.

91. To explain why this is so, it is necessary to cross reference several different pieces of legislation including: (1)The Civil Liability Act 1961 (“the 1961 Act”). (2)The Personal Injuries Assessment Board Act 2003 (“the PIAB Act 2003”). (3)The Civil Liability and Courts Act 2004 (“the 2004 Act”).

(4)The Judicial Council Act 2019

The 1961 Act

92. The starting point is the definitions set out in the 1961 Act which determine its scope. Section

2 provides the following definitions; “personal injury” includes any disease and any impairment of a person’s physical or mental condition, and “injured” shall be construed accordingly;… “wrong” means a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional”

93. These definitions would cover the plaintiff’s cause of action in these proceedings.

The PIAB Act 2003

94. The PIAB Act 2003 creates a statutory bar to the bringing of a “relevant claim” seeking damages for personal injury without prior authorisation (“authorisation”) from the Personal Injuries Assessment Board2 and also deals with the manner in which such claims will be assessed by PIAB. The PIAB Act 2003 provides that “personal injuries” and “wrong” are to be construed in accordance with the definitions as provided in the 1961 Act. As these definitions would cover the plaintiff’s cause of action in these proceedings, she duly obtained an authorisation from PIAB.

95. Section 3 of the PIAB Act 2003 provides that the Act applies to specific kinds of “civil actions” and then makes a general inclusion of other civil actions (excluding medical negligence actions). Section 4 then defines a “civil action” as follows: “civil action” means an action intended to be pursued for the purpose of recovering damages, in respect of a wrong, for-

(a) personal injuries, or

(b) both such injuries and damage to property (but only if both have been caused by the same wrong), but does not include –

(i) an action intended to be pursued in which, in addition to damages for the foregoing matters, it is bona fide intended, and not for the purpose of circumventing the operation of section 3, to claim damages or other relief in respect of any other cause of action,

(iii) an action intended to be pursued in respect of an alleged breach by the State or any other person of a provision of the Constitution,

(iv) an action intended to be pursued under section 3 of the European Convention on Human Rights Act 2003…”

Despite the recent name change to the Injuries Resolution Board, I will continue to refer to this body as “PIAB”.

96. The 2003 Act thus expressly excludes certain narrowly defined claims (such as medical negligence proceedings) which would otherwise fall within its remit. Aside from the matters expressly excluded, the scope of the 2003 Act is not delineated by the nature of the wrong committed or the specific cause of action giving rise to the injuries for which compensation is claimed.

The 2004 Act

97. The 2004 Act makes significant changes to the procedures and rules of court that apply to personal injuries claims covered by its definition section.

98. In contrast to the PIAB Act 2003, the scope of the 2004 Act is delineated by reference to the cause of action upon which the claim for damages is based. Thus, although “personal injury” and “wrong” both have the same meaning as in the 1961 Act, the definition of a “personal injuries action” is materially different. Section 2 of the 2004 Act defines a personal injuries action as follows: “personal injuries action” means an action for the recovery of damages, in respect of a wrong–

(a) for personal injuries,

(b) for both such injuries and damage to property (but only if both have been caused by the same wrong), […] but shall not include an action where the damages claimed include damages for false imprisonment or trespass to the person…(emphasis added)

99. Therefore the definition of “civil wrong” in the PIAB Act 2003 differs from the definition of “personal injuries action” in the 2004 Act. In contrast to the PIAB Act 2003, the 2004 Act specifically excludes from its scope actions such as the present, which seek damages for, inter alia, trespass to the person and false imprisonment. By contrast, certain personal injury claims expressly excluded from the scope of the PIAB Act 2003, such as medical negligence claims, are not excluded from the procedural requirements imposed by the provisions of the 2004 Act.

100. Although the case principally concerned the requirement to obtain authorisation from PIAB before initiating litigation under the PIAB Act 2003, the relationship between the 2003 and the 2004 Acts was nonetheless considered in Clarke v. O’Gorman [2014] 3 IR 340. The plaintiff had initiated proceedings without obtaining authorisation in which she alleged serious sexual abuse by a family member. Just before the case came on for hearing before a jury, the defendant applied to have the action struck out on the basis that it was a “civil action” within the meaning of section 3 of the PIAB Act 2003, which deprived the court of jurisdiction to hear the case in the absence of an authorisation.

101. O’Donnell J. (as he then was) noted that although causes of actions for assault or trespass to the person were actionable per se, which distinguished them from other personal injuries proceedings, the vast bulk of such actions can also be properly described as actions for personal injuries. As such, the requirements of the PIAB Act 2003 applied. Critically, O’Donnell J. went on to consider the interaction between the PIAB Act 2003 and the 2004 Act, stating: - “Ideally the scope of the 2003 Act and the 2004 Act should be identical. But the 2004 Act is not expressed to be in pari materia with the 2003 Act nor is there any obligation to read them together. It is not inherently impossible, even if it is untidy, that a claim can fall under the 2003 Act and require authorisation, but not be required to use the procedures in the 2004 Act. In any event, it seems to me that the interpretation of the two statutes taken together lead to the

conclusion that actions for assault are within the 2003 Act and not within the 2004 Act. This is because the definition of “civil action” in the 2003 Act and “personal injuries action” in the 2004 Act use identical introductory language in providing that each action means an action for the recovery of damages “in respect of a wrong, for – (a) personal injuries, or (b) both such injuries and damage to property (but only if both have been caused by the same wrong)” However they depart from each other in the exceptions to the definition. In particular the fact that “an action where the damages claimed include damages for false imprisonment for trespass to the person” (s.2(1) of the 2004 Act) is expressly excluded from the definition of “personal injuries action” under the 2004 Act, is itself a guide which suggests that such actions are not excluded from the definition of “civil action” under the 2003 Act. ….” (emphasis added)

102. On the basis of the above analysis, I am satisfied that civil claims for child sexual abuse, such as the proceedings in Clarke v. O’Gorman and the present proceedings, whilst falling within the PIAB Act 2003, are not personal injuries actions for the purposes of the 2004 Act.

103. As civil claims for child sexual abuse are excluded from the 2004 Act, none of its provisions apply to such cases. Most pertinently, as we shall see, section 22 of the 2004 Act, as amended by the Judicial Council Act 2019, does not apply.

The Judicial Council Act 2019

104. Section 99 of the Judicial Council Act 2019 amended section 22 of the 2004 Act, which now provides that “the court shall, in assessing damages in a personal injuries action…(a) have regard to the personal injuries guidelines (within the meaning of that act)… in force, and (b) where it departs from those guidelines, state the reasons for such departure in giving its decision.”

105. This aspect of the 2019 Act, was given effect by the Oireachtas by amending the 2004 Act to apply the Guidelines to any “personal injuries action” within the meaning of that Act. As noted above, the 2004 Act provides a specific interpretation of “personal injuries action” which excludes actions claiming damages for false imprisonment or trespass to the person. In short, the Guidelines do not apply to civil claims for child sexual abuse such as the instant case.3 Therefore, the assessment methodology set out in MN continues to apply to the assessment of damages in such cases, including the present case.

106. Precisely why the legislature elected to exclude actions for false imprisonment and trespass to the person from the requirement to have regard to the Guidelines is, as the plaintiff points out, a matter for speculation. There is force in the submission of both parties that this may be because the plaintiffs in such actions can, and often will, elect for a trial before a judge and jury. It is quite possible that the legislature was conscious of the concerns (often expressed by judges) that “Books of Quantum”, the Redress Board and the Guidelines themselves (authored by judges to guide judges) may confuse, rather than assist, a jury in assessing damages.

107. I agree that a further rationale for this distinction may arise from the fact that such actions generally involve deliberate acts and/or intentional torts and wrongdoing. Child sexual abuse, in particular, involves the most serious violation of bodily integrity having profound consequences for the injured party. The legislature may view such actions as fundamentally different in kind from what might loosely be described as non-intentional torts. This logic is reinforced by section 17 of the PIAB Act 2003, which permits PIAB to refuse to provide an assessment in certain circumstances including where “the relevant claim arises out of a trespass to the person, because the making of an assessment of the claim by the means to which assessors are limited to employing by this act would not respect the dignity of the claimant”.

108. It is therefore no surprise that the Guidelines do not purport to assess damages for child sexual abuse and that they do not reference the various aspects of injury which the jurisprudence On this analysis the Guidelines will also not apply to a range of actions based on trespass to the person and/or false imprisonment, the scope of which it is not necessary to consider here. on deliberate torts, assaults, battery and rape take into account; such as the impact of a continuum of abuse, the specific acts of abuse and the likely lifelong impact of such events occurring in a child’s formative years. Further, although the Guidelines reference interference with quality of life and education, as well as impact on work and personal relationships as considerations affecting the compensation to be awarded, they do not purport to encompass the devastating impact that sexual abuse and the consequences of its reporting can bring about. This case has involved the loss of home life and family, and the supportive networks and security upon which all human relations are based. For good reason, the Guidelines do not attempt to provide guidance on such complex impacts and ramifications.

General damages: the submissions of plaintiff and the Attorney General

109. Both parties submit that, notwithstanding that the Guidelines do not apply to this case, the court might nonetheless in its discretion consider them as part of its overall assessment of the appropriate level of general damages. This limited enduring role to be played by the Guidelines should be clearly distinguished from cases where there is a statutory obligation to “have regard” to the Guidelines and to provide reasons for departing from them.

110. The plaintiff submits that the level of the damages awarded in MN demonstrates that cases of serious child sexual abuse attract damages at, or very close to, the prevailing upper limit. She argues that the primary relevance of the Guidelines is in updating the currently prevailing upper limit on general damages to €550,000; and that this is the appropriate award of general damages.

111. By contrast, the Attorney General argues that the enduring relevance of the Guidelines to cases of child sexual abuse is in their reinforcement of the principles to be applied in the assessment of general damages, specifically, the requirement for fairness and reasonableness and the requirement that awards are proportionate to the injury sustained, to awards commonly made for injuries of greater and lesser magnitude and for injuries of the most devastating and catastrophic kind in which the court will award general damages up to the upper limit of €550,000. The Attorney General submits that the Guidelines provide a useful scale as between the minimum and maximum awards which may be granted in general damages.

112. However, the Attorney General also argues that it is not possible or even desirable to attempt to draw an equivalence between the injuries suffered in cases of child sexual abuse and the injuries detailed in the Guidelines because they arise in a different context. Therefore, rather than trying to compare the plaintiff’s injuries with incommensurable catastrophic physical injuries, the court should consider her injuries along the scale of injuries of the specific type in issue (i.e. injuries inflicted by the sexual abuse of a child).

113. At risk of oversimplification, one could summarise the parties’ respective submissions as follows: the plaintiff contends for damages at the level of the upper limit on general damages as per the Guidelines. The Attorney General suggests the assessment of injuries along the scale of other awards for child sexual abuse in which general damages range between €150,000 and €350,000. For reasons I will now explain, neither approach commends itself to me.

Recourse to the Guidelines as a reminder of the pre-existing common law principles and in updating the upper limit on general damages

114. Although salutary, the reminder of the general principles of fairness and proportionality set out in the Guidelines (as summarized at para 111 above) is just that, a reminder. These principles predate and exist independently of the Guidelines. Indeed, in setting them out, the Guidelines expressly refer to the prior common law, specifically MN and Morrissey v. HSE [2020] IESC 6 (“Morrissey”).

115. Likewise, the reminder in the Guidelines that awards for less serious injuries should be proportionate to the upper limit also invokes pre-existing jurisprudence. Thus, the Guidelines refer to the observations of Clarke C.J. in Morrissey on the purpose or function of the upper limit on general damages. Clarke C.J. held that the proper approach to the upper limit is one which sees the limit as the appropriate sum for the most serious injuries and the sum by reference to which all less serious injuries should be determined, having regard to a comparison between the injuries suffered and those which properly qualify for the upper limit.

116. The Guidelines also reinforce the importance of consistency in awards of general damages for personal injuries. Once again, this dovetails with the common law; for example, Denham J.’s observation in MN that a corpus of law will develop in relation to the assessment of damages for child sexual abuse, of which her judgment will form part.

117. These principles were always of singular importance, quite irrespective of the Guidelines.

118. Of course, the plaintiff is correct to observe that the Guidelines increase the previously applying upper limit on general damages from that awarded by the High Court in Morrissey (€500,000) to €550,000.4 Once again, however, this is simply to apply the established approach of the Superior Courts in periodically updating the upper limit in accordance with prevailing economic circumstances. It is common case as between the plaintiff and the Attorney General that this court can take judicial notice of the fact that the Guidelines now fix the upper limit on general damages at €550,000. Even though the Guidelines do not apply to this case, €550,000 is now “the current view of the appellate courts as to the damages which should be awarded in cases of the most serious injuries.” (per Clarke C.J. in Morrissey).

Can serious cases of child sexual abuse attract general damages approaching or at the upper limit?

119. It is now relevant to consider whether, as the plaintiff submits, cases of child sexual abuse should attract general damages at or approaching the upper limit.

120. In Morrissey, the Supreme Court considered the defendant’s argument that the plaintiff’s injuries in that case could not be equated with injuries such as catastrophic brain injury and therefore did not attract damages at the upper limit. In response, Clarke C.J. acknowledged that it may be somewhat invidious to attempt to compare one type of very serious injury with another. There are different ways in which one can properly characterise injuries as being at or near the top of the compensation range so far as pain and suffering are concerned. Clarke C.J. had no doubt that the case before him, in which the plaintiff’s life had been cut short by the defendant’s negligence, was one such case.

121. The key point here, as Clarke C.J. stated, is that the type of injuries which do properly qualify for the upper limit may fall into different categories. It may be possible to regard injuries of very different types as being broadly comparable even though they may be different in character from other types of injuries which can also be properly characterised as being of the most serious type.

122. Reading these passages from Morrissey together with the judgment in MN, I conclude that there may be cases in which an injury consisting of repeated rape over the course of a child’s formative years, resulting in psychiatric injury and other devastating lifelong consequences may properly be characterised as being at or near the top of the compensation range so far as pain and suffering are concerned. Indeed, Denham J. acknowledged as much in MN, expressly stating that In the Supreme Court, Clarke C.J. in 2020 declined to interfere with this aspect of the High Court judgment(although the matter was not argued before him). the case before her, whilst severe, was not the worst-case scenario in the spectrum of cases concerning sexual assault and rape of children and therefore did not attract the maximum sum (or upper limit) of general damages. This implies that, if MN had involved sexual abuse of the worstcase scenario, an award approaching or at the upper limit would have been considered appropriate.

123. Furthermore, the award actually made in MN must be seen in the context of Denham J.’s earlier finding that the prevailing upper limit on general damages was “in excess of €300,000”. Whilst Denham J. does not state how far in excess of €300,000 the upper limit was, it is reasonable to infer that the award of €350,000 was not substantially below same.5 It must also be seen in the context of her observation that the Book of Quantum provided that the most serious injuries, such as quadriplegia and paraplegia, commanded damages of up to €300,000.

124. To confine victims of child sexual abuse to a notional scale which plateaus at €350,000 because this was the figure awarded in MN, would be to perpetuate an injustice on such plaintiffs and would not be in accordance with the common good. Such an approach would be all the more unjustifiable in circumstances where having expressly considered the upper limit on general damages, the Supreme Court awarded general damages at a level which, on any analysis, approached the upper limit then prevailing.

125. Therefore, insofar as the Attorney General suggests that the high point of the scale of damages in child sexual abuse cases is the amount awarded in MN, I disagree.

126. Equally, however, insofar as the plaintiff may be understood to submit that, by reason of the relationship between the prevailing upper limit and the level of award in MN, severe cases of sexual assault and rape of children will almost by definition attract damages at the upper limit, I cannot agree. To take this approach would perpetuate an injustice on defendants in such cases, which would also not be in accordance with the common good. No such fetter applies to the court’s discretion.

127. Although the long-term consequences of child sexual abuse and rape are undoubtedly devastating, the direct impact of such abuse cannot usually be compared to the direct impact of a catastrophic brain injury which permanently deprives its victim of their independence, their enjoyment of life and their ability to engage in society. Similarly, a direct comparison to the suffering In this regard, Denham J. had also cited with apparent approval two relatively recent High Court cases, Keeley v. Minister for Health [1992] 2 IR 456 and McEneaney v. Monaghan County Council [2001] IEHC 114 which had assessed the limit for general damages at £250,000 and £300,000 respectively. of a person such as Ruth Morrissey (whose life was foreshortened, who had to live with the knowledge that she would die before her children were grown and who had to endure a slow and painful death) is also unlikely to commend itself.

128. On the other hand, as is clear from Denham J.’s judgment in MN, the nature of the injury to a plaintiff inflicted by child sexual abuse is complex. As I explain above, regard must be had to the nature, severity, timing and duration of the abuse itself. There are more ways than one to ruin a person’s life. It goes without saying that a person’s life can be devastated by a physical injury. However, a person’s life can also be devastated by a continuum of sexual abuse which fills their childhood with pain and fear and robs them of their right to bodily integrity, their confidence and their trust in humanity.

129. In cases of child sexual abuse, the court must carefully analyse and apply each of the criteria outlined by Denham J. in MN on a case-by-case basis. It must also consider, balance, and weigh the requirements of fairness to the plaintiff, fairness to the defendant, proportionality to the general scheme of damages awarded by a court, proportionality to damages awarded in other cases of child sexual abuse of greater and lesser severity and proportionality to the currently prevailing upper limit on general damages. In some of these cases, damages well below the upper limit will be appropriate. In other cases, the consequences of the abuse, its nature, severity, timing and duration may be such that, particularly when aggravated or exemplary damages apply, damages approaching, or at, the upper limit will not only be appropriate but will, in justice, be imperatively necessary.

The currently prevailing upper limit

130. In assessing general damages in MN, the Supreme Court considered inter alia, “the range of damages open to a court” and the upper limit on general damages to be of relevance to the assessment of damages. Further, in so doing the Supreme Court was satisfied that the prevailing equivalent figure to £150,000 awarded in Sinnott was “in excess of €300,000”. It is therefore relevant to briefly recall developments subsequent to MN in relation to the assessment of the upper limit.

131. In 2009, four years after MN, Quirke J. decided that the prevailing equivalent of the Sinnott upper limit was €500,000. He then adjusted this figure downwards to €450,000 to reflect the reduction in wealth and living standards which had commenced in 2008 due to the economic recession (Yang v. MIBI [2009] IEHC 318). As referenced above, in Morrissey, which was decided in 2020, the Supreme Court held that it was not unreasonable to place the prevailing equivalent of the upper limit at €500,000. Subsequently, the Guidelines, which were promulgated on 24th April 2021, fix the upper limit for general damages at €550,000. Evidently, therefore, the upper limit on general damages has increased very substantially in the time since MN.

132. Where, as in the case of the assessment of damages for child sexual abuse in MN, the Supreme Court has expressly calibrated the award by reference to the prevailing upper limit, a subsequent increase to the upper limit is pertinent to that calibration. As a matter of principle, it is therefore not correct to state that the “scale” of general damages for child sexual abuse is capped by the award in MN and maxes out at €350,000. There is no logical or public policy reason to confine damages awards to victims of child sexual abuse to an award assessed by reference, inter alia, to the upper limit for general damages prevailing over 20 years ago. Insofar as the upper limit was relevant as a valid point of comparator in 2005, it remains relevant now. Moreover, the simple truth is that the sum now applying for comparative purposes is nearly 50% above that contemplated by the Supreme Court in 2005.

133. This does not imply that by reason of the increase in the upper limit by 50% since MN, a court assessing damages should mechanically add 50% to the damages awarded in MN.6 However, I do accept that, to the extent that the upper limit on general damages is a relevant point of comparison in such cases, it now stands at €550,000.

Application of the above legal principles to the present case

Consideration of the specific factors outlined in MN

134. This case involved a continuum of abuse and oppression of the plaintiff involving manipulation, psychological domination and repeated acts of sexual assault. This created an effect more than each individual assault (factor 1 of MN). Critically, as in MN the sexual assaults involved acts of rape, which Denham J. stated is in itself a most serious injury to a person. Rape is a gross attack on human dignity and bodily integrity for which a plaintiff is entitled to be compensated as an act of trespass without proof of any other damage. In the present case, it is estimated that the plaintiff was subjected to up to five rapes per week for over seven years. This is many hundred Such argument also runs aground by reason of the fact that I do not, in any event, accept the proposition that severe cases of sexual assault and rape of children by definition attract damages at the prevailing upper limit. separate incidents of rape. For years, the plaintiff’s dignity and autonomy were taken from her causing her to suffer humiliation, frustration, helplessness, loneliness and despair. General damages must compensate the plaintiff not only for the long-term consequences of the abuse but also for the immediate physical agony, psychological trauma and humiliation of each rape (factor 4 of MN). In my view, the nature and severity of the abuse suffered in this case can genuinely be characterised as the “worst case scenario”.

135. As regards the impact on the plaintiff, the rapes continued throughout her entire childhood and adolescence. This was a critical time in her life and the expert evidence is that her experience has altered her development and scarred her emotionally and developmentally (factor 2 of MN). The abuse has had long term consequences in that the plaintiff suffers from PTSD ten years after it ceased. Moreover, the plaintiff has not even commenced her journey to recovery. Whilst it is to be hoped that the plaintiff will recover in time with intensive therapy, this will in itself be traumatic and, even after intense therapy, lifelong consequences will remain (factor 3 of MN).

Consideration of fairness to the plaintiff and to the defendant

136. Fairness to the plaintiff requires that general damages reflect that Mr. Murray subjected her to an unimaginable nightmare which enveloped her entire childhood. The plaintiff is unlikely to ever fully escape the consequences of this dreadful, traumatic period of her life. The scope and scale of abuse in this case extends far beyond the vast majority of cases which come before the court.

137. Aggravated and exemplary damages will often be to the fore of a judge’s mind in civil claims for the sexual, physical and psychological abuse of minors. Such egregious actions against minors, where the wrongdoer is in a position of trust, are entirely the type of actions in which such aggravated damages will often be appropriate.

138. However, in the present case no claim to either aggravated or exemplary damages is advanced in the pleadings. Rather, a claim to aggravated and exemplary damages is advanced in the plaintiff’s written submissions, which were served on Mr. Murray.

139. In Conway v. Irish National Teachers Organisation [1991] 2 IR 305 (“Conway”), Finlay C.J. observed that there is no rule providing for the necessity to make a specific claim for exemplary or punitive damages. The same is the case in relation to aggravated damages, particularly in a case, such as the present, to which the enhanced pleading requirements of the 2004 Act do not apply.

140. On the other hand, Finlay C.J. also observed that the general purpose of pleadings is to give fair notice to the defendant of the issues which are to be tried and the allegations which are to be made against him. This, he stated, makes it desirable that any claim for damages over and above ordinary compensatory damages should be notified and the facts upon which reliance might be placed in support thereof, should be indicated to the defendant.

141. In Conway, notwithstanding the absence of such pleading, the court held that it was clear during the course of the hearing of the action before the High Court that a substantial claim to exemplary damages was being advanced. The matter was thereafter very fully argued before the High Court. Finlay C.J. was therefore prepared to make an award of exemplary damages.

142. I view the present case as distinguishable. At the time that Coffey J. granted judgment in default of appearance, no claim to aggravated or exemplary damages had been advanced and, although served with the proceedings, Mr. Murray had played no part therein. As such, and in contrast to Conway, the issues of aggravated and exemplary damages has not been fully argued before me. I am therefore of the view that it would not be appropriate to award such damages. Indeed, I note that, perhaps for this reason, same were not vigorously pursued.

143. Fairness to the defendant therefore requires that only compensatory damages are awarded and that no additional figure can be awarded specifically for aggravated and exemplary damages. It is also, of course, required observance of the requirements of proportionality to which I now turn.

Consideration of proportionality to damages awarded in other cases of child sexual abuse, to the scheme of general damages and to the currently prevailing upper limit on general damages

144. Although a somewhat invidious task, the principle of proportionality requires a reasonable, granular comparison of the nature, severity, timing and duration of the abuse and the consequent injuries arising in this case, with the underlying facts and the level of awards made by the superior courts in other child sexual abuse cases. Much of the jurisprudence in this area is summarized with admirable clarity by Gearty J. in Donoghue v. Connolly [2022] IEHC 386 and by Simons J. AB v. HSE [2022] IEHC 376.

145. The most obvious place to start is by noting that, compared with the present case, the facts of MN are less serious and severe. In MN, the acts of rape do not appear to have occurred until the plaintiff was 16 or 17 years of age. The acts of abuse were not perpetrated by people who were in loco parentis to the plaintiff and with whom she lived. By contrast, the plaintiff in this case had no respite; she was constantly in fear of, and regularly subjected to, rape in her own bedroom which should have been a place of safety for her. In light of Mr. Murray’s dominion over her, the plaintiff was forced to endure this abuse to protect herself and her siblings. When she eventually exposed her tormentor, the plaintiff was made homeless, separated from her siblings and estranged from them. Moreover, it appears that in MN, the plaintiff had been able to engage in treatment to which her depression had responded, albeit that lifelong difficulties in emotional and physical intimacy could not be ruled out. In the present case, the psychiatric evidence is that to date the plaintiff has been unable to derive any benefit from therapy and that she is at the very beginning of a long journey of uncertain destination. Finally, in MN, the award of damages was influenced by the fact that the defendant had admitted the abuse when first confronted with it and when first interviewed by the Gardaí. He pleaded guilty in the criminal proceedings and had instructed his counsel to apologise to the plaintiff during the course of the criminal trial and to repeat the previous apology during the course of the civil trial. Denham J. noted that a comparison can be drawn between the case before her and a situation in which this did not occur, where the conduct of a defendant may exacerbate the injuries already inflicted on the plaintiff. This is such a case. Mr. Murray’s first reaction to learning that the rape had been reported was to burn all of the contents of the plaintiff’s bedroom. Mr. Murray did not plead guilty until December 2021, some two and a half years after the plaintiff reported the abuse. He took no part in these civil proceedings and tendered no apology to the plaintiff before this court.

146. In Hickey v. McGowan [2017] 2 IR 196, the plaintiff had been the victim of sexual abuse perpetrated by a religious brother who taught him as a child at a National School. The sexual abuse involved the perpetrator rubbing the child’s legs, fondling his anus and genitalia inside and outside his clothing and occasional digital penetration of the child’s anus. The Supreme Court, per O’Donnell

J. reduced the award assessed by the trial judge from €350,000 to €150,000. O’Donnell J. noted that the assessment of damages for personal injuries is not a precise science and becomes particularly difficult when assessing the psychological impact of a wrongdoing. Whilst noting that the plaintiff attributed many of the difficulties experienced in his life, such as changed jobs and difficulty forming lasting relationships, to the discovery of the abusive behaviour of the defendant, O’Donnell

J. observed that some difficulties in life may not be capable of being traced to any single event. Furthermore, the assessment was confounded by the fact that over a considerable period the plaintiff had been entirely unaware of the abuse having blanked it from his memory. O’Donnell J. noted that there must be some correlation between the figures awarded for injuries of this nature and general damages awarded for catastrophic personal injuries resulting in some cases in quadriplegia or severe brain damage from a very young age. He stated that there is regrettably a spectrum with which the courts are familiar, and every case must be located on that spectrum. Although the case was significant and serious, it was not at the most extreme end of the scale. I fully accept these observations and pause only to observe that the present case is at the most extreme end of the scale.

147. In Walsh v. Byrne [2015] IEHC 414 White J., allowed a figure of €200,000 (to include aggravated damages) in a case where a child had been groomed for sexual abuse consisting of regular inspection and masturbation of the victim’s genitals on the pretext of a supposed medical examination. It will be apparent that the nature of the abuse in the present case is significantly more grave than that at issue in Walsh v. Byrne. Likewise, the consequences for the plaintiff are significantly more severe and traumatising.

148. In GFB v. TB [2016] IEHC 97, Barr J. allowed a figure of €105,000 for sexual abuse, which can be characterised as at the lower end of the scale, in that it did not include acts of rape or oral sex. This abuse had been carried out over a number of years when the plaintiff was between seven and ten years of age. The defendant was in a position of trust in relation to the plaintiff as he was living in the family home as a partner of the boy’s mother. Whilst it was not contended that the abuse had caused any definable physical or psychiatric injury to the plaintiff, he had nevertheless undertaken counselling over a prolonged period of time (which was continuing at the time of the hearing). Barr J. also awarded aggravated damages to the value of €25,000 because the defendant had alleged that the plaintiff had been coached by his father to make false allegations against him. GFB v. TB can also be distinguished from the present case on that basis that the abuse did not include rape and, further on the basis that the present plaintiff has been diagnosed as having suffered a serious psychiatric injury which is ongoing.

149. In Connellan v. St. Joseph’s Kilkenny [2006] IEHC 119, the plaintiff brought proceedings against an orphanage which he had attended as a minor. During his time at the institution, he had been subjected to false imprisonment in a cupboard, repeated physical beatings, instances of sexual assault and racial abuse. The sexual assault consisted of fondling the plaintiff’s genitalia inside and outside his clothing and acts of oral sex. O’Donovan J. awarded the plaintiff €300,000. This consisted of €200,000 for past general damages, €50,000 for future general damages and €50,000 in aggravated damages to reflect elements of oppressiveness, arrogance and outrage in the defendant’s conduct.

150. In Donoghue v. Connolly, the child sexual abuse had taken place over a period of years and included the penetration of the vagina by fingers, hand and tongue. The victim suffered ongoing depression and stress as an adult, which contributed to a worsening of a bowel condition. Gearty J. awarded €125,000 for the assaults themselves and the psychological sequelae thereof and €20,000 to reflect the physical consequences of the stress which manifested in the worsening of her bowel condition. An amount of €25,000 for damages into the future was also awarded, making a total award of €170,000.

151. It is abundantly clear that a higher amount than that which was awarded in the cases summarised at paras 144-150 above is justified in the present case having regard to the greater severity of both the sexual abuse, the psychological sequelae and the impact on the plaintiff’s life. Unlike the victims in the above cases, the plaintiff was repeatedly raped and she has been diagnosed with PTSD. On the evidence of Dr. Norton, it is likely that, even with intensive therapy, the plaintiff will not come close to recovery for a further five to seven years.

152. In Brennan v. Mullan [2015] 4 IR 385 (“Brennan”), the plaintiff, an eight year old student at a local National School worked at a monastery garden where for a number of years, he was groomed and subjected to escalating sexual assaults including fondling, masturbation, oral sex and anal sex on an almost a daily basis. In considering quantum, Cross J. noted that he had not been addressed by the parties in relation to quantum. It appears that MN was not opened to the court. The sexual abuse suffered by the plaintiff was the most extreme that Cross J. had seen in his career. The plaintiff had suffered severe injuries which affected him throughout his life and which were still affecting him. However, Cross J. observed that the plaintiff had been substantially rescued by the love of a good woman, the benefits of fatherhood and the beneficial effects of ongoing counselling which rendered his future far more hopeful than his past. Therefore, whilst the plaintiff’s prognosis was guarded with a potential for ongoing mood swings, there were other favourable indicators. Thus, although the plaintiff had suffered severe abuse over an extraordinarily long period, he had essentially triumphed over adversity and was a credit to his profession in An Garda Síochána. General damages were assessed at €370,000: to include €20,000 for loss of opportunity and €50,000 future damages. At the time of this judgment, the upper limit on general damages was €450,000.

153. Although Brennan is in certain respects similar to the present case, there are also important distinctions. Because it was perpetrated by an outside party, the plaintiff’s home life was not destroyed by the abuse. Unlike the plaintiff in the present case, the plaintiff in Brennan was not abused in his own home by a perpetrator in loco parentis. By contrast, the plaintiff in the case before me was at constant and permanent risk of abuse with no possibility of respite. In Brennan , the plaintiff had started a family and was in a loving relationship. Further, it appears that his career was not particularly impacted by the abuse. Finally, Cross J. clearly took the view that with the benefit of counselling, the plaintiff had already improved significantly and had a favourable prognosis which no doubt was reflected in the award of future general damages of €50,000. None of these positive observations unfortunately apply to the plaintiff in the present case.

154. Finally, in AB, Simons J. considered quantum in the case of a plaintiff who had been subjected to repeated sexual abuse by her father and uncle respectively, from when she was aged seven until she was fifteen. The sexual abuse by the plaintiff’s father took the form of groping her breasts, exposing the erect penis and touching of and digital penetration of the plaintiff’s vagina. These acts of abuse occurred in the family home, in the family car and elsewhere. The sexual abuse by the plaintiff’s uncle commenced at a later stage in life when the plaintiff was about thirteen years old and ceased approximately two years later. It was, however, far more serious in that it involved rape, albeit it appears a single act of rape. Of note, the plaintiff in AB had also been raped by her parental cousin over a number of months at approximately age seven. The plaintiff’s family put her under intense pressure not to report the sexual abuse of her father and it is apparent that her family life was fractured. Ultimately, both the plaintiff’s father and uncle were sentenced to imprisonment. The psychiatrist who gave evidence on behalf of the plaintiff concluded that she had suffered from complex PTSD, an eating disorder and panic attacks. The plaintiff had completed multiple acts of self-harm. She had been hospitalised on approximately fifty occasions, a significant proportion of which were suicide motivated. On at least one occasion, the plaintiff had to be admitted to intensive care. The plaintiff had permanent scars on her arms. She had also suffered very significant gynaecological and gastrointestinal difficulties, albeit that no gynaecologist or gastroenterologist gave evidence as to causation. The plaintiff continued to suffer from insomnia, nightmares, diminished concentration and memory. In addition, the plaintiff’s ability to sustain intimate personal relationships was adversely affected. On the other hand, it must be observed that the plaintiff had finished school and had completed a third level course at University for which she was honoured a 2:1 degree. She had been able to obtain employment with an employer who was accommodating towards her mental health difficulties.

155. Simons J. concluded that the acts of sexual abuse committed by both perpetrators could hardly have been more serious, involving persistent and continuous assault and rape. The case involved a grave breach of trust. Having regard to all the circumstances of the case, Simons J. assessed damages for pain and suffering to date at €275,000. An additional sum of €75,000 was awarded for pain and suffering into the future. The latter more modest sum reflected the fact that the period of greatest injury occurred during the currency of the sexual abuse and in the years immediately following its disclosure and the fact that the plaintiff had put in place coping mechanisms, reducing the overall impact. Simons J. noted that the overall figure for damages of €350,000 was reflective of the sum awarded by the Supreme Court in MN. Indeed, he noted a remarkable similarity between the facts of MN and the case before him. Simons J. did not attribute a specific and separate sum for aggravated damages. However, noting that the plaintiff had been sexually abused by the very people who should have protected her, which is likely to have undermined her capacity to trust other people and exacerbated her difficulties in forming intimate relationships, Simons J. reflected this aggravating factor in the overall award of €350,000.

156. There are many similarities between the present case and AB. In both cases, the sexual abuse lasted for many years. In both cases, the plaintiffs were diagnosed with suffering PTSD. In both cases, the plaintiffs continue to suffer from ongoing sequelae such as insomnia and diminished concentration. The ability of both plaintiffs to sustain intimate relations has been adversely affected. In both cases, the factual and medical evidence establishes that the period of greatest injury to the plaintiff occurred during the sexual abuse and in the years immediately following disclosure.

157. On the other hand, there are also important distinctions which render the present case even more grave than AB. It appears that in AB that the plaintiff was subjected to a single act of rape by her uncle which stands in sharp contrast to the plaintiff in the present case who was subjected to hundreds of acts of rape over the course of eight years. In AB, the plaintiff had also been raped by a paternal cousin which undoubtedly contributed to her particularly severe psychological symptoms. In the present case, there is no such confounding variable. Further, whilst the impact of the grave breach of trust in AB was exacerbated by the attempts of her family to prevent her from making full disclosure to An Garda Síochána, in the present case, the fallout from the plaintiff’s revelation of abuse was nothing short of catastrophic. She was rendered homeless and her relationship with her only family, her siblings for whom she felt responsible, has been fractured causing the plaintiff ongoing shame and guilt. These elements appear to have no parallel in any of the other cases considered to date. In addition, in AB, the plaintiff had fortunately managed to complete her education and obtain a college degree. In the present case, the plaintiff’s education was entirely disrupted by both the sexual abuse itself and by the impact of reporting same, to the extent that six years later she has still been unable to return and complete her degree. This causes the plaintiff ongoing feelings of failure and worthlessness.

Conclusion on general damages

158. I have characterised the nature and severity of the abuse suffered in this case as the “worst case scenario”. The plaintiff was subjected to the cruelty of hundreds of acts of rape throughout her adolescence. What the plaintiff had to endure as a vulnerable child at the hands of Mr. Murray is nothing less than an obscenity. The severity of this abuse and its consequences for the plaintiff demand, in justice, a very substantial award of general damages which moreover must exceed awards made in the previous child sexual abuse cases already discussed.

159. Aside entirely from the depravity of the assaults and the rapes themselves, other aspects of Mr. Murray’s behaviour were and remain a source of the agony to the plaintiff. The egregious breach of trust stemming from the fact that the plaintiff was abused by the very person who should have protected her has destroyed her ability to trust other people. This causes difficulties in forming friendships and intimate relationships and has led to hyper-vigilance in relation to her own daughter. Mr. Murray’s cynical and continuous threats to the integrity of the plaintiff’s family and his manipulation of the dynamics between the plaintiff and her siblings left the plaintiff entirely isolated throughout her childhood years. This same dynamic meant that when the plaintiff ultimately reported the abuse, she was separated from her siblings and made homeless. Her relationship with her siblings and the guilt that she feels towards them will probably never be resolved.

160. On the other hand, the plaintiff has tried, with some success, to protect her psyche from the worst of this trauma through dissociation. The plaintiff has simply not permitted herself to engage, in any way, with her past or present trauma. She has not allowed this trauma to devastate her life and, against all odds, the plaintiff has been able to engage in society. She has not, for example, committed acts of self-harm or required inpatient treatment. She has been able to complete school and to commence (but not complete) university and has been able to be a good mother to her daughter.

161. Through her strength, bravery and determination, the plaintiff has somehow kept her life if not on track, at least near to the tracks. Whilst in no sense underestimating the very serious nature of the injuries suffered to date, I therefore believe they do fall short of the highest category of award. Paradoxically, the plaintiff’s own resilience means that despite the severity of the abuse suffered, general damages at the upper limit are not appropriate in this case, particularly because as I explained above, I cannot award aggravated or exemplary damages.

162. It must be emphasised that although the plaintiff is functioning in society this is at a significantly diminished level having regard to her innate intelligence and ability. Were it not for the sexual abuse suffered, the plaintiff would in all likelihood have a thriving career, a relationship with her siblings and have gained many of the milestones that make up a happy, healthy life.

163. The plaintiff’s strong exterior is not representative of her true inner world. The very coping mechanism that has allowed the plaintiff thus far to function, namely her dissociation, has also impeded, and indeed prevented any real recovery to date. Although the plaintiff is still at an age where, with these proceedings behind her, she can hopefully build a reasonably good life, even partial recovery will require an extensive and undeniably traumatic process of therapy which will absorb further precious years of her life. Having carefully considered the evidence of Dr. Norton, I find as a fact that the plaintiff is unlikely to make any meaningful recovery for between five and seven further years. This will be a long, difficult and distressing process for the plaintiff. As such a significant sum must be awarded for general damages into the future.

164. Having regard to all of the above and to the overall circumstances of the case, I assess damages for pain and suffering to date at a level somewhat above AB, €325,000.

165. In AB, Simons J. awarded an additional sum of €75,000 for pain and suffering into the future. Having regard to the matters discussed above, damages for future pain and suffering are assessed at €125,000.

166. Total general damages are therefore €450,000. The total amount of general damages which I award is greater than has previously been awarded for child sexual abuse cases. It reflects the factors outlined by Denham J. in MN, specifically the nature, severity, timing and duration of abuse and the severity of the injury to the plaintiff. This award is in my view in proportion to other recent awards for child sexual abuse. It is furthermore fair to both the plaintiff and the defendant. I also believe that the award is proportionate to the general scheme of damages and to the currently prevailing upper limit on general damages.

Consideration of special damages

167. The plaintiff claims net loss of earnings from 1st October, 2020 to 19th March, 2025 and also advances a claim for future loss of earnings.

168. I am satisfied that as a result of the reporting of the rape the plaintiff was made homeless and was unable to complete her degree. I am further satisfied that as a result of her psychological injuries, and in particular low self-esteem, low confidence and diminished concentration, and further because she was made homeless as a result of reporting the abuse, the plaintiff was unable to complete college. As a result, she was unable to commence employment as a social worker.

169. I am also satisfied on the balance of probabilities that were it not for the above, the plaintiff would have graduated as a social worker in 2019 and after an additional year obtained a level 8 degree. She would therefore have been capable of commencing employment as a social worker in October 2020.

170. I am further satisfied on the basis of the evidence of Byrne Actuaries, that average earnings for a social worker commence at €40,000 per annum. I am satisfied that deducting the plaintiff’s earnings in the period in question, the plaintiff’s net loss of earnings to date is €71,728. To allow for the contingencies discussed in Reddy v. Bates [1983] IR 141, I will make a 10% deduction in that figure. The total amount for past loss of earnings is therefore €64,555.

171. I am satisfied that the plaintiff will in due course be in a position to return to college, complete her degree and commence employment as a social worker. I find that the plaintiff will in all likelihood obtain her level 8 degree in the next two, or at most, three years. I will award the plaintiff a figure to cover her net future loss of earnings for a further three years from today’s date in the total amount of €30,447. This figure will allow the plaintiff to cut back somewhat on her current working hours in order to study for her degree

172. The plaintiff also claims the costs of estimated accommodation to age 23. However, it is accepted that the plaintiff did not actually outlay accommodation costs in this amount due to the generosity and compassion of Ms. Mullen. A claim for accommodation costs is not therefore made out.

173. The plaintiff maintains that Mr. Murray would have benefited from payments of aftercare allowance in the amount of €300 a week, which ought to have been passed on to her but which he kept for himself. However, this aspect of the claim is insufficiently vouched. In the absence of proof that Mr. Murray was paid this amount, I make no award in respect thereof.

174. I will award the plaintiff the costs of her future treatment which are estimated at between €80 to €125 per week for a period of five to seven years. I will award the plaintiff the average sum of €100 per week for seven years totalling €33,000 approximately.

175. Accordingly, the total award for this case is €450,000 general damages and €128,000 special damages, totalling €578,000.

The impact of the plaintiff’s settlement with Tusla upon her action against Mr. Murray The parties’ submissions

176. It is finally necessary to consider the impact of the plaintiff’s settlement with Tusla upon her damages claim against Mr. Murray.

177. The parties argue that the answer to this query turns upon whether Mr. Murray and Tusla are, or are not, concurrent wrongdoers.

178. The Attorney General contends that Mr. Murray and Tusla are concurrent wrongdoers. Section 12 of the 1961 Act imposes joint and several liability on concurrent wrongdoers. In accordance with section 17 (1) of the 1961 Act, settlement with one wrongdoer (Tusla) discharges the other wrongdoer/s (Mr. Murray), only if the settlement indicates an intention that the other wrongdoers are to be discharged. The settlement with Tusla does not do this. Therefore, assuming again that the parties are concurrent wrongdoers, section 17 (2) of the 1961 Act would require that the plaintiff is identified with the settling wrongdoer (Tusla) in any action against the other wrongdoer/s (Mr. Murray). In practice, this would mean that if Mr. Murray and Tusla are concurrent wrongdoers, then the court must deduct from the total amount of compensation payable to the plaintiff the greater of Tusla’s settlement payment (€250,000) or the amount which Tusla would have been liable to contribute if the plaintiff’s total claim had been paid by Mr. Murray.

179. The plaintiff contends that Mr. Murray and Tusla are not concurrent wrongdoers and that each caused her “independent items of damage of the same kind” within the meaning of section 12(2) of the 1961 Act. She argues that, in accordance with that section, the court may apportion liability between these respective defendants in such a manner as may be justified by the probabilities of the case. The plaintiff maintains that, under this scenario, the court would not necessarily be required to deduct from the damages payable to her the greater of Tusla’s settlement payment (€250,000) or the amount which Tusla would have been liable to contribute.

Are the defendants concurrent wrongdoers?

180. Section 11(1) of the 1961 Act provides that: “…two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person… for the same damage, whether or not judgment has been recovered against some or all of them.”

181. The Act provides that “damage” includes loss of property, loss of life and personal injury”, and further, ““personal injury” includes any disease and any impairment of a person’s physical or mental condition…” The Act does not specify how the “same damage” element of section 11(1) should be interpreted.

182. Section 11(2) provides that, without prejudice to the generality of subsection (1), persons may become concurrent wrongdoers as a result, inter alia of vicarious liability, breach of joint duty, or independent acts causing the same damage. Section 11(2) also provides that the wrongs in question may be a tort, breach of contract or breach of trust, or any combination of them and that it is immaterial whether the acts constituting the concurrent wrongs are contemporaneous or successive.

183. Counsel for the plaintiff argues that the plaintiff had already suffered damage, in the form of a distinct injury at the hands of Mr. Murray, before Tusla committed any wrong. Although there was an overlap between the damage caused by both defendants later in the sequence of events, there was nonetheless a period of time over which significant and compensable damage was inflicted by Mr. Murray in a manner which was entirely separate and distinct from that caused later by the defendants’ joint negligence. She therefore argues that either (a) Mr. Murray and Tusla were not responsible to her for the same damage and were therefore not concurrent wrongdoers or (b) that they were concurrent wrongdoers in respect of some, but not the entirety, of the damage suffered.

184. Although this might perhaps be a reasonable argument in another case, the plaintiff’s pleaded case does not allege that Tusla’s negligence only commenced at a later point in the sequence of events. On the contrary, she pleads that Tusla’s negligence commenced before she was even placed in Mr. Murray’s foster care. The plaintiff pleads that Tusla was negligent in, for example, placing her in a foster home with an unsuitable foster father and in failing to carry out sufficient checks or due diligence prior to the placement.

185. As the plaintiff has now settled with Tusla, it cannot be known whether these allegations would ultimately have been made out. However, the pleaded case does not support the plaintiff’s legal argument that the defendants are not concurrent wrongdoers. The plaintiff obtained judgment in default of appearance against Mr. Murray. He did not participate in the proceedings or in the hearing before this court. In such circumstances, it would not be appropriate to decide an issue against him in a manner which goes beyond and indeed is inconsistent with the pleaded case.

186. I therefore accept the Attorney General’s submission that Tusla and Mr. Murray are concurrent wrongdoers and that no “independent items of damage of the same kind” are made out. The plaintiff suffered damage as a result of the tortious and criminal actions of Mr. Murray and that damage was not prevented, interrupted or ameliorated by Tusla, as it ought to have been.

187. In accordance with section 17(2), I therefore accept that the plaintiff should be identified with Tusla as this court proceeds to consider the plaintiff’s claim against Mr. Murray.

Deduction of the greater of Tusla’s settlement payment (€250,000) or the amount which Tusla would have been liable to contribute

188. As I have found that the defendants are concurrent wrongdoers; I must now consider which is greater: the actual amount of the settlement with Tusla or the hypothetical proportion of the damages which Tusla would have been liable to pay if Mr. Murray had been found liable for the whole amount and had then sought a proportionate contribution from TUSLA.

189. A similar issue arose in AB. It will be recalled that the plaintiff has taken an action for damages arising from child sexual abuse against her father, her uncle and the HSE, as concurrent wrongdoers. The plaintiff settled her claim against the HSE before the trial of the civil action for €130,000. As noted above Simons J. then assessed the total amount of the damages at €350,000.

190. It was accepted by the plaintiff and both remaining defendants that the two perpetrators and the HSE were concurrent wrongdoers. In considering the application of sections 17(2) and 35 of the 1961 Act, Simons J. stated as follows: It is not necessary, for the purpose of the resolution of the present proceedings, to embark upon a detailed assessment of the wrongs alleged to have been done by the Health Service Executive and their contribution, if any, to the overall injury suffered by the plaintiff. This is because the amount of the settlement (€130,000) is so large relative to the overall assessment of damages. The damages have been assessed at €350,000. The amount of the settlement is equivalent to 37 per cent of the assessed damages. The only circumstance in which the Health Service Executive would have to contribute more than the amount actually paid in settlement would be where the court determined that the HSE’s proportionate share of liability for the injury suffered by the plaintiff exceeded 37 per cent. There is nothing in the evidence before the court which would justify the allocation of such a significant part of the blame to the Health Service Executive.” (emphasis added)

191. I adopt this logic. I have no doubt that Tusla bears some responsibility for the personal injuries suffered by the plaintiff in that it failed to safeguard and protect her, to respond to her complaints that Mr. Murray was abusive and occasionally physically violent and thereafter to remove her from this abusive situation. It is also conceivable that some liability could attach to Tusla for failing, in the years immediately following the reporting of the rape, to assist the plaintiff in any way with housing or indeed to continue to fund her counselling. Both of these elements clearly caused further injury and trauma to the plaintiff and delayed her recovery.

192. However, it is unarguable that by far the most significant psychological injury suffered by the plaintiff were caused by the criminal acts of Mr. Murray. The plaintiff did not inform Tusla of the sexual abuse until after it had ceased when she reported the matter to An Garda Síochana. As in AB I believe it is sufficient for the purposes of the exercise under section 17 of the 1961 Act, to find that whatever contribution the shortcomings of Tusla may have made towards the trauma suffered by the plaintiff it is minor relative to the trauma caused by Mr. Murray.

193. In such circumstances, whilst I accept that Tusla and Mr. Murray are concurrent wrongdoers, I can see no circumstances in which I could find that Tusla’s proportionate share of liability for the injury suffered by the plaintiff exceeds €250,000. As in AB the amount of the settlement (€250,000) is large relative to the overall assessment of damages. The amount of the settlement is slightly less than 45% of total the assessed damages. There is nothing in either the pleadings or the evidence before the court which would justify the allocation of blame to Tusla exceeding that percentage.

194. Accordingly, the application of section 17 of the 1961 Act to the circumstances of the present case has the effect of reducing the total damages recoverable against Mr. Murray by €250,000. Subtracting this amount from the total damages award of €578,000 leaves a balance of €328,000.

Conclusion

195. I therefore grant the plaintiff judgment against Mr Murray in the amount of €328,000.